Tuesday, May 23, 2017

City Council President Kevin Kelley is on Trial, Whether He Likes it or Not

Posted By on Tue, May 23, 2017 at 7:02 PM

City Council President Kevin Kelley - SAM ALLARD / SCENE
  • Sam Allard / Scene
  • City Council President Kevin Kelley
Monday evening's city council meeting ended rather like the city of Pompeii: leveled by an eruption.

Chants of "Shame on You" and "Vote Him Out" thundered through council chambers at City Hall as members of the Q deal referendum coalition and their allies raged against Council President Kevin Kelley.

Many of those in attendance had personally spent hours collecting signatures for a petition that had been summarily rejected on questionable grounds earlier in the day. Opponents had been rallied to the evening meeting on social media all afternoon.

Throughout the proceedings, the rage was something one could witness metastasizing in real time, fueled by boredom and then by comments from councilmen sympathetic to the opponents' cause. The final outburst featured some of the loudest and most violent chanting this reporter has witnessed in council chambers.

Not a single local news camera was there to record this striking display.  

Moments before the eruption, Councilman and Mayoral candidate Zack Reed had invited Cleveland's law director, Barbara Langhenry, to the microphone.

This was during the final "miscellaneous" portion of the meeting. It followed a parade of congratulatory resolutions and the routine rapid-fire "emergency" legislation typical of the Monday meetings.

Reed asked Langhenry whether or not Kevin Kelley had invoked attorney-client privilege in seeking legal advice about the Q deal referendum. While this sounded bizarre, Langhenry said that yes, yes he had.

That morning, City Council rejected more than 20,000 signatures that had been collected during the preceding 28 days. Members of multiple citizen groups who oppose the Q deal attempted to submit the signatures at City Hall, but a letter signed by Deputy Clerk Allan Dreyer was waiting for them: The petition was being rejected on the grounds that the referendum "unconstitutionally impair[ed] an already executed and binding contract."

(Note: City Council told Scene that Clerk Patricia Britt is away at a Municipal Clerk Conference, and that "in her absence Allan Dryer is the responsible person.")

The "unconstitutional impairment" was a justification that some council members found, at best, flimsy. Among other pressing questions that occurred to them, the most obvious was: What contract had already been executed? After all, the county, which will sell the renovation bonds, is waiting for the referendum issue to be resolved before they move forward. The "contract" couldn't just be the deal itself, could it? At a Monday committee meeting, Kelley said that there were "other city contracts" at play. It's unclear what those are.

City spokesman Dan Williams had no comment on the contract mentioned in Dreyer's memo, referring our questions back to City Council. "That was a decision made for them by the council president," he said. (Williams later called Scene and said he'd made this statement in error. He said his intent was merely to direct our inquiry to City Council.)

Council spokeswoman Joan Mazzolini said that the "contract" was, in fact, merely the Supplemental Agreement contained within the Q deal legislation (pgs. 10-16 here). The Supplemental Agreement extends the original cooperative agreement from 1992 which "proposed that the County provide a loan to Gateway from the proceeds of the Arena Bonds and that the city direct certain non-tax payments to the County as additional security for those Bonds."

In other words, the Supplemental Agreement is "the deal."

If this is the case, though, the rejection of the referendum becomes a laughable tautology. To paraphrase Allan Dreyer's memo: A referendum seeking repeal of the Q deal would unconstitutionally impair the Q deal.

Further, if council now says that the contract in question is the Supplemental Agreement contained within 305-17, it contradicts Kelley's comments at Monday's committee meeting that there were "other city contracts" to which Dreyer's memo referred.  (And if that's the case, Councilmen Jeff Johnson and Zack Reed had every right to be baffled by Kelley's statements to that effect.)

In a conversation with Scene Tuesday, Kevin Kelley said he could not say for certain what the contract was, but it was his understanding that there was a separate document, (i.e. something other than that which is contained within the legislation). He said he could confirm tomorrow.

