As Ohio’s legislature prepares to quietly pass legislation that legally allows the Highway Patrol to operate at the newly privatized prison in Conneaut, Ohio, the bigger story that has generally gone unreported (except by Plunderbund, of course) is the multitude of ways in which the Ohio Department of Public Safety’s legal department has attempted to circumvent existing law.

According to records obtained by Plunderbund, James Canepa, Chief Legal Counsel at Ohio Department of Public Safety, ignored two opinions issued by the Ohio Legislative Service Commission (OLSC) when he pursued an agreement with the City of Conneaut to have the Highway Patrol provide law enforcement and investigative services to Ohio’s newly-privatized prison.

As we’ve been discussing, John Kasich’s decision to sell the Lake Erie Correctional Facility in Conneaut to private prison operator Corrections Corporation of American (CCA) opened up a series of problems for the city and the state, not the least of which was identifying who would investigate crimes at the private facility. The Highway Patrol currently performs this function at state prisons but is forbidden from operating on private property.

In October of last year, realizing LECF would be sold to CCA, state and local officials began scrambling to figure out how to handle this dilemma.  We have obtained a October 26, 2011 Memorandum from the City of Conneaut’s Law Director Office.  This Memorandum states that in other cities with private correctional facilities owned by CCA, “the local police generally has the responsibility to conduct criminal investigations inside the facilities . . .”  .

This may seem like an academic point, but it has real world implications for Troopers.  As we noted a little over a month ago, Troopers could face personal liability because they were acting outside of their jurisdiction.  (Of course, Kasich, who views law enforcement officers as idiots, and who tried to strip Troopers of their collective bargaining rights, probably doesn’t care.)

It turns out that others agreed with us long ago.  On October 17, 2011, an opinion issued from OLSC by Attorney David M. Gold identifies the lack of clarity in the new legislation, but clearly points out that existing statutory language “restricts the Highway Patrol’s authority to facilities ‘owned and leased by the state.’” And once ownership of the prison was transferred to CCA, the prison would no longer fall under this authority.

On December 1st, 2011 Bethany Boyd, also an Attorney with OSLC, issued an opinion that cleared up any questions about the Patrol’s authority. According to the second opinion, “the facility is private property and not state property or a state institution; thus, the Patrol has no authority to enforce the criminal laws or to undertake major criminal investigations there.” The opinion also states that “the Patrol has no statutory authority to enter into a mutual aid agreement with local law enforcement agencies in regard to the Lake Erie Correctional Facility.”

Let me restate that in case it wasn’t clear: two different attorneys from OLSC both provided the same opinion regarding the Patrol’s authority to operate on private property i.e. they HAVE NO authority. The second attorney also stated that, without any question, the Patrol can NOT enter into an agreement with local law enforcement agencies to provide these services.

And yet records show that 9 days later, on Friday, December 10th, head lawyer for the Department of Public Safety James Canepa asked Conneaut Law Director David Schroeder to write a letter requesting that the city and local police department enter into an agreement with the Highway Patrol to provide law enforcement services at the prison.

On Monday December 12th, the city’s law director executed the letter and sent copies to Canepa. In an email exchange Canepa asked Schroeder to insert a new paragraph at the end of the letter saying that “the City of Conneaut authorizes the Ohio State Highway Patrol to conduct investigative/law enforcement services” and that the “Highway Patrol’s authority in this regard shall be the same as that of the Conneaut Police Department.” The letter was updated per Canepa’s request and sent to Colonel John Born of the Highway Patrol and Tom Charles, Director of the Ohio Department of Public Safety.

A draft Memorandum of Understanding between locals and the Patrol was also drawn up in an attempt to help deal with associated insurance issues. According to Law Director Schroeder, the MOU was never executed or signed and the “matter was resolved in another manner.”

Still, the fact that Canepa asked for any of this in the first place, despite having two distinct legal opinions from two different state lawyers saying the Patrol could not operate at the prison is completely bizarre behavior for the chief legal counsel for Public Safety. It’s his JOB to know what the Highway Patrol can and can’t do. And he should absolutely know that the patrol does NOT have the same legal authority as the city police department.

And if for some reason he had any doubts, the two opinions from OLSC should have given him all the proof he needs that he CAN’T enter into an agreement with the city of Conneaut and he CAN’T let the patrol operate at the private prison. And yet the patrol continues to operate at the prison today.

I have yet to meet a lawyer who has read existing law and thinks the Patrol has any authority at this prison or any other private property.   And yet Canepa continued to try to find ways around the law to pursue Kasich’s agenda, going all the way to the AG’s office, a topic we’ll cover in our next post.

This isn’t the first time Canepa has tried to use his position and legal maneuvering to circumvent the rules. As we discussed a fews weeks back,Canepa’s obviously incorrect legal opinion regarding a grant to the Ohio Association of Chiefs of Police directly resulted in the state paying back nearly $3 million is misappropriated funds.

But the potential dangers associated with this decision could end up being even worse. Instead of just blowing misappropriated federal dollars on big salaries and trips to Turkey, the decision to allow Troopers to operate on private property, outside of their jurisdiction, put the troopers at risk of liability for their actions while performing their assigned duties at the prison.

The reasoning behind Canepa’s actions seems pretty clear: John Kasich wanted to sell this prison, and he tasked Canepa and his other appointees at Public Safety to figure out the details. As the the Chief Legal Counsel for Public Safety, Canepa’s primary job is to provide sound legal advice to the department’s leadership, and in this capacity he has absolutely failed.

Moreover his decision to ignore the law, and the legal opinions of other state attorneys, puts rank-and-file Highway Patrol troopers at personal risk. Canepa appears to have put politics and pleasing Kasich ahead of following the law and protecting the hard working Troopers that rely on him. And this is absolutely unacceptable.