Friday, April 1, 2011

Mason, FitzGerald ask DeWine to resolve law department dispute

Bill Mason says he and Ed FitzGerald have asked Ohio Attorney General Mike DeWine to resolve their dispute about whether the new law department or the prosecutor will represent the county in court.

“Ed FitzGerald and I have talked,” Mason told me today. “We’ve agreed on some of the stuff that we could probably agree on. But we have completely differing views on some of the big picture stuff. So we both agreed that the best thing to do is, let’s send it to the AG, and whatever he comes back and says, we’re going to bind our offices to that.”

For three months, FitzGerald and Mason have been arguing about who has what legal powers in the new county government. The debate is especially interesting because many people saw the two men as political allies. FitzGerald used to work for Mason, and Mason helped him get the Democratic Party’s endorsement in the primary last summer. FitzGerald has also insisted that a proposed county law against nepotism in hiring apply to Mason, who has hired several relatives over the years.

Their legal dispute is about whether the law department should replace the prosecutor’s civil division. In Ohio, county prosecutors don’t just prosecute – they also have civil divisions that handle the county’s legal work. But Cuyahoga County’s new charter says the law director “shall be the legal advisor to and representative of the County Executive and County Council.” FitzGerald thinks that does away with the prosecutor’s civil division. Mason disagrees.

“I was one of the people who wrote the charter, so I know at least what I was I intending,” Mason says. “I wanted to make sure the elected executive had somebody to talk to about things, a lawyer to bounce [things off] and give them research. So we gave them a lawyer to represent the executive and the council.”

Early drafts of the charter explicitly moved the prosecutor’s civil division into the law department, but that language was dropped when Mason disagreed, lawyer Gene Kramer, the charter’s main author, told the Plain Dealer.

The charter says the prosecutor’s duties, “including provision for the employment of outside counsel, shall continue to be determined in the manner provided by law.” Mason says this state law still gives him the job of representing all county officials in court. He says he’s OK with the law director drafting legislation, giving legal opinions to county departments and negotiating and writing contracts. (His civil division has handled the latter two tasks in the past.)

FitzGerald wants his new law director, Majeed Makhlouf, to take over all non-criminal legal matters. “We have the prosecutor being involved in things that have nothing to do with criminal law,” he told the Plain Dealer this week. “We don’t think that makes sense.”

Even DeWine’s decision may not end the dispute for long. Starting in September 2012, a charter review committee will look at how the new government is working and suggest amendments. If DeWine sides with Mason or splits the difference, FitzGerald and others may push for a charter amendment to explicitly hand over all legal affairs to the law director. But that amendment wouldn’t go to voters in until 2013, after Mason leaves office. And the next prosecutor could still challenge it in court.

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