The Warren County Prosecuting Attorney is looking into whether a Franklin City Schools Superintendent violated the law when he sent a letter home earlier this week urging parents to join him “in an active campaign to ensure Gov. (John) Kasich and any legislator who supports him are not re-elected.”

Joseph had the details of the story yesterday.

Now we learn that Warren County Prosecutor David Fornshell was investigating the letter written by Arnold Elam.

Fornshell, according to the Dayton Daily News, is apparently looking into whether Elam violated a newly enacted law against using public resources for political purposes.

We’ll say this about Fornshell: he’s got a pair.

Reason One:  Applying the new law to this situation is a stretch.

The new legislation was found in HB 326.  This law prohibits a person from making “a direct or indirect transaction of public funds to the benefit of” a political campaign, including any party, committee or candidate.  The Elam letter doesn’t violate this statute because it is not a transaction involving public funds, and it doesn’t benefit any candidate or party.

In addition, application of the statute in this situation may violate the First Amendment.  Elam certainly has a protected right to express his opinion about which candidates are better for education.  As a result of several U.S. Supreme Court decisions, courts now generally enforce the idea that individuals do not relinquish all of their First Amendment rights simply because they are employed by the government.  The government can impose some restrictions, and perhaps he violated a school policy by using school letterhead, but this strikes us as an administrative or HR matter, not a criminal offense.

Reason Two:  Fornshell is not a career prosecutor, he is a career Republican politician.

Here is what the Dayton Daily news wrote about Fornshell when he first ran for prosecutor in 2004:

An ambitious politician wants to throw out a longtime assistant prosecutor – Rachel Hutzel – who ascended to the top job based on her experience. In making his bid, David Fornshell flings charges that he can’t back up, and he presents himself as a career prosecutor, when in fact, he’s never taken a felony case – the most serious kind – to trial. Not once.  Mr. Fornshell is unmistakably not qualified to be county prosecutor, not to mention that his style and temperament are all wrong for a job that requires evenhandedness and a scrupulous sense of fairness.

Eight years later, Fornshell still has not demonstrated “evenhandedness and a scrupulous sense of fairness.”  Fornshell is the former chair of the Warren County Republican Party and a current member of the county Republican Central Committee.  More importantly, he seems to allow politics to play a role in his office as three assistant prosecutors who work for Fornshell are also on the County Central Committee.

Fornshell clearly has state-wide ambitions.  In past elections, he has donated not only to local political campaigns, but also to John Kasich, Mike DeWine, Josh Mandel, Ken Blackwell.  He has also donated to state representatives Pete Beck, Robert Mecklenborg, and Shannon Jones.

It’s hard for Fornshell to suggest that he supports “law and order” candidates when he gave money to Beck, who is under multiple investigations, and Mecklenborg, who falsified state records in order to hide a drunk driving arrest.

Fornshell is clearly more interested in punishing critics of Kasich than in enforcing the law. A prosecutor who was concerned with upholding this law would assign the case to a Democratic prosecutor from another county or a non-partisan career prosecutor in his office.  Instead, Fornshell is grandstanding by giving newspaper interviews.

We are confident in this criticism because Fornshell has never opened up an investigation of corrupt election practices prohibited by Revised Code 3599.05.  This section prohibits employers from posting statements in workplaces “containing any threat, notice, or information that if any particular candidate is elected or defeated work in the establishment will cease in whole or in part . . .”  This section of Ohio law seems to apply directly to threats by the owners of Papa Johns and other businesses with locations in Warren County who threatened to layoff employees or cut hours if the President were re-elected.

  • Could it be the Fornshell will make the argument the Superintendent used his work time and resources to send the letter home and that would be where they think the law was violated? Does it have to be cash to be a violation?

  • DublinIrishBob

    Wow! Maybe The Columbus Dispatch will look into this and write an editorial about this, perhaps calling it a vendetta? They took a strong stance today against Obama that surely they will be even-handed and call it what it is.

  • Leonidas

    Good question. “Theft in office” charges are typically brought when someone does purely personal work while on state time. Since this is certainly work related, those charges would not be applicable.