Per the council spokesperson, however: While the Supplemental agreement is the substance of the Q deal, contained within 305-17, "it is also a contract that has been signed by [the city and the county]." (Italics added). 

Emergent in Scene's correspondence Tuesday was the appearance that council was now trying to protect Kelley, or else to modify Monday's narrative. In response to our questions about the contract, a spokesperson said, "the city law department and our attorney Rachel Scalish have advised the Clerk of Council. As a courtesy, the council president has also been kept in the loop, but the law department is representing the Clerk in this issue."

This beggars belief. Kelley himself admitted all through yesterday's committee meeting that he had been consulting with and seeking advice from the city law department and council attorneys. (Why, indeed, would Kelley seek "attorney-client privilege" from the law department if he were merely being kept in the loop as a courtesy?) It's also absurd to think that deputy clerk Allan Dreyer — while Clerk Patricia Britt is away on a conference — would be coordinating the decision-making on an issue of this magnitude, one that Kelley has largely overseen. It was Kelley, recall, who was said to have personally orchestrated the last-minute provisions that were meant to sweeten the deal before the final council vote.

Kelley said Tuesday that it would be dishonest to suggest that he was not involved — he did indeed seek advice from city attorneys — and that it was not his intention to shirk responsibility. But he clarified that the "client" in question was not himself, but Clerk Pat Britt. The Clerk (that is, Britt, not Dreyer) sought advice, Kelley said, in the likely event that the signatures would be submitted. He restated his belief that attorney-client privilege was valuable "for a whole lot of reasons" and that City Council did not have the benefit of executive sessions, as some other public agencies do, for sensitive matters.

But why, then, Scene asked, wouldn't Kelley have merely deferred to the Clerk when his colleagues were demanding to know how he (that is, Kelley) made the decision to reject the signatures?

"I could have," said Kelley, "but I was in it. I don't know what my exact legal role would be. It certainly would not have been a correct statement for me to have punted this whole thing to the Clerk. Ultimately, it's the Clerk who has a legal role and is the person who keeps and receives records and is the client. I'm not trying to minimize the fact that I did seek advice on this, but the entity is the Clerk."

Dan Williams' call, though, two hours after his initial comment (above) came after City Council had called him. Williams said that he misspoke when he said that Kelley had made the decision on behalf of council and it was now his understanding that the Clerk made the decision.

Back to the "contract."

Scene asked Council how, if the contract in Dreyer's memo was just the deal itself, it could be construed as "executed" when the county has stated publicly (and on advice from county financial adviser Tim Offtermatt) that it intends to wait for a resolution on the referendum issue before it sells the arena bonds. On that question, we were told we'd have to ask county council.

County Councilman Dale Miller told Scene that though he wasn't a lawyer, he recognized that there was some uncertainty in the city charter about referendums on emergency measures.

"I also think," he said, "that it is not impossible that a judge could rule that since no actual action has occurred yet to implement the Q Project, that no irreparable harm would be done by allowing the referendum and that the right of the people to referendum would trump other considerations."

Miller said "all indications" are that the county administration and his council colleagues agree with him on that issue.

"As one who voted for the Q Project," said Miller, who is a former Cleveland City Councilman, "I would have no problem with the referendum taking place. If the Q Project passed, it would validate my decision. If the Q Project failed, I would say that I voted what I honestly felt was best, but willingly accept the decision of the people."

At Monday afternoon's meeting, multiple city councilmen said they'd like to see the written legal opinion that led to Kelley's decision to reject the petition, something which, at the time, Kelley had not been provided. He claimed that he'd consulted with a number of city attorneys on the matter (Kelley is a lawyer himself), but that it was all verbal. Jeff Johnson suggested that Kelley should be "chastised" for his actions. Mike Polensek alluded to "unpleasant ramifications" if Kelley didn't exercise abundant caution moving forward.

