The civil case filed against Hillsboro Mayor Drew Hastings by five citizens alleging malfeasance was dismissed as moot Friday by Highland County Probate and Juvenile Judge Kevin Greer.
In dismissing the case, Greer ruled that because the alleged misfeasance or malfeasance claimed by the plaintiffs occurred during Hastings’ first term, “this Court can no longer grant meaningful relief to relators,” based on an Ohio Supreme Court decision in a similar case involving former Cleveland Mayor Carl Stokes. Hastings began his second term Jan. 1.
Fred Beery, the city law director who by law was charged with representing the citizens who filed the case – Craig Jackson, Ariana Jackson, Betty Bishop, Kirby Ellison and Lisa Leeth – had argued that because Hastings had received a refund of a $500 vacant property fee he had paid, and had not paid the fee again, the unpaid fee represented an ongoing violation and the Stokes limitations should not apply.
But Greer also took issue with that argument, saying he “strongly disagrees,” and writing that city code requires notification of an alleged violation of the ordinance.
“…the Court will take the position Mayor Hastings has not been properly notified by the Fire Chief as required or provided the opportunity under (city ordinance) 165.09 to remedy the alleged violation or go through the appeals process,” wrote Greer. “Therefore it can be argued no violation of Chapter 165 has occurred unless and until the procedure under 165.09 has been followed and completed.”
Greer added, “Simply put by the City failing to follow the procedure within Section 165.09 adopted by City Council on February 10, 2014, it cannot now be argued an alleged violation of Chapter 165 has occurred or continued into 2016.”
The complaint centered on an allegation that Hastings had improperly received a refund of the $500 vacant property fee by “preparing and submitting a letter to the city auditor utilizing the signature stamp of the safety and service director without lawful authority and without being entitled to the refund.”
Greer concluded his decision by writing, “Relators may have knowledge of other allegations of misconduct by Mayor Hastings not pled within their complaint. In that event either their complaint was inartfully drafted or those allegations will be presented in another forum, civil or criminal.”
Beery said Friday he was not surprised at the decision. “I can’t say that I disagree. It’s just a limitation that’s been on the books since Stokes.”
Beery said that he did not know if the plaintiffs would appeal. He said that while the law required him to handle the initial case, he is not required to handle an appeal.
“They’ll have to hire outside counsel,” he said.
Hastings’ attorney, James Boulger, could not be reached Friday.
While the civil case was dismissed, a criminal investigation is ongoing.
In a new twist to that case, a misdemeanor charge of attempting to obstruct official business was filed Tuesday by the Hillsboro Police Department in Hillsboro Municipal Court against Hastings. The Times-Gazette saw the filing when it appeared for a brief time on the court’s website, but it was soon removed. Officials asked that the matter not be immediately reported, a request to which The Times-Gazette agreed at the time.
The charge was filed under section 2921.31 of Ohio Revised Code, which states, “No person, without privilege to do so and with purpose to prevent, obstruct, or delay the performance by a public official of any authorized act within the public official’s official capacity, shall do any act that hampers or impedes a public official in the performance of the public official’s lawful duties.”
A preliminary hearing on the charge was originally scheduled for Thursday, but officials said later that the case was being dismissed and would likely be folded into the ongoing criminal investigation being conducted by the Highland County Sheriff’s Office. The basis for the charge is not known.
Beery said that Judge David McKenna has placed a 90-day seal on the case, so he is not permitted to discuss it.
Over the last couple of days, there were additional reports of more search warrants being served in connection with the criminal investigation, including another one Friday at the city administration building. Such searches are likely to be repeated until investigators believe they have gathered sufficient evidence to present the case to the Ohio Attorney General’s office.
Sheriff Donnie Barrera said Friday that the Hastings investigation would likely take “a couple of more weeks” to be completed and turned over to the attorney general.
The Times-Gazette reported online Wednesday and in Thursday’s print edition that Beery said the citizens who filed the civil case against Hastings were encouraged to do so by the “law enforcement community,” although he would not be more specific.
The civil case, if it had proceeded, would have been conducted quickly from beginning to end and would have resulted in the mayor removed from office if he was found guilty.
Beery earlier said the civil case was filed because city workers feared retaliation from the mayor for pursuing or cooperating in the criminal probe. Hastings said, “I cannot think of a single example where I have ever retaliated against anyone. That would put me on the same level as the people who are against me.”
Longtime legal observers have said that providing evidence from the initial stages of a criminal investigation to private citizens for the purpose of filing a civil case is unusual. Sheriff Donnie Barrera said his office did not provide the information to the citizens who filed the case, and did not know a civil case was being pursued until after it was filed.
Hillsboro Police Chief Todd Whited said in an email that he would not discuss the case since it is being handled by the sheriff’s office, as well as to avoid jeopardizing the investigation or any court proceedings.
The state attorney general was asked by Highland County Prosecutor Anneka Collins to handle the prosecution of any charges that arise from the investigation because of its experience in cases involving charges against public officials, and because she may have a conflict due to an employee of the mayor’s office who is a relative by marriage.
An affidavit filed with a search warrant on the city administration building on Dec. 16 stated that investigators are examining the question of how the document authorizing the $500 rebate to Hastings was processed with the stamped signature of Todd Wilkin, the safety and service director, despite the fact that Wilkin told investigators he did not sign the document or authorize his stamp to be used.
Officials were also looking into allegations that Hastings disposed of items from his personal properties in city dumpsters. The affidavit stated that investigators believed that a search warrant would turn up evidence of forgery and theft in office. Additional allegations are also being investigated, according to numerous sources.
Reach Gary Abernathy at 937-393-3456 or on Twitter @abernathygary.
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