Greg wrote yesterday about the decision of the Columbus City and Franklin County Prosecutors to not pursue criminal charges against Stan Heffner.

Heffner, recall, was the subject of a scathing report from the Ohio Inspector General.  The Inspector General found that Heffner committed “wrongful acts or omissions” by (1) testifying to the legislature in support of a bill that could and ultimately did benefit a corporation with which he had entered into an agreement of employment; and (2) using his state issued cell phone and email account, as well as state employees, to pursue his private business interests.

This has generated some discussion, so we though a more detailed legal discussion was in order.

We discussed possible criminal charges after the IG report was released.  At the time, we identified two possible criminal charges:  Ethics Law Violations and Theft in Office.  Let’s look at each.

Ethics.  The possible statute is Ohio Revised Code 2921.42(A)(1).  This statute prohibits a public official from employing “the authority or influence of the public official’s office to secure authorization of any public contract in which the public official, a member of the public official’s family, or any of the public official’s business associates has an interest.”  At the time, we noted that this would be a difficult prosecution and could only be undertaken by a prosecutor “willing to be aggressive in ethics prosecutions.”  From a legal standpoint, there is really no caselaw that addresses this type of situation.  And the factual situation is complicated by the fact that Heffner, while acting improperly, didn’t testify in favor of a contract with ETS, nor did he directly approve the contract.

Ethics charges, which generally are misdemeanors, fall within the jurisdiction of the City of Columbus Prosecutor and the Franklin County Prosecutor.  The City Prosecutor is a Democrat, while the County Prosecutor is a Republican.  The statute we cited, however, is a felony within the exclusive jurisdiction of the Republican County prosecutor.

We consulted a former prosecutor with experience in ethics issues who now works as a defense attorney.  The attorney said, “While I might have made a different decision, I can’t really say that the Prosecutor’s decision to not pursue these charges was unreasonable.”

Theft in Office.  The applicable statute here is Revised Code § 2921.41.  The statute provides that “No public official or party official shall commit any theft offense. . . . The property or service involved is owned by this state . . .”  Theft offenses include the use of computers and equipment for purposes beyond authorization, as well as “theft of time” by state employees who pursued private interests while getting paid by the state.

In this previous post on the Delaware County Sheriff, we gave some examples of recent theft in office prosecutions in Ohio, including: a village administrator who kept the money the village received from the sale of two old garage doors from the fire department for scrap and used the village credit card to buy gas for his personal vehicle; and a village Mayor who falsified time sheets and used a car battery and a water pump for his pool.

The same former prosecutor, when asked about these charges, said, “This is a pretty cut and dried case and falls directly within the statute.  I never liked the idea of the state criminalizing what should be HR matters, but all state employees know that criminal charges for doing private business on state time remain a distinct possibility.”

So what do we make of the decision by Republican Prosecutor Ron O’Brien to not file theft in office charges.

Initially, we wonder if O’Brien has a conflict of interest.  Even if not a direct conflict, he is a Republican asked to review possible charges against a high ranking member of a Republican Governor’s administration.  The decision on whether to indict – or not indict – a high ranking political figure would have more credibility if done by a non-political special prosecutor.

The real question is: how have similar cases been treated.

Let’s look at two recent cases.

In Brown County, the prosecutor indicted some ODNR employees for hunting while on state time.  The allegations in this case, like the allegations against Heffner, came to light after an Inspector General investigation.  The Brown County Prosecuting Attorney explained that the charges were justified because “these two men took public money and betrayed the public trust because they chose to hunt while being paid by taxpayers.”

It is hard to see how the Heffner case is different from the ODNR case.  In both instances, state employees chose to pursue private interests while being paid by the taxpayers.  If anything, Heffner’s case is worse because he used state resources to pursue his new career.

The second case is one from the Franklin County prosecutor.  Earlier this year, a school principal was indicted on a felony charge of theft on office (as well as two other felonies) and other charges when she misrepresented her salary on forms to make her children eligible for subsidized school lunches.  After admitting guilt, she was placed in a diversion program that could ultimately lead to the dismissal of the charges.

The important fact about the Jones case is that Jones did not receive a huge benefit.  News reports estimated that she received a benefit of only about $1,300.  While we don’t have an exact figure for the benefit received by Heffner, this isn’t important.  The important point is that O’Brien’s office has been willing to bring felony theft in office charges even when the amount of benefit to the employee is relatively small.

Conclusion:  it is hard to defend the decision of O’Brien here, as it appears to be inconsistent with the decisions made in other recent cases.    We will leave it to the comments section to speculate on motives for this disparate treatment.