Saturday, September 04, 1999

'74 Leis advice: No staff lawyers

Prosecutor: Same law applies now

The Cincinnati Enquirer

        When Simon L. Leis was Hamilton County's prosecutor in 1974, he wrote a legal opinion advising the sheriff's office not to hire a lawyer at taxpayer expense.

        Prosecutors say the letter shows that Mr. Leis, who is now sheriff, should have known he could not use his own lawyers to represent him in several recent legal matters.

        “The circumstances haven't changed,” said Prosecutor Mike Allen. “Nothing is different.”

        The letter to then-Sheriff Paul J. Fricker cites an Ohio law that identifies the prosecutor as the “legal advisor” to all county officials and boards.

        “It is our opinion that you may not employ legal counsel and pay such counsel from county funds,” Mr. Leis wrote in the letter, which was obtained Friday with a request under the Freedom of Information Act.

        Because the law cited in the letter has not changed in 25 years, Mr. Allen said it supports his position that Sheriff Leis should not allow the two lawyers in his office to do legal work.

        Sheriff Leis, however, said other state laws have changed since 1974 and permit him to hire the attorneys.

        He said most of the work performed by the lawyers — Gail Wright and David Albanese

        — involves labor negotiations, arbitration disputes and small claims lawsuits.

        Although Mr. Allen contends it's improper for the sheriff's office to do most of that work, Sheriff Leis has said it's more efficient to handle it in-house.

        The sheriff said his 1974 opinion to Sheriff Fricker does not mean he has changed his position. What has changed, he said, are the circumstances.

        “You can't compare 1974 to 1999,” said sheriff's spokesman Steve Barnett. “It's like comparing the horse and buggy days to the jet age.”

        In a written statement, Sheriff Leis said the key differences involve the dramatic growth in the size and responsibilities of the sheriff's office.

        He said the number of employees has risen from 350 to 992 since 1974. At the same time, Sheriff Leis said, the office was unionized and is now subject to complex federal labor laws.

        “It only stands to reason that a law enforcement agency employ individuals with legal experience,” Sheriff Leis said in his statement.

        The sheriff also said an Ohio law was modified two years ago to allow attorneys who are sworn deputies to perform legal work.

        According to the law in 1974, “No sheriff, deputy sheriff or coroner shall practice as an attorney.” When the law changed, “deputy sheriff” was deleted.

        “Deputy sheriffs could not practice law in 1974,” Sheriff Leis said. “In 1999, they can.”

        Mr. Allen said the sheriff's argument is “a smoke screen” because the law Sheriff Leis is citing today is not the same law he cited in 1974 when he warned Sheriff Fricker against hiring in-house attorneys.

        The law cited in the letter states that the prosecutor “shall prosecute and defend all suits and actions” involving county officials. “No county officer may employ any other counsel or attorney at the expense of the county,” the statute reads.

        According to the latest edition of the Ohio Revised Code, that law has not changed since 1974.

        “It is identical to the law today,” Mr. Allen said.

        The dispute between Mr. Allen and Sheriff Leis began last week after the sheriff filed a lawsuit against the Democratic National Committee seeking to recover expenses from a presidential visit.

        Mr. Allen said the lawsuit, which the sheriff withdrew Thursday, had no legal merit and violated state statutes because sheriffs are not permitted to file lawsuits.

        The prosecutor then learned that the sheriff's office has filed at least 41 small claims suits against former employees who owe money for training expenses.

        Mr. Allen said improper court filings could lead to chaos because they involve dozens of individuals and thousands of dollars.

        He has described the sheriff's actions as “arrogant” while Sheriff Leis has said the prosecutor's position on the issue is “ridiculous.”

        The county Republican Party chairman, H.C. “Buck” Niehoff, called a meeting Friday to bridge the gap between the public officials.

        “It was an extremely open and positive meeting,” Mr. Niehoff said. “Both said they will continue to work together as team players in their commitment to law enforcement.”

        Both men, however, said they remain convinced each is right.

        The sheriff said the release of his 1974 letter has changed nothing. He said he agreed to release the letter even though it was a privileged legal communication and did not have to be made public.

        “Sheriff Leis waived that privilege ... because the law has changed in substance and dynamics over the past quarter of a century,” the sheriff said in his statement.

        He also noted that prosecutor's opinions are legal advice and are not binding like a court order.

        While that's true, Mr. Allen said, the law in this case is “crystal clear.” Just as clear, he said, as the opinion Sheriff Leis himself wrote in 1974.

        “It's his own opinion,” Mr. Allen said. “In no way, shape or form has the law changed.”


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