‘How does a mayor get removed?’

By Gary Abernathy - [email protected]

By the time the case reached it, the Highland County Grand Jury was right to hand down indictments against Drew Hastings. Let’s stipulate that right off the bat.

The grand jury hears only the prosecutor’s side of the story. The defense is not present and does not argue its side. The level of evidence needed to return an indictment is relatively low.

Grand juries do not always return indictments, but they do most of the time because prosecutors tend not to present cases unless there is at least enough evidence to indict. Even considering only the evidence that has been made public, there is enough evidence in this case to indict. If I was on the grand jury just listening to the special prosecutor’s case, I would have voted to indict, too.

But having enough evidence to indict is a long, long way from having enough evidence to convict, once the defense gets its chance. While it was big news, the indictments were the least surprising development in this case so far. The question was never if indictments would come, it was when they would come.

The problem with this case is not that the agencies in whose lap it landed investigated it, or that indictments were returned. Once this case was handed off from the Hillsboro Police Department to the county sheriff, and then the state auditor’s office was brought in, the sheriff and state auditor had no choice but to carry out an investigation.

Granted, some of the methods used were, to me, ridiculous for a case like this (late night raids to photograph clothing, appliances, toys, etc.) but that’s been well documented. The big problem – the big problem – with this case is not how it was investigated, but how and why it started.

First, let me refer you to a recently-published column in one of our sister papers, the Lima News, written by Mark Weaver. Mark is a friend, and a few other people around here know him, too. He’s a law professor, a former deputy Ohio attorney general, and has served as a special prosecutor in various counties numerous times. He’s one of the sharpest people in government or politics.

Mark’s column is a defense of the grand jury system. But he also makes a more salient overall point – “Justice is a process, not a result.”

Or, as a local expert in jurisprudence recently said to me as he elaborated on the subject, “The justice system is designed not to reach a result demanded by a segment of the public who will be satisfied only with that result, but to reach a result as a result of a fair process.”

The fair process matters most, not a specific result that some may want.

With that in mind, let’s return to the genesis of the case at hand. Back on Dec. 16, just before 2 p.m., five Hillsboro residents – all of them on record as opposing Drew, his actions as mayor or his social media posts, as is their right – signed a sworn complaint against Drew in probate court, accusing him of malfeasance in regard to a $500 rebate he had received from a vacant property fee he had paid. This was a civil action, a citizen action, and there’s a specific Ohio law governing it (ORC 733.72-77).

Attached as evidence to this action were copies of the $500 check Drew had written to the city in November 2014, and the check the city had issued back to him for the same amount in July 2015, as well as the brief letter authorizing the refund, with safety and service director Todd Wilkin’s stamped signature. Todd has told investigators he had not signed or authorized the refund, and I do not doubt him.

How did those who brought the action come into possession of the evidence they presented? The answer to that question is speculative. But we know that rather than just seeking a fair process, the civil action was intended to achieve a certain result – removing Drew Hastings from office. The part of state code that guides the civil action contains two important provisions – that the case be adjudicated from start to finish in about three weeks, and the penalty for a guilty verdict is immediate removal from office.

What was the motivation? The answer is crystal clear. Fred Beery, the city law director, was required by state law to represent the citizens in their action against Drew. Fred explained it at the time in a story we did, as follows.

“I got asked, ‘How does a mayor get removed?’” He declined to identify who asked him that question, but he said he explained there are two ways, one through a petition process, and the other through the kind of civil action that was ultimately filed.

As to how the citizens he is representing in the civil complaint became aware of the issue alleged in the suit, Beery would not be specific, but acknowledged that it “came out of the law enforcement community.” He added, “I think the fear was there would be retaliation.”

It came out of “the law enforcement community.” The goal was to remove Drew from office as quickly as possible. Two hours later, the “separate” criminal investigation was launched with search warrants at the city building, based on the same evidence that had been presented in the civil case.

The civil action, of course, was dismissed after Judge Kevin Greer ruled, based on Ohio Supreme Court precedent, that it could not be acted upon outside of the term in which the alleged offense happened. So not only did the plan to kick Drew out of office in about three weeks fail, but it inadvertently handed Drew and his defense attorney a key issue to be raised at a criminal trial.

“How does a mayor get removed?”

You may be convinced that Drew is guilty as charged. That is your privilege, if you’re happy to dispense with the presumption of innocence until proven guilty. But justice is supposed to be based on a fair process, not on achieving a specific result.

This case was clearly launched in probate court in December as a civil action to achieve the specific result of negating the outcome of the November election and removing Drew Hastings from office.

Sometimes, investigations start because evidence comes to light that raises a concern and leads to more scrutiny. Other times, unfortunately, an end result is desired, and then evidence is sought – and sometimes found – to achieve that result. It is not far-fetched to believe that this case is based on the latter.

“How does a mayor get removed?”

If Drew Hastings is convicted of a felony he will be removed from office. Or, to remove Drew Hastings from office, you need to convict him of a felony. The distinction between those two statements is the difference between using the judicial system to ensure a fair process, or abusing the judicial system to achieve an end result.

Reach Gary Abernathy at 937-393-3456 or on Twitter @abernathygary.


By Gary Abernathy

[email protected]