Depositions allege McCloskey sought cash for council vote

11/20/2005

Sitting at lunch in an East Toledo restaurant on the Maumee River, Randall Berg was stunned.

The Pilkington North America executive had just been told by a Toledo politician that if Pilkington wanted a 15-acre parcel rezoned by Toledo City Council, the price would be $100,000.

The politician was Councilman Bob McCloskey, representative of the 3rd District, which includes East Toledo where the parcel was located.

The money was needed to help pay for prescription drugs for Pilkington retirees, Mr. McCloskey told Mr. Berg and his colleague, John Keil, director of property management and environmental affairs for Pilkington, who was also at the lunch.

It would have to be paid to the East Toledo Family Center, possibly to pay for bus transportation for retirees buying drugs in Canada.

"He told me that's how business works in the city if you want to get something done," Mr. Berg testified.

The lunch meeting is recounted by Mr. Berg and Mr. Keil among hundreds of pages of sworn depositions on file in a lawsuit in U.S. District Court seeking $10 million from the city of Toledo and Mr. McCloskey.

Filed by EJS Properties LLC, the company of Erich J. Speckin of Okemos, Mich., in May, 2004, the suit claims that Mr. McCloskey in 2002 requested $100,000, and after not receiving the cash worked to defeat Mr. Speckin's deal with Pilkington to rezone the 15 acres to build a new charter school.

The suit claims the $100,000 would have benefited Mr. McCloskey personally because he is a Pilkington retiree and because he was the union official who had negotiated the prescription drug benefit and was under fire from fellow retirees for the capping of drug benefits.

Since then, 18 people have given sworn depositions, including nine city councilmen, Mayor Jack Ford, and three of the mayor's top aides.

Mr. McCloskey and the city have denied the legal claims in the lawsuit. Their lawyers have submitted motions to U.S. District Judge James Carr saying the lawsuit should be dismissed.

Defending Mr. McCloskey has already cost the city more than $38,000 in legal bills. And on Friday, the city's law director forwarded an ordinance to City Council asking for $50,000 more to pay for Mr. McCloskey's outside lawyer, Jay Feldstein.

Mr. Feldstein on Friday night declined to comment and said he had advised Mr. McCloskey not to comment because the case is pending before a judge.

Mr. McCloskey recently was elected to a new four-year at-large term on council while in the middle of his District 3 term. He wants to be elected the next president of Toledo City Council when council reorganizes Jan. 3. On Friday, he was not actively campaigning for the post.

According to court records, Mr. Speckin had agreed to buy part of the 43-acre former Pilkington Technical Center at 1701 East Broadway. The purchase was conditioned on Mr. Speckin's and Pilkington's ability to get City Council to rezone the industrial property to allow it to be used for a school.

At first, Mr. McCloskey supported the rezoning. In June and July of 2002, he made personal appearances in front of the Toledo Plan Commission and the Toledo City Council zoning and planning committee, urging passage of the rezoning. Both bodies endorsed the rezoning unanimously.

But to get it to the next level - a vote of City Council - Mr. McCloskey allegedly set a price.

According to Mr. Keil's and Mr. Berg's deposition, Mr. McCloskey met them for lunch in late July or early August, 2002, in the Docks restaurant complex in International Park.

Both Mr. Keil and Mr. Berg testified in their depositions that Mr. McCloskey wanted a $100,000 contribution to be paid to the East Toledo Family Center. Both men testified that the request had something to do with a benefit for Pilkington retirees, such as to buy buses to take retired people to Canada to buy their drugs.

Mr. Berg said he was angry and frustrated at the request.

"I asked him repeatedly, how did this relate to the selling of the Tech Center property?" Mr. Berg recalled. "I was angry about it and I expressed it to him."

Mr. Berg reminded Mr. McCloskey that he had already supported the measure twice in front of the plan commission and a City Council committee.

" 'You're going to look silly. You're not going to have any credibility,' " Mr. Berg testified he told Mr. McCloskey. "And he said he didn't care, he could change votes, he could postpone the thing."

Mr. Keil said the lunch was arranged to discuss the rezoning, and he had invited Mr. Berg because he knew Mr. McCloskey was going to discuss the prescription drug benefit that Mr. Berg had helped negotiate on behalf of Pilkington.

"We were taken aback by ... what we saw as a demand," Mr. Keil testified later, according to his deposition on file in U.S. District Court. "We felt incredulous that he would do something like this. I mean, we were just taken aback by it."

The luncheon remained calm, Mr. Keil said, even after he and Mr. Berg turned down the request and told Mr. McCloskey, "the issues were unrelated and we do not operate our business in that way."

Mr. Keil said Mr. McCloskey was known as "a unique character, a working man's politician, and not your typical shirt-and-tie bureaucrat."

Mr. Speckin testified that after he heard about the lunch meeting at The Docks, he called Mr. McCloskey and asked him what was going on.

"He told me he believed Pilkington needed to give something back to the community to make this project move forward," Mr. Speckin testified.

He said Mr. McCloskey went on to say that, if Pilkington would not supply the money, "would I be willing to give the money, or something along those lines."

"I was so stunned I really didn't know what to say," Mr. Speckin testified.

Later, Mr. McCloskey allegedly made his request for money in three taped voice mails.

In one call, Aug. 8, 2002, the councilman left a message for Mr. Speckin, the charter school developer: "This project is probably not going to happen. Pilkington and Libbey-Owens-Ford are not coming to the table with anything to help. I have the votes on council to stop the project. I don't wish to do this but Pilkington is not cooperating."

Mr. McCloskey was more direct with Pilkington's Mr. Berg in an Aug. 21, 2002, voice mail: "I am still looking to receive a check for $100,000 to the East Toledo Family Center."

On Aug. 27, 2002, council voted down the rezoning request by a 7-4 vote, after four council members who had supported the measure at the committee level on July 17 changed their votes.

Mr. McCloskey and the council members who voted against the rezoning said they did so because they decided the land should be retained for industrial uses.

But more than a year later, council voted unanimously to rezone the property for a Toledo Public Schools' middle school.

The deposition of Mr. Keil says that Mr. McCloskey's request for $100,000 was reported to some city officials, making the city liable for Mr. Speckin's financial losses.

"The city's utter failure to do anything after it learned about Mr. McCloskey's corrupt activities ... supports direct liability on the part of the city," the summary judgment motion, written by Mr. Speckin's lead attorney, Matthew Harper, says.

City lawyer Mark Schmollinger, in his argument in favor for summary judgment, contended that even if the worst is assumed about Mr. McCloskey's behavior, the city cannot be held liable for his wrongdoing.

Mr. McCloskey's lawyer, Mr. Feldstein, argued that Mr. McCloskey is entitled to immunity because he acted in his capacity as a legislator, and had expressed valid reasons to deny the rezoning.

But Mr. Harper argued that the concerns about industrial land never surfaced in Mr. McCloskey's discussions with Mr. Speckin, Mr. Berg, or Mr. Keil.

Contact Tom Troy at: tomtroy@theblade.com or 419-724-6058.