Tuesday, May 23, 2000

Prosecutor says city blew case

Too much time has passed to file any charges

By Robert Anglen
The Cincinnati Enquirer

        The Hamilton County prosecutor says no charges can be filed against a Cincinnati developer accused of misspending nearly $1 million in taxpayer money because city officials waited too long to report it.

        Although investigators launched an investigation of Owning the Realty in 1994, no findings were reported until two months ago.

        Now Prosecutor Mike Allen says the clock has stopped ticking on state misdemeanor and felony charges and there is nothing he can do about it — even if a crime was committed.

        “Given the fact that the six-year statute of limitations in this matter expired on April 5, 2000, at the latest, the state is barred from proceeding with any potential felony prosecution in this matter,” Mr. Allen said in a scathing letter Monday to the city manager.

        “Had this investigation been turned over to the Cincinnati Police division in 1994 for review and investigation, the foreclosure of prosecution we are faced with today, in all likelihood, would not have become an issue,” he said.

        But City Manager John Shirey said Monday he disputes that interpretation and wants the city solicitor's office to review the possibility of filing charges before August.

        “We should not lose sight that if a crime was committed, then somebody should be held accountable for it,” he said. “Our determination is that there is still time remaining under the statute.”

        Mr. Shirey acknowledges the city could have handled the case better but said he is “disbelieving there isn't some legitimate way to go after” perpetrators.

        In its March report, the Cincinnati Office of Municipal Investigations alleged that Owning the Realty's executive director, Marvin Smith, and another employee misspent and mismanaged $972,000 in federal grant money from 1991 to 1994.

        An investigator said the grant money — disbursed through the Department of Neighborhood Services for low-income housing — was used for private gain.

        Mr. Smith has denied any wrongdoing, saying the city's investigation was botched and relied on incomplete records.

        Defending the report, former investigator James Johnson told City Council in March that he underestimated the time it would take to complete the investigation and that he continued working on it alone after transferring to the city solicitor's office.

        Also in March, Susan Utt, the neighborhood services supervisor in charge of over seeing Owning the Realty, was put on administrative leave.

        Officials allege she failed to monitor the development group and leaked details of the city's investigation to Mr. Smith.

        “This is sad and inexcusable,” Mayor Charlie Luken said Monday after reading the prosecutor's letter. “I can't conclude that somebody got away with a crime, but I can conclude that people can get away with a crime given this type of checks and balance system.”

        Some council members were equally upset.

        “There is no excuse for somebody to miss the statue of limitations,” said Councilman Pat DeWine. “I think that whoever in the administration that didn't take action needs to be held accountable.”

        Councilman Charlie Winburn says that someone is Mr. Shirey — and he wants the council to discuss this during the manager's upcoming performance review.

        Mr. Shirey, however, questioned why nobody was pointing the finger at federal housing officials. He said the person who complained about Mr. Smith to the city in 1994 also filed a report with the U.S. Department of Housing and Urban Development.

        “I don't hear any criticism of them,”' he said.

        Mr. Shirey asked why the prosecutor's office did not review the case after authorizing several subpoenas in 1995.

        Mr. Allen said his office authorizes hundreds of subpoenas every year to law enforcement agencies and would review a case only if one were brought forward.

        He said that didn't happen until two months ago, when city officials delivered nine boxes containing thousands of pages of documents along with a draft report on the investigation.

        From those documents, Mr. Allen said there was “possibly” evidence of wrongdoing, but the state can't pursue it.

        “I can't recall a time in the recent past that this has happened,” he said. “The statute of limitations was blown in this case.”


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