To distance themselves from Mark Naymik's racially intended hit pieces on Councilman Ken Johnson, Advance media editors had another reporter, Robert Higgs, do an "impartial" review of council expense reports. The effort backfired in a major way as Factchecker, aka former East Cleveland Mayor Eric J. Brewer, sliced and diced the article:
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As Factchecker has established - this coverage is bogus. An exhaustive search of other councilpersons' expense accounts will show that every council person - especially Anthony Brancatelli -abuses this "perk." Brancatelli avoids capping out at $1200 each month by carrying over the expenses to following months. Many times, months later. He also uses his HUD CDBG funded Slavic Village CDC to keep an email account separate from his official Council email.- lmcshane
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After this story was published yesterday, Robert, you attended a council meeting of committee presidents. Ken Johnson spoke and explained that the gas bill you ripped him for was for removing snow from senior and disabled sidewalks and driveways; and for inspecting the 600 vacant properties in his ward for open doors and loose boards. He mentioned "Alliana DeFreeze" as the basis for the vacant property inspections and you approached him afterwards. You have more information that contradicts the false premise behind Mark Naymik's stories and yours but you've not shared it. Nothing more underscores the points I've made here and other forums about the trustworthiness of news coming from writers like you, Naymik and others. It's not what you share. It's what you don't. You have now intentionally left your readers with the wrong impression even though you have more facts they can use to compare what you shared yesterday to what you also learned yesterday.
I know you attended law school and don't practice. I know your license is inactive. But the ethics of the profession you don't practice respects justice and fairness even if individual lawyers don't.
If you were a prosecuting attorney who has just discovered the man he's trying to prosecute is innocent, Disciplinary Rule 3.8(d) instructs prosecutors they shall not "fail to make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, fail to disclose to the defense all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by an order of the tribunal."
So the real question, Robert, is are you ethical? ~Factchecker
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The IRS requires car allowance mileage to be documented. You made no mention as to whether or not the car users were documenting mileage to and from destinations. In Johnson's case there'd be no IRS issue because his gas money is going for lawn mowers and snow blowers to help out seniors. But in Zone's case he should have mileage to and from everywhere he goes; even when he leaves home for city hall. If he doesn't document the mileage then the money has to be recorded as an earning on his income tax return. And if he's getting an earning then it's an extra unappropriate wage and theft in office. Kelley has a car assigned to him. Again, there are no "duties" for any member of council outside city hall; so no matter how he stretches it Kelley doesn't need a car and neither does Zone or Dona Brady. By not knowing the real state laws found in Title 7 that identify the duties of council members articles like this mislead. ~Factchecker
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Your story observes that members of council are using funds appropriated for expenses to pay extra wages to their aides. State law, again, gives council the power and duty to set wages "by ordinance." Once a wage is set in an ordinance it can't be increased with money appropriated for expenses. Your headline should have read, "Kelley leads misappropriation of council funds." You have to read laws before you write.
731.08 Power of legislative authority as to salaries and bonds. Except as otherwise provided in Title VII [7] of the Revised Code, the legislative authority of a city, by ordinance or resolution, shall determine the number of officers, clerks, and employees in each department of the city government, and shall fix, by ordinance or resolution, their respective salaries and compensation, and the amount of bond to be given for each officer, clerk, or employee in each department of the government, if any is required. Such bond shall be made by such officer, clerk, or employee, with surety subject to the approval of the mayor. Effective Date: 10-01-1953 . ~Factchecker
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Every time a member of council eats a meal paid for by their expense account it's a misappropriation of public funds. They are appropriated set wages. Wages pursuant to R.C. 731.07 cannot be increased or diminished during a "term" in office. Every meal eaten with public funds is an additional and unappropriated benefit. This story misses the nuances of laws that describe how the cars, car insurance, gas and meals are added earnings pursuant to the federal tax code
731.07 Salaries shall not be changed during term. The salary of any officer of a city shall not be increased or diminished during the term for which he was elected or appointed. This section does not prohibit the payment of any increased costs of continuing to provide the identical benefits provided to an officer at the commencement of his term of office. Unless otherwise provided, all fees pertaining to any office shall be paid into the city treasury. Effective Date: 01-09-1981 ~Factchecker
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Here are the legal powers of a member of council as identified in the Revised Code of Ohio. Does any of what's written require cars, ward lunches, ward offices, etc? The law below has been on the books since October 1, 1953. If you knew the legal duties of a member of council you might realize you've been writing about the wrong stuff.
