Everyone has known for a while that Hamilton County taxpayers are getting screwed by the Bengals stadium lease.
After voting in 1996 to fully fund the stadium's construction, taxpayers have been repaid with a mediocre football team and a possible $279 million deficit by the end of the stadium lease.
"This lease is like a chokehold on the necks of county taxpayers," says County Commissioner Phil Heimlich.
He sided with Commissioner Todd Portune in a vote March 10 to join a taxpayer lawsuit in federal court against the Bengals and the National Football League (NFL). The anti-trust suit accuses the Bengals and the NFL of using monopoly power to coerce the county into a lopsided deal. The county wants the lease voided and at least $200 million in damages.
The March 10 meeting featured a run-away commissioner, a pissed off prosecutor's office and a host of conflict-of-interest accusations that reveal some of the politics behind the stadium fiasco.
The decision to take on the Bengals was easy for Portune. In early 2003 he initiated lawsuits against the team in both state and federal courts.
The Ohio Ethics Commission (OEC) ruled in September that, as long as Portune was a plaintiff, he couldn't vote on whether the county should also sue.
"(The Bengals) made the accusation that I had a conflict of interest from the standpoint that I had an economic interest in the outcome of the litigation," Portune says.
"What they meant by that is not that I was going to recover money, but that depending on how the cases would resolve, I would lose less money personally under one scenario versus another."
Portune asked to substitute Hamilton County resident Carrie Davis as plaintiff in both cases. The federal court permitted the substitution, but the state court didn't.
Last month Portune filed to dismiss the state case, which is now in the First District Court of Appeals.
This is where things get strange. The Bengals filed an opposition to Portune's motion to dismiss his suit. In other words, the team wants Portune to keep suing them.
"Their strategy has always been to handcuff me so I can't participate in these matters," Portune says.
The ethical dilemma came to a head at the March 10 commissioners meeting, primarily because of Commissioner John Dowlin, who didn't bother to stick around for the vote.
Dowlin is the only remaining member of the board of commissioners that approved the Paul Brown Stadium lease in 1997. He's also the only commissioner who missed what Portune and Heimlich call one of the commission's most important decisions in recent times.
Dowlin told Portune and Heimlich he had an appointment at 12:15 p.m. and needed to finish before then. The commissioners advanced the lawsuit vote ahead of other items on the agenda to accommodate him. Dowlin then spent a good portion of time voicing concerns about the legitimacy of Portune voting for the county to join the suit in federal court.
Portune presented letters from the OEC and from Arthur Miller, a Harvard Law School professor specializing in ethics. The OEC stated that, until the court concludes Portune isn't a party to either suit, he would "be barred from participating in matters before the county commissioners related to the state or federal lawsuit." The letter doesn't mention Portune's motion to dismiss the state case.
The letter from Miller, however, takes into account Portune's attempt to dismiss the state case and the subsequent attempt by the Bengals to block him. Miller says he finds no ethical impediment to Portune's participation in matters relating to the lawsuit.
Dowlin found the OEC letter significant.
"I read this to say the court has to take action, and the court has not taken action," he said.
But that letter is outdated, according to attorney Bill Markovits, special counsel to the commissioners.
"The facts weren't fully in front of the Ohio Elections Commission, because at the time of the rendering of that opinion there had not been a motion to withdraw the appeal," he said.
The prosecutor's pickle
When it became apparent that Portune would vote despite Dowlin's objections, Dowlin said he had to leave.
"I just think this is a very, very important issue, John," he said.
"Well, you're either going to vote with or without me," Dowlin said. "I have to leave."
He then left for a speaking engagement before about a dozen members of the Downtown Exchange Club.
Portune says Dowlin's exit had less to do with keeping a date than with keeping alive the conflict-of-interest issue that the Bengals had hoped would prevent him from voting.
"John Dowlin actually could have eliminated any controversy about this at all if John wanted to pursue this action," Portune says. "He and Phil could have voted and that would have been 2-0 and that would have been that. The only conclusion I can come to is that John is doing the Bengals' bidding."
Dowlin's response is simple enough.
"Bullshit," he says.
The prosecutor's office typically serves as legal counsel for the commissioners. But because that office helped negotiate the Bengals lease, Portune says it has a conflict of interest. Prosecutors could be called as witnesses, so the commissioners hired Markovits, a lawyer with a background in anti-trust cases.
Portune says the prosecutor's office has consistently attempted to prevent his participation in the lawsuit against the Bengals.
Assistant Prosecutor Carl Stitch told the commissioners his office should have been consulted before they hired Stan Chesley's law firm to represent them in the Bengals case. But Portune and Heimlich cite a letter written by Stitch's predecessor, Brian Hurley, saying the prosecutor's office has a potential conflict of interest.
Hurley didn't mean the prosecutor's office should be entirely kept out of the discussion, Stitch says. He also says Portune's conflict of interest was inappropriately addressed.
"That's a question that should have been addressed by the Ohio Elections Commission, not by a Massachusetts law professor," he says.
"The prosecutor's office is really interesting," Portune says. "They truly do have a conflict of interest, yet they'll stand there with a straight face and say that's not a conflict."
Portune says the decision to join the lawsuit scares the prosecutor's office because of what might be revealed about its involvement in the lease negotiations.
"Bear in mind, they were active participants in what went on," he says.
"I find that insulting," Stitch says. "Mike Allen was not prosecuting attorney when this lease was negotiated, and I wasn't here when this lease was negotiated. I don't see why either one of us would have any concerns about any of that at all." ©