Other than Matt Zone, who said he'd also like to see a written legal opinion, no councilperson who voted for the Q deal took exception to Kelley's maneuvering, at least not openly. This created the misleading impression that opposition to the Council President's actions was a direct extension of opposition to the deal itself. This should not be the case. As Dale Miller described, and as Councilman Mike Polensek reiterated at the evening meeting, citizens have a right to initiate a legislative petition if they disagree with the actions of council. Polensek quoted Chapter 7, Section 51, of the City Charter pertaining to filing petitions:

"All papers comprising a petition shall be assembled and filed with the Clerk of the Council as one instrument by no later than 4:00 p.m. on a regular business day of the office of the Clerk," reads the charter. "Within ten (10) days from the filing of a petition the Clerk shall ascertain whether it is signed by the required number of qualified electors. Upon the completion of the Clerk’s examination the Clerk shall endorse upon the petition a certificate of the result thereof." 
"My brothers and sisters, members of the public" said Polensek, "that was effective November 9, 1931."

(Note: While much of the Charter's seventh chapter was indeed effective at the date Polensek cited, Section 51 — the material quoted above — was effective Nov. 8, 2004.)

After Jeff Johnson and Polensek voiced their concerns about Kelley's rejection of the petition, Reed invited Langhenry to the mic. Langhenry rose from her seat next to Mayor Frank Jackson.

Reed stated what he'd mentioned to Scene prior to the meeting: that after the afternoon committee meeting, he had ventured to the law department to clarify the petition rejection. In lieu of, or in addition to, a written opinion, Reed had said that he'd like to be briefed by the city lawyers who provided advice to Kelley. (This was initially a suggestion of councilman Terrell Pruitt.) Kelley had seemed to indicate that this wouldn't be a problem. But when Reed asked for information of the law department, a city lawyer told Reed that Kelley had invoked attorney-client privilege and that Kelley would have to waive that privilege if other city councilpeople wanted to be briefed. It would be difficult to overstate Reed's bamboozlement at this turn of events. Though he already knew the answer, Reed asked Langhenry if this was indeed the case. Had Kelley really invoked privilege?

"That's right," Langhenry said. [Statement obscured by crowd noise, though she seemed to legally endorse attorney-client privilege in this instance.]

Reed then asked Kelley directly if he would waive this privilege "and tell these fine people in the audience [statement obscured by crowd noise] ...  they want to know from you, Mr. President: What is the reason you rejected their petitions?"

Kelley was getting annoyed. The crowd, boiling over with accumulated boredom and anger, began to chant "We want to know!" Kelley then advised Reed that he was not on trial. "This is miscellaneous," he said.

"SHAME!!! SHAME!!! SHAME!!!!" The chants from the crowd rose in volume and violence, and the meeting was thus adjourned. The referendum coalition and their allies screamed at Kelley as the council members and the Mayor's administration gathered their things and processed out.

Kelley said he was not on trial — and he told Scene Tuesday that he'd be surprised if the opposition leadership hadn't anticipated a legal challenge from the city. "This isn't on me," he said — but the impression one can't help receiving was that he was, and that he is. He is perceived, despite assertions to the contrary, as the lone author of this latest obstruction of citizen action.

The rejection of the Q deal signatures has been called by some a "giant middle finger" in the face of the people of Cleveland and in the face of Democracy itself. And whether it was Kelley, or the Clerk, or some other unseen force at City Hall, at least 20,603 citizens hopped up on activism are mad as hell.
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Federal Lawsuit Filed Over Arrests From 2015 Michael Brelo Acquittal Protest

Posted By on Tue, May 23, 2017 at 3:50 PM

A protester stands before riot police in May, 2015, on the night of the Michael Brelo portests. - SAM ALLARD / SCENE
  • Sam Allard / Scene
  • A protester stands before riot police in May, 2015, on the night of the Michael Brelo portests.
On the two-year anniversary of downtown protests against the acquittal of Cleveland police officer Michael Brelo, seven men and women arrested that night filed a lawsuit in federal court. The sequence of events on May 23, 2015, adds up to a violation of constitutional rights, the plaintiffs argue.