731.05 Powers of legislative authority. The powers of the legislative authority of a city shall be legislative only, it shall perform no administrative duties, and it shall neither appoint nor confirm any officer or employee in the city government except those of its own body, unless otherwise provided in Title VII [7] of the Revised Code. All contracts requiring the authority of the legislative authority for their execution shall be entered into and conducted to performance by the board or officers having charge of the matters to which they relate. After the authority to make such contracts has been given and the necessary appropriation made, the legislative authority shall take no further action thereon. ~Factchecker
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Reply to @Nocrony: I cast fault with misguided reporting. I've shared statutes that are free and online. Had the reporter read the statutory duties of a member of council before he questioned one about his or her expense account he could have asked them to cite the specific section of the state law, charter or city ordinances that gave them dutis that required the use of a car. meals and an $800 a month ward office bill. And had the writer known that these acts were not connected to a council member's official duties, by law, then he would have guided his readers to different and more accurate conclusions about what council members are doing versus what the law requires them to do. So when he looked at a report for "code enforcement" he would have known council members can perform no administrative duties. What you've read is a very long story that was completely constructed on a wrong premise. This is an attempt to make 13 wrong stories about Ken Johnson right. This is number 14 and the premise is still wrong. ~Factchecker
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Reply to @Robert Higgs, cleveland.com: [2] That is absolutely the most wrong interpretation of an Ohio statute written in plain English I've ever read. No, Robert. You're wrong. R.C. 731.05 does apply to Cleveland city council as a "general law" that applies to all councils. You're telling me that council members in charter cities can perform the administrative duties of mayors? That would mean the council members in cities like East Cleveland, South Euclid and Lakewood with charters are mini-mayors. You forgot the basics of government, Robert. Three branches. Legislative. Administrative. Judicial. All separated by laws you haven't read or understand and you know "exactly" who I am. What you've proved with your flawed interpretation is that you lack the basic understanding of government to cover it competently for your readers. It's the reason the 14 stories are flawed. If you know no laws then you can't evaluate the spending of public officials whose acts are governed by the laws you don't know. The auditor of state audits Cleveland's financial records. Johnson's been on council since 1981. That's 38 audits by state auditors who know the laws you don't; and they've come up with nothing. You and Mark haven't either. ~Factchecker
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Here's the story you missed. The only power of a member of council is to vote and talk to officials at council meetings. If they stayed inside city hall and not the streets people could lobby them for legislation just like they lobby congress and the general assembly. That's it. They have no "ward" duties. The car, car insurance and money for lunches has nothing to do with the legal duties of a member of council. It's a slick way to get an extra benefit off the taxpayers. It should be recorded on their income tax returns as income, which exceeds the authorized amount they're paid by ordinance. Every member of council who didn't include the car payment on their tax returns committed a count of federal wire fraud when they put a stamp on it; and filing a false tax return. Each year a separate count. Check Matt Zone's "Minh Anh" receipts. Just the fact that they submitted a receipt doesn't mean the itemization included who ate. I saw him there with his wife and family dining for a ward meeting. The next time you and Mark write about council read the duties of a council member for perspective, first. You missed the story. Councilmen don't do "code enforcement." They're telling you about all the crimes they're committing and you don't write about them as crimes. ~Factchecker
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For what it's worth I already have the expense reports of the council members and have drawn my own conclusions about the information you left out of Zone's reports and others; or didn't understand.
You've picked through the reports as if your evaluation of the expenses is a legal analysis based on a comparison of local, state and federal spending laws neither of you have ever cited or shown you understand. Consider, Robert, that the duties of council members are "legislative only." So a lunch or ward meeting should connect to a legislative act. You cite lunches but you don't seek to know the individual names of the lunch attendees. You cite travel but for what legislative purpose?
To be used in support of a public duty the expense money must be appropriated in connection with pending legislation, repealing legislation or amending legislation. Research for a council "investigation" like those conducted by Congress. Investigating is a legislative duty found in R.C. 733 and a supported expense. Ward meetings are not legislative acts if the meeting isn't connected to a discussion with residents about pending, repealed or amended legislation.
Even your headline misleads. $1200 a month for Johnson. Then you write that Kelley's spending "typically exceeded $1100" a month without saying he was within cents of Johnson's $1200 to keep him from looking as bad as Johnson. I've got the reports. I know what you left out.
Zone uses the money like others as a slush fund to make car, insurance, house, utility payments and lunches. It pays for computers, printers and cell phone bills. It's extra compensation above their statutory wages and illegal. Even the annual pay raises based on police union increases is illegal. Your story misses the big picture. ~Factchecker
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Reply to @Robert Higgs, cleveland.com: [3] As I shared in other comments, Robert, council passes a salary ordinance. It's a requirement of law that it be done annually. Wages are set by ordinance. Any dollars appropriated for "expenses" and then added to an employee's line item for "wages," would also increase the city's pension contribution to the employee. What you've described, Robert, is "theft" and a reportable offense to the Auditor of State and the Ohio Public Employee Retirement System.
That's the point about your story. You're identifying real crimes being committed by council members like Kelley and Zone and acting like they are okay because you're focusing on one councilman and his gas expenses for mowing the lawns and removing snow from the sidewalks of the homes of poor black folk. ~Factchecker
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