Welcome to the Business Journal Archives
Search for articles below, or continue to the all new BusinessJournalDaily.com now.
Search
Magistrate Rules Against City; Businesss Journal Wins Case
"YOUNGSTOWN, Ohio -- After a year-long legal battle, Mahoning County Common Pleas Magistrate Eugene J. Fehr has ruled against the city of Youngstown and Mayor George McKelvey, finding the city violated open records laws by withholding public records from The Business Journal regarding development of the Youngstown Convocation Center.Fehr filed his ruling Dec. 22; it was received, via mail, Wednesday.As compensation, Fehr ordered the city to pay all attorneys' fees that the Youngstown Publishing Co., which does business as The Business Journal, incurred as a result of the lawsuit, filed Oct. 31, 2003.Business Journal Publisher Andrea Wood estimates legal fees at "nearly $25,000."In his opinion, the magistrate singled out Mayor McKelvey's actions that instructed city officials not to speak with Business Journal reporters. "This edict had a chilling effect upon the free exchange of information between city officials and The Youngstown Business Journal so necessary in a democratic society," he found.McKelvey said last night that he was aware of the decision, but withheld comment until outgoing Law Director John McNally IV could review the opinion and provide him with more information. McNally was sworn in Wednesday as a member of the Mahoning County Board of Commissioners. His term begins with the new year.McKelvey instructed city employees not to discuss any official business with Business Journal reporters after the paper published a series of articles questioning the purchase of a 26-acre parcel between the Market Street and South Avenue bridges for construction of the convocation center.In those articles, The Business Journal questioned the city's decision to pay $1.5 million for the land between the bridges without any formal appraisal. It is the same land that George M. Alexander, a confidant of former U.S. Rep. James A. Traficant and a disbarred attorney who began serving a federal prison term for racketeering in February 2000, tried to sell the city at least six times in 1997 for $1 million.Then Mayor Patrick J. Ungaro repeatedly declined the offer, The Business Journal reported, because he thought the price was too high and the land too compromised. Not only did an old 84-inch sewer line bisect the property, The Business Journal reported, old cement foundations were deeply imbedded. Both impediments would greatly increase the cost of site preparation, the newspaper noted.Between February and May of 2003, the newspaper issued a series of public records requests intended to seek information on the project. Some of those records were provided, but others pertaining to the project that fell within the scope of the paper's requests were not. In October 2003, a column by Vindicator political columnist Bertram deSousa quoted a letter McKelvey wrote to Elias Alexander regarding the purchase of the 26-acre parcel. Although the letter fell within the scope of The Business Journal's records requests, it was not furnished to the newspaper, prompting the lawsuit.After the suit was filed in October 2003, newspaper representatives spent a total of 13 hours with McNally and examined hundreds of documents related to the development of the convocation center. During that process, The Business Journal retrieved 65 documents the paper requested but the city did not turn over.Fehr heard two full days of testimony in late January 2004 and closing arguments in February. During those hearings, Business Journal attorney Richard P. McLaughlin introduced the documents as evidence and also held that the actions of McKelvey constituted a spirit of "bad faith," in which he directed officials to cooperate with other media outlets, but not The Business Journal.Although city officials maintained all documents had been turned over after the lawsuit was filed, The Business Journal produced one document that the city did not provide. The document, a letter dated Feb. 19, 2003, from MS Consultants Inc. to David Bozanich, city finance director, included costs estimates for relocating the sewer line on the convocation site. "This record was requested Feb. 24, 2003, and again May 7, 2003," the magistrate wrote in his ruling. "During the Jan. 23, 2004, hearing, Mr. Bozanich recognized the letter and speculated that it may be in the B.J. Alan Co. project file. Mr. Bozanich confirmed during the Jan. 30, 2004, hearing that the Feb. 19, 2003, letter from MS Consultants was in the B.J. Alan project file. The fact that Mr. Bozanich immediately speculated correctly as to the whereabouts of [it] suggests that it was unreasonable for him to have not considered looking in the B.J. Alan project file when confronted with public record requests specifically seeking such information."While Fehr's ruling was critical of McKelvey and Bozanich, it did not find fault with the McNally's actions. "The law director's good faith efforts to comply with the [newspaper's] public records request contrasts with the mayor's ill will toward the [newspaper] and makes the decision to award attorney fees difficult. However, the award of attorney is granted."Asked if she thinks The Business Journal has been vindicated by the ruling, Wood said, "It's not about us. It's about the public. Those are public records that anyone should have access to. When someone makes a request to see those records, public officials are obligated to turn them over. The public ought not be afraid to ask for them for fear they will be denied. This sets a precedent and, I hope, will help put an end to something that happens all the time throughout Ohio."Citing the Supreme Court of Ohio, Fehr writes in his ruling: "The rule in Ohio is that public records are the people's records, and that the officials in whose custody they happen to be are merely trustees for the people; therefore anyone may inspect such records at any time, subject only to the limitation that such inspection does not endanger the safety of the record, or unreasonably interfere with the discharge of the duties of the officer having custody of the same." Fehr denied award of forfeiture fees in the case because, court documents state, there was "no evidence that any public official removed, destroyed, mutilated, transferred or otherwise damaged or disposed of" any public record."