Toledo councilman McCloskey stays silent in lawsuit over zoning

10/5/2004

Toledo City Councilman Bob McCloskey claimed his Fifth Amendment right not to incriminate himself in a deposition given in a $10 million civil lawsuit against him and the city.

Mr. McCloskey declined to answer when asked whether a rezoning request sought for a Pilkington PLC property in East Toledo hinged on the payment of $100,000 to a local community center, according to a copy of the deposition obtained by The Blade.

"Based upon the advice of my counsel, Mr. [Jay] Feldstein, I hereby invoke my Fifth Amendment privilege and refuse to answer the question on the basis that my answer may tend to incriminate me," Mr. McCloskey said.

It was one of about a dozen times that Mr. McCloskey responded by asserting his privilege under the Fifth Amendment. The Fifth Amendment to the Constitution gives witnesses the right not to give testimony that could be used against them in court.

The suit, filed in May by EJS Properties LLC of Okemos, Mich., in U.S. District Court, accuses Mr. McCloskey of influencing other members of council to defeat its request to rezone the former Pilkington technical center at 1701 East Broadway because the firm wouldn't agree to Mr. McCloskey's request for a $100,000 contribution to a Pilkington retirees' fund.

The suit also claims council's denial of the rezoning was "arbitrary and capricious" because it was not related to legitimate land use issues.

Some of the questions in the June 25 deposition focused on three transcripts of voice mails purportedly left by Mr. McCloskey, a Pilkington retiree, with three people: Erich J. Speckin of EJS Properties, who had an agreement to buy the property from Pilkington for $1.2 million; John Keil, Pilkington's director of property management, and Randall Berg, Pilkington's vice president of industrial relations and human resources planning.

In a transcript of one of the alleged voice mails, Mr. McCloskey is quoted as saying: "This project is not going to happen. Pilkington and Libbey-Owens-Ford [Co., Pilkington's predecessor,] are not coming to the table with anything to help. I have the votes on council to stop the project."

In another alleged voice mail transcription, Mr. McCloskey allegedly said, "I am still looking to receive a check for $100,000 to the East Toledo Family Center."

It was not clear why the payment would be made to the East Toledo Family Center when the suit alleges the money was to be for a prescription drug fund for Pilkington retirees. Mr. McCloskey, Mr. Feldstein, and Michael Matheson, attorney for EJS, declined comment on the testimony.

City Law Director Barbara Herring also declined comment. In its formal reply to the lawsuit, the city denied the allegations against Mr. McCloskey.

During the deposition, Mr. Feldstein told EJS's attorney that he advised Mr. McCloskey to take the Fifth because the term "extraction payment" used in the lawsuit to describe the $100,000 payment "can certainly be characterized as other things." He called it a "euphemism" but stopped short of saying for what it might be a euphemism.

Mr. McCloskey had come under political pressure from Pilkington retirees who blamed him for negotiating the retirees' prescription benefits when he was a union official at Pilkington. Mr. McCloskey has acknowledged the political pressure but said he had no personal interest in the fund because he gets his benefits through the city.

If approved, the rezoning would have allowed Mr. Speckin to lease the facility to the Leona Group of East Lansing, Mich., to open Lake Erie Academy charter school, now located on Central Avenue in West Toledo.

The rezoning from M-2 industrial to M-3 planned industry was approved by the Toledo Plan Commission on June 13, 2002, after Mr. McCloskey publicly endorsed it. It cleared council's zoning and planning committee on July 17, 2002, on a 7-0 vote, again with Mr. McCloskey's backing.

But before council's final vote on Aug. 27, 2002, Mr. McCloskey changed his stance and said he was opposed to the rezoning. Council voted 7-4 to deny the rezoning. In the deposition, Mr. McCloskey denied talking to any council member about the rezoning between Aug. 1 and the vote on Aug. 27.

In January, 2004, City Council approved rezoning of the parcel, plus additional land, to residential to allow Toledo Public Schools to build a middle school campus on the property along East Broadway near Oakdale Avenue.

The civil trial has been tentatively set for October, 2005.

Contact Tom Troy at:

tomtroy@theblade.com

or 419-724-6058.