The attorney for Hillsboro Mayor Drew Hastings filed a brief this week that offers the first glimpse of the arguments the defense will use to counter the state’s allegations, and noted that the criminal charge questioning the mayor’s residence is a first in Ohio history.
James Boulger, the Chillicothe attorney who represents Hastings, wrote, “For the first time in the history of Ohio jurisprudence, the state is asking a jury to substitute its judgment for that of a Board of Elections on the question of voting residence.” Boulger cited three previous Ohio Supreme Court cases that he said addressed the issue.
Hastings was indicted July 12 by a Highland County grand jury after a seven-month investigation on charges of election falsification, theft, theft in office and tampering with records. All the charges are felonies.
State auditor Dave Yost, in whose office the special prosecutor assigned to the Hastings case works, said when the indictments were handed down that the charges against Hastings “involve allegedly listing a false address on his Declaration of Candidacy form; for claiming a city refund of $500 for a vacant building he owned and for altering documents related to the refund, and; for instructing a contractor to use city dumpsters to dispose of construction debris.”
In the prosecution’s brief filed last week, special prosecutor Robert F. Smith said that water usage records and a comparison of furnishings between Hastings’ Hillsboro residence and a farm he owns outside of town will prove that Hastings resides at the farmhouse.
But Boulger argued this week that Ohio law specifies that a challenge questioning residency for voting or candidacy purposes must be filed by a protest with the board of elections.
Since no such protest was ever filed and the election board accepted Hastings’ declaration of candidacy, prosecuting Hastings on the residency issue “is, in essence, a collateral challenge to the validity of the Declaration of Candidacy reviewed and approved by the Highland County Board of Elections, as well as Mr. Hastings’ voter registration for the last four years.”
Boulger also noted that Hastings’ residency was investigated in 2013 by the state attorney general after a complaint was filed by a former Hillsboro police officer, with a finding that “information so provided was not sufficient to bring an action to remove the mayor from office.”
Boulger wrote that the charges involving the alleged use of a city dumpster for personal debris are wrapped into the second and third counts of the indictment against Hastings, and that the two counts improperly combine Hastings’ alleged private acts and his role as mayor.
“Such activity bore no relationship to his employment or capacity as Mayor,” wrote Boulger. “The dumpster in question was located in an unsigned yard, the entrance of which was open during the work week. The dumpster itself contained no plaque or signage indicating a restriction on use.”
Boulger wrote that the evidence appears “to invite mere speculation on the part of a jury charged with the task of attempting to parse city related dumpster usage from that made by private individuals, a necessary step in the determination of a value to be assigned to an alleged theft of services.”
In regard to the $500 refund Hastings received, Boulger argued that the city’s lack of longterm enforcement of the vacant property ordinance calls the allegation into question, along with the voluntary dismissal of a previous challenge to the ordinance, an apparent reference to a case involving Parker Hotel owner Jack Hope.
“The city of Hillsboro abandoned all efforts to enforce the ordinance in question at some point in time in 2015,” argued Boulger. “An attempt at enforcing the ordinance by criminal prosecution of another owner of commercial property was terminated by voluntary dismissal in the face of a constitutional challenge to the validity of the ordinance on the part of that defendant.”
Boulger wrote that the city collected a total of six $500 deposits “during the brief period of enforcement,” and that the ordinance states the deposits were to be used for enforcement of the vacant building law. With the ordinance no longer being enforced, Boulger suggested that all the deposits should have been refunded.
“Despite the fact that the ordinance has not been enforced and not a single building inspected for purposes of determining ongoing vacant building status subsequent to initial deposit, the only deposit refunded was to Mr. Hastings’ partnership,” wrote Boulger.
Boulger argued that if the city intended to enforce the ordinance, it would have required $1,000 deposits from each of the six original depositors “for the second calendar year following the initial $500 deposit.”
“The city has abandoned enforcement of the ordinance and sits on the monies deposited to fund enforcement,” wrote Boulger.
Boulger also wrote that the prosecution has indicated that Debbie Sansone, the mayor’s administrative assistant, will assert her privilege against self-incrimination and will not testify. If so, Boulger argued that introduction of her “out-of-court statements concerning her involvement in creating the memo in question and her understanding of the Safety Service Director’s position with respect to Mr. Hastings’ entitlement to a refund” would be a violation of the United States Supreme Court in “Bruton v. United States.”
Boulger also wrote that the Hastings investigation was launched by the Highland County Sheriff’s Office, with Det. Randy Sanders serving as lead investigator in the case prior to the involvement of the state auditor’s office.
Boulger wrote that the investigation led by Sanders “proceeded in tandem with an unsuccessful civil action in the Probate court seeking the mayor’s removal from office: an action spearheaded by Detective Sanders’ mother, former Mayor, Betty Bishop.”
After the Hastings investigation began, Highland County Sheriff Donnie Barrera soon replaced Sanders with Sgt. Chris Bowen as the lead investigator, expressing confidence in Sanders but saying he wanted to avoid the appearance of a conflict.
In other filings this week in the Hastings case:
• Judge Rocky Coss granted a motion by a second special prosecutor he had appointed, Julie Korte of the Ohio Ethics Commission, to be withdrawn from the case after Korte wrote that there was insufficient evidence of ethics violations. Coss recused himself from presiding over the Hastings case, which will be heard by retired Summit County Judge Patricia Ann Cosgrove.
• The prosecution and defense both issued a subpoena for Annette Black, deputy city auditor, to be called as a witness in the case, in addition to nearly 30 other witnesses who were earlier subpoenaed for the trial.
• A defense subpoena instructed witnesses to show up on Nov. 8, a day after the trial’s start date, indicating that the defense believes jury selection could stretch well into a second day. More than 100 county residents have been summoned for jury duty, about twice the usual size of a jury pool here.
Reach Gary Abernathy at 937-393-3456 or on Twitter @abernathygary.