Hamilton County Commissioner Todd Portune says he can't do his job because of a new rule restricting the release of information about the prosecutor's office.
The rule applies to documents from the county prosecutor's office labeled "attorney-client privileged." By Ohio law, the prosecutor represents the board of county commissioners in civil legal issues.
The board passed a resolution June 5 saying two members must give approval before documents labeled "privileged" can be released to the public.
Commissioner Tom Neyer Jr. proposed the resolution. Commissioner John Dowlin supported it.
At issue is whether Portune will be able to publicly discuss what the prosecutor's office is working on and whether it's good public policy.
"I feel very compromised in my ability to do my job and in my ability to do the job of the people who elected me," Portune says.
The resolution raises fundamental questions about county government. Does the prosecutor represent county commissioners as individuals or only the board as a whole?
What is the penalty for breaking the new policy? Perhaps most interesting of all, who decides a document is "privileged" — the attorney or the client?
In his first 18 months on the board, Portune, a Democrat, has brought a new level of openness to a body occupied entirely by Republicans for the preceding 36 years. He has routinely handed out memos, letters and other documents to reporters and citizens used to the more cautious approach of other commissioners.
"What's mine is yours," Portune often says.
Some of the documents from the prosecutor's office — labeled "Confidential: attorney-client privilege" — have dealt with the trial of Thomas Condon, the photographer convicted of taking unauthorized pictures of corpses. Other documents have detailed the effort to lure Convergys Corp. to the Ohio riverfront.
Portune based his 2000 campaign on open government, arguing that closed-door meetings and privileged communications are part of the reason Paul Brown Stadium ran more than $50 million over budget. The former board knew of the budget problems for several months before disclosing them.
Portune, an attorney, believes most of what politicians and bureaucrats talk about in legally closed meetings — commonly called "executive sessions" — shouldn't be kept secret.
Everything the prosecutor's office sends Portune is labeled "privileged," even though little of it should be, he says.
"It's all about the public business of the board and how we are represented by our attorney," he said June 5.
At the meeting, Neyer said his resolution was also about the best interests of the public.
"To me, I recognize and support and conspicuously applaud that the vast majority of the public's work is most effectively done in the public," he said. "However, I believe the public deserves the same legal protections that any of us as private citizens expect from our own attorneys."
This is especially true in property purchases, performance evaluations and lawsuits, according to Neyer.
First Assistant Prosecuting Attorney Brian Hurley agrees. The new policy reflects Ohio law, he says.
"To take any other approach would have a significant negative effect on how the county conducts its business," Hurley says.
Convergys the last straw
Portune was a member of Cincinnati City Council for seven years. The city hires its top lawyer. City attorneys attend council meetings and respond to a steady stream of council members' requests.
But the county prosecutor is an elected official who operates with much greater independence. Prosecutors specialize more than city attorneys and don't attend every county commission meeting.
Portune and County Prosecutor Michael Allen have tussled almost since Portune took office in January 2001. It began with what Portune thought was a routine request. On Jan. 18 he asked the prosecutor's and coroner's offices to make sure relatives of the subjects of Condon's morgue photographs had been notified.
In response, Allen sent a two-page letter assuring Portune the matter was being handled. But Allen went on to tell Portune that commissioners' responsibilities "do not include the oversight or supervision of other elected county officials ... Your memorandum instructing this office on specific steps to take in connection with our handling of the pending investigation is therefore inappropriate."
Portune responded by pointing out the commission approves all county budgets and generally determines the county's policies.
"This is a responsibility that I will not shrink from and which I intend to carry forward with due diligence," Portune wrote.
It would be naïve to talk about these issues without considering politics. Portune is the highest-ranking Democrat in a very Republican county government — one where Allen and Sheriff Simon Leis, both Republicans, ran unopposed in 2000.
Allen was co-chair of the Hamilton County Republican Party when it appointed Neyer to fill a vacancy on the board.
"One on one, I get along with Mike (Allen) fine and with individuals in his office," Portune says.
But Portune has publicly disagreed with Allen on many issues: whether to re-try Cincinnati Police officers charged in the death of Roger Owensby Jr., whether to publicly discuss a federal lawsuit over illegal sewage discharges and whether the commissioners should hold so many executive sessions.
As recently as last month, Portune and Allen seemed willing to agree to disagree, according to exchanges between their offices. Portune offered to ask the Cincinnati Bar Association to mediate the disputes, but the prosecutor's office declined, Portune says.
Then Portune gave The Cincinnati Enquirer a copy of a staff report about the potential costs of luring Convergys to the riverfront. The prosecutor's office had already turned down the newspaper's public records request.
The resulting May 31 Enquirer story might have alerted Hilltop Basic Resources that the county was interested in buying its riverfront property to relocate Bengals parking and make room for Convergys.
Six days later Neyer and Dowlin passed the new policy restricting the release of documents from the prosecutor's office.
Portune has written Neyer, Dowlin, Hurley and County Administrator David Krings, asking:
· Who determines what is privileged, and how are disputes resolved?
· Who would represent a commissioner in that situation?
· What are the consequences for releasing a privileged document?
Portune says he doesn't feel he has legal representation now and he's not sure what to do next.
Krings, also unsure, wrote other county administrators, looking for some sort of legal precedent or advice. Dowlin has asked the County Commissioners Association of Ohio for advice.
"The real question in my mind is, 'How do you enforce it?' " Dowlin says.
Right and wrong
Portune is both right and wrong, according to lawyers well versed in these issues. The commission as a whole sets legal policies, but Portune as an individual has some rights.
Whom does the prosecutor represent?
"That's a very good question," says attorney Robert Manley, who has represented public bodies around the country. "I've always taken the position that I represent the body...Portune is probably both right and wrong in the sense that any board member should be able to call up and get legal advice."
"It's definitely not that it takes a vote of two to get a legal opinion," says Tom Keating, law director for the city of Sharonville.
Keating believes one commissioner couldn't release a document that a majority of the board says is privileged, but he doesn't know of any law that specifies a penalty for doing so.
"That's where it really gets to be confusing," Keating says.
But there are clear guidelines against releasing information that gives away a political body's hand during property negotiations, Keating says. If a property owner knows the government wants the land, the price often doubles or triples, he says.
"It just destroys the ability of the government to negotiate in good faith," Keating says.
Such a disclosure could lead to a lawsuit for financially damaging the political body's — and therefore the taxpayers' — interests.
Yet, although the prosecutor's office is the county's legal advisor, the ultimate authority of what is private is the client, according to Keating.
He also made a point about the new policy that gets overlooked in legal discussions.
"It may be very bad government, but it may be perfectly legal," Keating says. ©