    We discussed theft of office charges in this post on Heffner. Interestingly, we said the same thing then about conflict of interest by prosecutors in political cases:

    “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.”


    Fighting year after year for children in poverty is trying. As time passes you recognize that the children you were fighting for are gone, their opportunity lost. New ones arrive, struggle, and then they too are soon gone. Time becomes the enemy of such struggles. It was 16 years ago that the SCSO declared Ohio’s funding as unconstitutional; that we are “to provide for a thorough and efficient system of common schools”. During that time we have watched as children in poverty have moved to drugs (meth, heroin, oxycontin) or other acts of hopelessness. We then spend money trying to fix those problems not understanding that had we invested in our children first, they would have had greater hope, greater skills, and a greater opportunity to make better choices. Yes, my sympathies are with Superintendent Elam. My hope is that others will be as brave. My fear is that such investigations will stifle many. My optimism is that the truly brave are seldom stifled.

  • anastasiap

    OK, Josh Mandel did “purely personal work” on state time. Worse, he did unrelated political work — taking off an endless stream of work days to do fundraising for his Senate campaign. He cannot have had THAT many vacation/personal days. So maybe we should be going after him.

  • Unconscious Conscience

    Elected officials from local to statewide are not required to maintain set office hours or work a certain number of hours per day. Lots of them only have to show up once per quarter or less. Some have NO requirements at all to be in their public office.

  • amyvav

    I have been hoping for some time that superintendents would band together and start complaining. I think the media would have to take notice if a few hundred of them descended on the statehouse and demanded change. Of course, the fear of fewer funds keeps them from making much of a fuss, but there aren’t many funds left to cut. Freedom, as they say, is just another word for “nothing left to lose.”

    Clearly, those in Columbus are terrified that the superintendents will get vocal against them. Otherwise, why all the kerfuffle over one little letter?? Obviously all the superintendents will not be willing to participate. A quick perusal of the funding increases in some districts made me physically sick. (My district is a little difficult to find. It’s one of the many with the little “-” instead of a dollar figure in the “increase” column.) However, they have to start doing something. They have a responsibility to their districts and, more importantly, to the young people of this state who are suffering under this cruel joke of an administration.

  • amyvav

    I’m pretty sure the state’s Treasurer is expected to be in his office more than once per quarter and to be in attendance at committee meetings at least every once in a while.

  • Unconscious Conscience

    What makes you say that? There is little mention of mandatory time in office for public officials in Ohio at the state or local level. The elected officials are on their own schedules as they see fit pretty much to come and go as they please. It’s a dirty little secret that most of these jobs are really part-time for the elected officials.

  • anastasiap

    You know what? If a Democrat had done what Mandel did, it would have made headlines in every newspaper in the state and there would have been no such assumption that elected officials are allegedly free to “come and go as they please.” It was manifestly clear that Mandel was letting bureaucrats run the office while he ran for Senate – and we were paying his salary. If a Democrat has done that, you can bet the Columbus Disgrace and the Cleveland Plainly Republican would have been running story after story about him neglecting his work while being supported by the taxpayers — just like they do every time they catch a goldbricking sewer worker.

  • Unconscious Conscience

    There is no requirement anywhere for Ohio elected officials to show up for work on a routine – eight hour, work day as the public might expect from a non-elected or non-appointed public employee.

    That’s the essence of the game that politicians in Ohio, state-wide all Republicans, play. As Dire Straits once sang it’s “Money for Nuthin”

    t enables the officeholder to campaign and raise money 365 a year and let the work of the public be don by the apparatchik functionaries and bureaucrats.

  • amyvav

    Point taken. My point is that there is an expectation for officials in the highest state offices to do their jobs. I don’t care if they are in their office at 8 am or hunched in front of a computer in their basement at midnight. Of course, many elected officials are part-time – township trustees, coroners, whatever… It isn’t office time that’s mandatory – it’s getting the job done. I don’t care whether it’s by a Republican or Democrat.

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