In essence, they insist, Cleveland police officers infringed on a lawful and protected protest with no mention of cause nor hint at allegations of unlawfulness. The narrative that we're reminded of in this lawsuit is one of premeditation: At one point, one of the legal observers of the protest was slapped with plastic handcuffs and asked by a police officer “Did you come out here to be arrested today?”

As day turned to night, almost infamously at this point, the police officers' riot gear-clad clampdown became more pronounced.

Many will recall the critical moment during the protests when police had corralled protesters within Johnson Court, between West 6th and West 9th: "After some unlawful arrests had already been made, Defendants herded the protesters and observers to a small alleyway, blocking the exits with armed officers to prevent movement. ... Minutes later, the Defendants began to arrest the protesters and observers, ostensibly for failing to comply with an order to disperse which no one heard and which was made impossible by the officers’ own actions in preventing exit."

The resulting arrests kept dozens locked up for nearly 36 hours, because, as the deputy chief of police put it, "From my perspective, it doesn’t make much sense to cite and release the protesters and let them back out on the streets to protest again.” This notion plays a major role in the plaintiff's allegations of constitutional rights violations: "unlawful seizure and extended detention."

The civil complaint includes many vivid details from the protesters' time on the streets and behind bars (black mold, cockroaches, bed bugs, overcrowding, no showers, brown tap water). Detainees were trucked off to the overflow jail facilities at Aviation High School. The prosecution involved multiple court hearings over misdemeanor charges of "failure to disperse," which were ultimately dropped in the defendants' favor. Still yet, subsequent visits from the FBI haunted the protesters up until the Republican National Convention one year later.

Read the full complaint below.

The nightmarish scenario and prolonged criminal cases has prompted what one would consider a chilling effect; in the immediate aftermath of the Brelo situation and in the ensuing two years, attorneys argue, protesters who were ensnared in the court system are generally less inclined to publicly protest now. This is how things like constitutional rights are worn down: simply by the daily goings-on of the criminal justice system, slowly and nearly out of sight.

Point-blank, the attorneys suggest: "Many law-abiding citizens, including some Plaintiffs, are now understandably reluctant to attend or participate in lawful protests within the City of Cleveland." There has not been a public protest on the scale of the May 2015 events since then — even when a Cuyahoga County grand jury in December 2015 declined to indict officers Timothy Loehmann and Frank Garmback in the shooting death of Tamir Rice.

The protesters seek relief fromthe court and relevant damages, including the spectrum of costs amassed during their jail time.

Workman et al v. City of Cleveland et al by sandyatscene on Scribd

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Mayoral Candidate Brandon Chrostowski Submits Signatures to Board of Elections

Posted By on Tue, May 23, 2017 at 2:44 PM

Chrostowski, in his campaign offices near Shaker Square. - SAM ALLARD / SCENE
  • Sam Allard / Scene
  • Chrostowski, in his campaign offices near Shaker Square.
Cleveland mayoral candidate Brandon Chrostowski dropped off signatures at the Cuyahoga County Board of Elections Monday, becoming the third candidate to officially do so.

Councilman Jeff Johnson and Palestinian-American Brahim Ayad have also submitted signatures.

Chrostowski told Scene that he submitted 5,248 signatures, and that his own team, using Board of Elections computers, estimated that 3,500 were valid before they were submitted. They will be officially validated by BOE personnel next Wednesday, Chrostowski said.

The east side restaurateur has been something of an afterthought in the mayoral race in recent weeks, as stories about incumbent Frank Jackson and his council challengers Jeff Johnson and Zack Reed have dominated the headlines. (Jackson, Johnson and Reed are still certainly the three most powerful candidates, though Jackson, to date, has not yet pulled petitions.)

Chrostowski, like Johnson and Reed, opposed the Quicken Loans Arena renovation deal.  In a statement last month, he said that the deal was evidence of Cleveland's entrenched political leadership and their subservience to corporate influence. And he responded to those who criticized his lack of experience.

