CLEVELAND, Ohio — Prosecutors want an appeals court to find that a Cuyahoga County Common Pleas judge misconstrued the state’s anti-corruption statutes when attorney general charged former Brecksville City Councilman Jack Petsche last month with an unlawful interest in a had acquitted public contract.
Ohio’s 8th Circuit Court of Appeals cannot overturn Judge John J. Russo’s acquittal of Petsche, who voted twice in 2018 to allocate public dollars to build a new police station. Petsche’s roofing company was involved in the project as a subcontractor.
Instead, assistant prosecutor James Gutierrez said in a court filing last week that if the appeals court does not issue an opinion rebuking Russo’s interpretation of the law, the judge’s decision could set “a dangerous precedent” that would undermine state law and bar officials could benefit from public contracts.
“The trial court simply ignored the facts and the law to come to a conclusion that defied logic and common sense,” Gutierrez wrote.
Ohio Attorney General Dave Yost’s office requested permission to file a Friend of the Court brief arguing that Russo’s ruling did not follow previous court rulings and statements by the Ohio Ethics Committee in cases where officials have been accused of doing similar things to have committed acts like Petsche.
Defense attorneys Paul Daiker and Larry Zukerman filed a notice with the court stating that they will oppose the appeal. You have until May 16 to appeal.
“It is unfortunate that the government, through the Cuyahoga County Attorney’s Office and Attorney General’s Office, wants to waste resources by appealing a decision that cannot result in victory in law or in fact,” Zukerman told cleveland.com and The Plain dealers “The defense is very disappointed that the government cannot accept the reality of the situation, which has recognized Mr. Petsche’s acquittal and confirmed that in fact he did nothing wrong.”
The charges against Petsche stem from the City of Brecksville’s 2014 contract with Panzica Construction to build a new police station. Panzica was the general contractor for the project and subcontracted to a number of companies including Petsches USA Roofing.
Petsche took office in January 2018 and twice voted to give Panzica more money for the project, never telling fellow council members that his company was a subcontractor.
Mayor Jeff Hruby said an employee in charge of billing told him after the votes that USA Roofing was listed as a subcontractor for Panzica’s filings with the city. Hruby said he referred Petsche to the Ohio Ethics Committee, which recommended criminal charges.
Prosecutors argued Petsche had not yet been paid when he voted to give Panzica more money for the project. If Panzica is not paid, prosecutors argued, Petsche could not be paid.
Petsche’s lawyers told the court that Petsche signed the contract with Panzica before he took office. When he voted to allocate future funds to the project, there was still money left over for it that the council set aside in 2014, so he wasn’t paid out of the money he voted for, lawyers argued.
They also said that Petsche did not believe his votes were fake and that he took no steps to hide his involvement. USA was listed in the contract presented to Hruby and the city council after Petsche took office, and it was common knowledge that Petsche owned USA Roofing, his attorneys said.
Russo found that there was insufficient evidence to convict Petsche because prosecutors could not show he had a “definite and direct fiduciary or financial interest” in his votes to fund the project. Russo also noted that prosecutors could not prove that Petsche “knowingly committed an act contrary to the law.”
In their appeal, prosecutors said Russo was wrong on both counts.
Russo’s definition of “interest” in a public contract was based on a 1974 case, but prosecutors said later court and ethics committee opinions used a broader definition that would include Petsche.
Gutierrez called Russo’s definition a “hypertechnical reading of [the law] created this loophole that allows an official who is a subcontractor on a government contract to vote for the funding of that contract, from which he is then paid. This totally goes against the intent and spirit of the law, which prohibits officials from voting on contracts in which they have an interest.
The filing also attacked Russo’s finding that prosecutors had to show Petsche knowingly broke the law in order to convict him.
They cited the common law maxim that “ignorance of the law is no excuse,” and previous cases where courts had ruled that prosecutors only need to show that a person committed the wrongful act, not that they knew theirs action violates the law. In that case, prosecutors argued, Petsche knowingly voted on the contract.
“[I]If the trial court’s verdict remains intact, it will open the door to any official who simply claims “I didn’t know” to circumvent the state’s ethics laws,” Gutierrez wrote. “Ignorance is simply not a defense, but in the court’s view, it is.
“This court should correct that error of law to ensure that the state of Ohio can effectively hold officials accountable for their intentional conduct, regardless of whether they knew their conduct violated an ethics statute.”