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By Laura A. Bischoff, William Hershey and Jessica Wehrman

Staff Writers

Tuesday, May 06, 2008

COLUMBUS — If Ohio Attorney General Marc Dann survives an impeachment movement, he'll follow the in the footsteps of Calvin Pease and George Tod — two judges who were impeached by the House but acquitted in the Senate.

The year was 1809.

Extras

Attorneys in the Legislature and governor's office are dusting off the history books and brushing up on impeachment — just in case Dann, 46, continues to refuse to resign his position in the wake of a sexual harassment scandal in his office.

His own party told him Monday: resign or be impeached.

"This kind of behavior is not acceptable for a Democrat or a Republican," said House Minority Leader Joyce Beatty, D-Columbus. "The public deserves better. I have no interest in defending the indefensible. I hope Marc Dann will do the right thing and resign."

The Ohio House of Representatives has the authority, by a majority vote, to impeach Dann for any "misdemeanor" — as defined by the House. An impeachment would serve like a grand jury indictment and would go to the state Senate for a trial. A conviction, resulting in his removal, would require support from 22 of the 33 senators.

"If you look at the Constitution, the conditions leading to impeachment are rather vague and non-specific," said Democratic Gov. Ted Strickland. "Being aware of that I believe that if you look at the total of what has already come out in the investigation ... I believe that impeachment would be justified."

But Cleveland State University law professor Steven Steinglass, who co-wrote "The Ohio State Constitution: A Reference Guide," said he does not see impeachment as a slam dunk. Misdemeanors must be very serious, not just misdeeds, he said.

"I haven't heard anything yet that makes me believe that this rises to the level of impeachment," he said.

That opinion is not universal, however. It's up to the General Assembly to decide what constitutes a misdemeanor, said University of Dayton law professor Charles Hallinan, who specializes in the Ohio Constitution.

"It's not implausible to me the (General) Assembly could conclude that those behaviors are sufficient to constitute misbehavior that would be an impeachable offense," Hallinan said.

Last week, Dann fired three top aides connected to a sexual harassment scandal and admitted that he had an affair with his former scheduler, Jessica Utovich, 28. Although she resigned, Dann said he had no intention to step down. Rather, he said, he would "work tirelessly to regain the public trust."

Dann's admissions went well beyond the affair. He also admitted that he wasn't prepared to be attorney general when he won a surprising victory in 2006, that he hired cronies into his administration, and that he set a poor example with his own behavior, implying to his friend and neighbor, Anthony Gutierrez, that he could act with impunity. Dann failed to call a cab for a 26-year-old female employee, Cindy Stankoski, when she showed up drunk at Dann's apartment with Gutierrez, her boss. And under oath, he dodged questions about his relationship with Utovich.

Although the sexual harassment complaints were against Gutierrez, including for behavior at the apartment Dann shared with him, the attorney general insisted on conducting an internal investigation rather than send it to an independent body.

Both parties were circling the wagons around Dann on Monday.

"This scandal in the Attorney General's office has greatly diminished Marc Dann's fitness for public office," said Senate President Bill Harris, R-Ashland. "He should do the honorable thing and resign."

Harris said he would support calling for an independent investigator to answer unanswered questions stemming from the internal investigation. "In my view, the only way to get to the bottom of this scandal and ensure there can be no charge of bias is to enlist the state inspector general," Harris said.

Beatty said Democrats won't hesitate to draft an impeachment resolution "when and if appropriate."

Impeachment in Ohio is extremely rare. According to research by the Ohio Legislative Service Commission, in the early 1800s, seven judges were impeached and all but one were acquitted in the Senate. The articles of impeachment would likely be drawn up like counts of an indictment so that Dann could frame a defense to each charge. The House would vote on each article, one by one. If a majority of the House voted for impeachment, the Senate would summon Dann to appear to answer to the articles.

Strickland said the decision to seek Dann's resignation wasn't personal.

"We need the attorney general's office to be effective and Ohio, I think, will benefit from new leadership in that office," he said.

Contact this reporter at (614)

224-1624 or lbischoff@DaytonDailyNews.com.

Who might be considered to replace Marc Dann

Ohio Treasurer Richard Cordray, 49, is the former Franklin County treasurer who was first elected statewide in 2006.

Cuyahoga County Prosecutor William Mason, 48, prosecutor in Ohio's largest county since 1999, is currently running for re-election.

Strickland Chief Legal Counsel Kent Markus, 49, had been nominated but never confirmed to the federal bench; served as a top aide to U.S. Attorney General Janet Reno.

> Do you think Marc Dann should resign?

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