"After watching the Q deal unfold and the charade that council president Kevin Kelley pulled on the steps of city hall, I can only conclude that Mr. Kelley and his ilk hold the citizens of Cleveland’s most deprived neighborhoods in very low regard. What a shame," Chrostowski wrote.

"This travesty showed me how weak our leadership really is and how a mayor can sit back and take cover without anyone calling him out. The hard truth is that this is an evacuation of social integrity across the board. The deal put before Cleveland City Council was shoddy and betrayed our leadership’s lack of empathy or even interest in all of us regular citizens."

Chrostowski has pitched himself as an outsider uncorrupted by "business as usual" at City Hall. He sees himself as a fresh voice with energy and passion. He wants to bring the same principles of his EDWINS's Leadership and Restaurant Institute to other arenas of city policy.

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A Drug Deal Turned Deadly is Pepper Pike's First Homicide in More Than 20 Years

Posted By on Tue, May 23, 2017 at 2:04 PM

Pepper Pike, just an average idyllic Ohio town. - PHOTO VIA ALLYOUCANCLE/INSTAGRAM
  • Photo via allyoucancle/Instagram
  • Pepper Pike, just an average idyllic Ohio town.
A man was shot and killed in Pepper Pike early Monday morning after a drug deal involving marijuana turned violent, according to police.

The shooting occurred on Fairmount Boulevard, just around the corner from the site of Pepper Pike's last murder, when Sister Joanne Marie Mascha was killed outside Ursuline College in March 1995.

Since then, the quiet town of 6,000 residents had seen almost no violent crime until Monday at 1 a.m., when 24-year-old Solon resident Isaiah Lampkins was shot.

Residents of Pepper Pike, which boasted crime rates less than a quarter of the national average as of 2015, are understandably rattled.

Jason Clayton, who lives close to where the shooting took place, told Cleveland 19 News that he had heard a "loud bang" outside, and that "I was joking with my wife that maybe that was a gunshot."

Three Northeast Ohio men have been arrested and charged in relation to the incident: Matthew Stecher, with voluntary manslaughter and trafficking in drugs, and Kevin Malone and Da'Jon Carouthers, with involuntary manslaughter and armed robbery.

Pepper Pike plans to hold a City Council meeting tonight at 7:30 p.m., and for the first time in more than 20 years, they'll have more than traffic and tree removals to discuss.

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Proposed Ohio Bill Would Legalize Fireworks for Private Use

Posted By on Tue, May 23, 2017 at 1:12 PM

  • Wiki
For the fifth time since 1996 Ohio legislators are attempting to give Ohioans the legal right to set off fireworks whenever they damn well please. The previous four efforts, most recently at the tail end of the 2014 legislative session, had their wicks snapped before anything became official.

Representatives Bill Seitz, a Republican out of Cincinnati, and Martin Sweeney, a Cleveland Democrat, co-sponsored House Bill 226. Should it pass, and we're a ways off from that, Ohio would have one of the more lenient fireworks laws on the books in the country. Some of the fine print here, via the Dayton Daily News, on the bill's provisions, which would take effect July 1, 2020:

You, as a explosion-lovin' Buckeye, could buy and use 1.4G fireworks on your property (currently, while you can buy 1.4G fireworks in state, you must, take them out of state within 48 hours, and all you can legally set off are novelties like sparklers and snakes). Sellers, meanwhile, would need to provide safety information so that you set off your favorite roman candle without losing a finger. Additionally it'd impose a 4-percent fee to funnel money toward firefighter training and institute a new committee to study and recommend additional restrictions and regulations as they are needed. Local municipalities would also be allowed to enact their own bans or limitations.

