Lawmaker asks court to order Taft deposition

8/3/2005

COLUMBUS - State Sen. Marc Dann won't take no for an answer in his effort to question Bob Taft under oath about the governor's refusal to release communications from the state's top office.

Yesterday, the Democrat from suburban Youngstown asked the Ohio Supreme Court to order Mr. Taft to explain in a deposition why he believes he can use "executive privilege" to bar the release of records from his office.

At the same time, a group of lawmakers - including Democrats and at least one Republican - called on Mr. Taft's former chief of staff, Brian Hicks, to step down from his post on the Ohio State University board of trustees.

Both Mr. Taft and Mr. Hicks are immersed in the controversy that began in the Ohio Bureau of Workers' Compensation and has already led to the resignation of one of the governor's cabinet members and a criminal conviction for the former chief-of-staff.

Mr. Dann is suing the governor over his failure to release a series of weekly reports between his office and the bureau, which he believes could shed light on the agency's failed investments.

Mr. Taft has released weekly reports dating to the start of his first term from James Conrad, the bureau's former administrator-CEO, but he has maintained that he is not required to release the records because they are exempt from public records laws under "executive privilege." Yesterday, the governor's spokesman, Mark Rickel, said Mr. Taft does not plan to back down from that stance.

"The governor believes the executive privilege exists," Mr. Rickel said, adding that some records were released because the governor "felt it was in the public interest."

Mr. Dann argued in his filing yesterday that the governor should not be excluded from disclosing the nature of public business.

"The governor is saying to this court that he should be granted more power than the President of the United States has ever been granted," Mr. Dann said in the filing. "He says to this court that even though he acknowledges that the now-released, previously withheld documents are entirely or mostly unprivileged, he should have the right to withhold them because they might have been included in a weekly report that had other items which were of a privileged nature."

Two weeks ago, Mr. Taft released all weekly reports from Mr. Conrad, but omitted large sections of weekly reports to the governor from James Samuel, the former executive assistant for business and industry.

Kate Bartter, Mr. Taft's chief policy adviser, was deposed July 27 as part of the public-records lawsuit that Mr. Dann filed against Mr. Taft. Mr. Dann wanted to question Mr. Taft and other high-ranking aides under oath as part of the lawsuit.

But the governor's office made Ms. Bartter available, saying she "has personal knowledge as to the nature and handling of the weekly reports."

In the July 27 deposition, Mr. Dann's attorney, Frederick Gittes, referred to an Oct. 28, 2004, e-mail from Mr. Conrad to his personal assistant, Ben Taylor.

Mr. Conrad wrote that he had decided to keep information about the bureau's loss in a Bermuda-based hedge fund out of the weekly report to the governor because "we don't need it getting unnecessarily passed around."

Ms. Bartter denied there is a practice of withholding sensitive information from weekly reports to the governor because it might be distributed too widely.

"So when you read that in Mr. Conrad's e-mail, that came as a surprise to you?'' Mr. Gittes asked.

"Uh-huh,'' Ms. Bartter replied.

The deposition ended shortly after Ms. Bartter said she could not explain why large parts of Mr. Samuel's weekly reports to the governor were redacted.

Mr. Taft demoted Mr. Samuel on June 17, asserting that he had not passed on critical information last year about the bureau's $215 million loss in a Bermuda-based hedge fund.

Also, Kathleen Trafford, the special counsel representing the governor's office, told Mr. Gittes it wasn't a "reasonable request" to ask Ms. Bartter to go through a large stock of weekly reports and explain which ones were covered by "executive privilege."

As Mr. Dann continued his legal engagement with the governor's office, other lawmakers, including State Rep. Peter Ujvagi (D., Toledo), urged Mr. Taft to demand the resignation of Mr. Hicks from the OSU board of trustees.

Mr. Rickel, Mr. Taft's press secretary, said the governor won't ask Mr. Hicks to resign.

"There's no connection between Brian's failure to disclose and his duties as a board member ... Ultimately, the decision as to whether he can continue to serve as an effective board member is for Brian to make,'' Mr. Rickel said.

Shortly after Mr. Hicks resigned as chief of staff to become a lobbyist and consultant, Mr. Taft appointed him to the Ohio Water Development Authority, a post which provides state medical benefits. Mr. Rickel said Mr. Hicks, whose term expires in 2011, also will remain a member of that board.

Mr. Ujvagi said he was "disappointed" in the governor's position.

"The board of trustees holds students, faculty members, and athletes to a very high standard of conduct, and it seems to me no less should be expected of a member of the board of trustees,'' Mr. Ujvagi said.

State Sen. Tim Grendell (R., Chesterland) also called on Mr. Hicks to resign from the OSU board of trustees, along with his post on the Water Development Authority.

"When you breach the public trust, you should not be rewarded by either being appointed to or continue to be in a position of public trust,'' said Mr. Grendell, who is seeking the GOP nomination for attorney general in next year's election.

Last week, Mr. Grendell announced he will introduce legislation to prohibit any state official or employee found guilty of an ethics violation from acting as a lobbyist or serving on a state board or commission.

"How do you tell students we are trying to teach honesty and integrity to and that it is wrong to cheat, and then allow someone to stay on a board of trustees who has been convicted of breaching the public trust?'' Mr. Grendell said.

State Rep. Shawn Webster (R., Millville), chairman of the House Higher Education subcommitttee, said he understood Mr. Grendell's point, but he said it "seems a little drastic" for Mr. Hicks to resign from the OSU board. "In the scheme of things, he probably brings some expertise to that board that is fairly valuable, given his work for the governor,'' Mr. Webster said.

Dan Slane, chairman of the OSU board of trustees, and Mr. Hicks didn't return messages seeking comment yesterday.

Contact James Drew at:

jdrew@theblade.com

or 614-221-0496.