What’s required
Except under certain circumstances, the attorney general “shall represent and defend the officer or employee in any civil action instituted against the officer or employee.”
Exceptions
If the attorney general determines that the office holder or employee “was acting manifestly outside the scope of his employment or official responsibilities, with malicious purpose, in bad faith, or in a wanton or reckless manner, the attorney general shall not represent and defend the officer or employee.”
Employer’s duty to provide information
“The employer of the defendant officer or employee shall provide the attorney general with a written report indicating the present or former position, job title, classification of the officer or employee with the state and, citing pertinent facts, whether in its opinion the officer or employee meets the requirement” for representation.
Confidentiality
“Information obtained by the attorney general pursuant to his investigation to determine whether to defend an officer or employee is privileged and is not admissible as evidence against the officer or employee in any legal action or proceeding and no reference to the information may be made in any trial or hearing.”
Recourse if representation denied
If the court of claims finds that an employee or officer was entitled to representation, “the court shall enter judgment against the employer in favor of the officer or employee in the amount of the reasonable expenses incurred by the officer or employee in providing his own defense and in bringing the action authorized by this section.”
Source: Ohio Revised Code, 109.361-109.365
COLUMBUS — Ohio taxpayers are right in the middle of the civil rights lawsuit that Samuel Joseph — “Joe the Plumber” — Wurzelbacher has filed against three former state employees, charging that they illegally accessed his confidential information through state databases.
Ohio Attorney General Richard Cordray’s office is defending former state employees Helen Jones-Kelley, Douglas Thompson and Fred Williams. All have denied wrongdoing and asked that the case, filed last March in U.S. District Court in Columbus, be dismissed.
Jones-Kelley was director of the Ohio Department of Job and Family Services, Williams was the department’s assistant director and Thompson the deputy director of child support when the “Joe the Plumber” controversy erupted during the 2008 presidential campaign.
Jones-Kelley and Thompson are from the Dayton area.
Jones-Kelley and Williams resigned and Thompson had his job “revoked” in the wake of a report from Inspector General Tom Charles that found confidential state databases with personal information on Wurzelbacher were improperly accessed.
Cordray, a Democrat, said last week that he is following state law that “says in effect if you’re a state employee and you’re sued for work done in the course ... of your employment, you’re entitled to a defense by the state attorney general’s office.”
The two Republicans seeking their party’s nomination to run against Cordray next year disagreed.
“These people violated the privacy of an Ohio citizen and they did it, it would appear, to advance a partisan political campaign, and I think taxpayers will be shocked to find that their tax dollars are going to defend them,” said Mike DeWine of Cedarville, the former U.S. senator and Greene County prosecutor.
Added Delaware County Prosecutor David Yost: “It’s an outrageous use of taxpayer money to defend the invasion of a citizen’s privacy.”
Cordray said his decision was made to “minimize the taxpayer exposure.” If the attorney general denies representation, he said, an employee can go to the court of claims after the lawsuit is terminated and seek to recover expenses, including court costs, attorney’s fees, investigative costs and expert witness fees. Private attorneys charging hourly rates would be expensive, said Cordray. To avoid this, the decision typically is made to provide representation, Cordray said.
He acknowledged that there are exceptions to the requirement that the attorney general represent state employees. For those to come into play, a determination must be made that the employee was acting “manifestly outside the scope of his official employment or official responsibilities, with malicious purpose, in bad faith or in a wanton or reckless manner.”
Another section of the law bars Cordray from discussing the information used to determine whether to represent the employees, he said. To meet the law’s legal requirements, Cordray would have had to have been sent a written report from the employers of each state worker outlining whether they met the requirements for representation.
“We have followed the process provided ... and had a judgment to make and that’s the judgment we made,” said Cordray.
The inspector general’s investigation provided “some of the facts that were before us,” said Cordray.
“There are other facts before us, and we had to make a judgment on the facts ... that’s what I can’t really talk about,” he said.
As a result of the inspector general’s probe, Strickland suspended Jones-Kelley for a month without pay. Thompson was suspended for four weeks without pay and Williams was suspended for two weeks without pay, both by acting ODJFS Director Jan Allen.
Charles Hallinan, a professor at the University of Dayton law school, said he would want to see the privileged information the attorney general received from the employers before commenting on whether he thinks Cordray should provide representation.
“If I took the inspector general’s report at face value, including the conclusion, if I reached the same conclusion as the inspector general, then I would be inclined to say ‘deny representation,’ ” Hallinan said. “At a minimum, I think the inspector general concluded that they were acting at least in a reckless manner.”
However, Hallinan said, the final decision is Cordray’s: “The attorney general is supposed to make his own investigation. He is not bound by what the inspector general said.”
Wurzelbacher, from the Toledo area, became a household name around the world after he met Barack Obama in October 2008 while Obama was campaigning for president and questioned Obama’s tax policies. Wurzelbacher, who was not a licensed plumber but worked in the plumbing business, ended up endorsing Republican John McCain for president.
In his lawsuit, Wurzelbacher charged that Jones-Kelley and the others searched confidential databases to retaliate against him for criticizing Obama. Such actions, he said, “are sufficient to chill or silence a person of ordinary firmness from future First Amendment activities.”
Cordray said his office is “fully enforcing” legislation passed after the “Joe the Plumber” case aimed at cracking down on government snooping with civil and criminal penalties.
Contact this reporter at (614) 224-1608 or whershey@DaytonDailyNews.com.
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