Opposition is bound to be vocal and strong. Two years ago everyone from fire marshals to the blindness organizations to the Ohio Academy of Family Physicians, not to mention those who have been directly affected by firework injuries and tragedies, lined up to remind everyone of the serious health and safety issues the bill would have created by literally making it legal to buy explosives. As it stands, around 11,000 people nationally are injured every year in fireworks-related incidents including eight fatalities in 2013 and 11 in 2014. Those and other concerns were highlighted in a 2015 Cleveland.com editorial that called for any future version of the legislation to include a pre-set self-repeal date and a ban on aerial fireworks.

Here's just some of what Ohio politicians are likely to hear again as they consider the new bill, via Brent Larkin's reporting in 2014:

Patricia Holsinger of the Dayton area described to senators “the worst night of her life” this past summer, when one of those rockets came down on the house of her elderly parents, killing them both in the resulting fire.

A falling rocket also killed four-year-old Michael Shannon back in 1991, as Michael’s mother and sister explained to senators. It was a waste of their time. Senators were determined to give Phantom Fireworks what it wanted.

So determined that they pretended to believe the laughable lie from the bill’s backers that passage would make fireworks safer for children.

Dr. Gary Smith, director of the center for injury research and policy at Nationwide Children’s Hospital in Columbus, seemed astonished that anyone would dare to make such a specious claim.

“It’s magical thinking, it's nonsense,” said Smith, who is also president of the Child Injury Prevention Alliance and a physician considered by many the nation’s leading expert on harm caused to children by fireworks. “When you increase access and exposure to a hazard, the number of victims never, ever goes down.”
The executive director of Prevent Blindness Ohio, Sherry Williams, is already on record this time around, telling the DDN: “We know there is no safe way to use an unsafe product. Setting off explosives is a dangerous activity that serves no purpose. Fifty percent of the injuries (from fireworks) are to people who are minding their own business.”
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Latest Trump Budget Proposal Would Still Eliminate Great Lakes Restoration Funds

Posted By on Tue, May 23, 2017 at 12:06 PM

  • Flickr CC
Two and a half months after his first round of budget proposals, President Trump returns with another package that once again suggests eliminating the Great Lakes Restoration Initiative. (In the interim, Congress approved a $1.1-trillion "omnibus spending bill" to keep the federal government functioning through September. The GLRI funds were kept intact.)

But despite widespread opposition to the Great Lakes cuts, Trump is sticking to his guns. Amid outcry, he did ultimately drop a plan to divert $50 million of the GLRI's $300-million budget toward funding the Mexican border wall.

But Trump and EPA Director Scott Pruitt nonetheless have kept the Great Lakes funding in their cross-hairs.

The GLRI funds things like water quality oversight, agricultural runoff mitigation, wildlife habitat preservation. The sum total of the GLRI projects should remind American voters and taxpayers that we're still participants in an ecosystem, and the process that we've built suggests the federal government has a role in funding the management of the natural world.

Ohio Sens. Sherrod Brown and Rob Portman have both committed to opposing cuts to Great Lakes federal funding.

Along with the total elimination of the Great Lakes restoration work, this latest budget includes decreases on many EPA line items relevant to Northeast Ohio. The Superfund pollution control and remediation programs could be cut by 25 percent. Those sorts of programs have cleaned up (and continue to clean up) countless post-industrial wastelands, clearing the way for redevelopment. The ongoing work at the old Painesville Diamond Shamrock site is a close-to-home example of where federal Superfund dollars end up.

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Terminal Tower Welcomes Fifth Falcon Baby (and a Dead Bat)

Posted By on Tue, May 23, 2017 at 11:41 AM

Terminal Tower has a new resident as of yesterday, after a fifth peregrine falcon finally hatched to majestic parents Lady Millar and Stacker. Bird photographers Chad and Chris Saladin, who've observed the falcons from incubation to hatching, caught the whole family feasting on a bat yesterday.
  • Photo via Facebook
Now, with all five birdies having cracked their shells (the photo above shows the new mama patiently waiting for the final egg to open), the new parents have their wings full. While the newest baby bird is smaller than his or her siblings, all the chicks appear healthy. Adorable video below.
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