The text of Councilman Pat DeWine's letter to U.S. Attorney General John Ashcroft.

November 19, 2002

Mr. John Ashcroft

Attorney General

U.S. Department of Justice

950 Pennsylvania Avenue, NW

Washington, DC 20530-0001

Dear Attorney General Ashcroft:

I write in regard to the November 14, 2002, letter that the City of Cincinnati received from Robert N. Driscoll, Deputy Assistant Attorney General in the Civil Rights Division. In that letter, Mr. Driscoll criticizes public statements made by City of Cincinnati officials relating to the Monitor selected under the Memorandum of Agreement ("MOA") between the Department of Justice and the City as well as the Collaborative Agreement. Mr. Driscoll suggests that such public statements, "undermine successful implementation of the MOA, and have the potential to place the City in breach of the MOA."

I write to you because Mr. Driscoll's letter raises concern on a number of levels. First, I am disturbed that Mr. Driscoll would suggest that public officials should not exercise their First Amendment rights to speak on matters of public concern. Second, I want to make absolutely clear the City's actions in regard to the monitor did not violate the agreement. Third, I would hope that the Department of Justice understands the importance of having in place a Monitor who can inspire public confidence, who respects the taxpayers and who understands his role. I am disappointed that Mr. Driscoll's letter seems to suggest otherwise.

Background on Dr. Kalmanoff

By way of background, Dr. Alan Kalmanoff was appointed as Monitor by the federal court. Dr. Kalmanoff immediately embroiled himself in controversy through self-initiated public actions and statements. A few days into the job, he gave an interview to the Cincinnati Enquirer in which he stated that he expected his services would cost $7 million dollars and would exceed well beyond the five-year term provided for in the agreement. Dr. Kalmanoff's statements caused a great deal of concern because the Collaborative Agreement specifically provided for a $5 million dollar overall cost to the City, including not only the cost of the Monitor, but also the cost of implementing civilian review and implementing the extensive Community Problem Oriented Policing ("CPOP") program. The CPOP program promises both to improve police-community relations and public safety. As an elected official who is very concerned about providing safer neighborhoods to all of our citizens, I believe it is critical that we implement portions of the agreement that make our city safer. Dr. Kalmanoff's public comments caused great concern because the expenditure rate suggested by Dr. Kalmanoff would have left no money to implement other parts of the agreement, particularly those that improve public safety.

Dr. Kalmanoff subsequently appeared before City Council's Law Committee Hearing. A number of individuals expressed concern that Dr. Kalmanoff was not forthright and refused to provide straightforward answers to even the most basic questions. (If there is any question that Dr. Kalmanoff's performance at that meeting undermined public confidence in his abilities, I will be happy to provide a videotape for your Department's review.)

At the Law Committee meeting, Dr. Kalmanoff stated on numerous occasions that his services would be provided pursuant to the terms of a written contract with the City as provided for in the Collaborative Agreement. While the parties were in the process of negotiating this contract, Dr. Kalmanoff submitted his first bill to the City of Cincinnati. The bill provoked widespread public outrage. Dr. Kalmanoff billed the City over $55,000 for 18 days, including charges for such things as preparing for travel, attending banquets and other tasks unrelated to his duties under the Collaborative Agreement.

Actions by Cincinnati Officials

Following Dr. Kalmanoff's submission of his bill, City Council unanimously passed a motion calling for the City to take the steps provided for in the Collaborative Agreement to remove Dr. Kalmanoff as Monitor. Undoubtedly, under the Collaborative Agreement the City both had the ability to appeal the Judge's order appointing Dr. Kalmanoff, as well as to seek his dismissal pursuant to the terms of the agreement. The motion specifically called for, "the City to take all necessary steps to challenge the appointment of Dr. Kalmanoff as Independent Monitor."

Cincinnati officials were publicly critical of Dr. Kalmanoff. Council is a public body; it acts in public; and its statements are part of the public record. I know you share my belief that such public comment is an essential part of a democracy.

Mr. Driscoll's Specific Comment

I want to respond specifically to a number of comments made by Mr. Driscoll in his letter that I believe raise concern. First, Mr. Driscoll states that "regardless of the merits of the criticism of Dr. Kalmanoff, such public statements [by City officials] undermine successful implementation of the MOA, and have the potential to place the City in breach of the MOA." I strongly disagree. Cincinnati, like the rest of the United States, is a democracy. Elected officials have the right - even the duty - to criticize and to speak out on issues of public concern, including the performance of the Monitor. Despite Mr. Driscoll's comments to the contrary, there is nothing in the MOA that takes away that basic First Amendment right.

In the fourth paragraph of his letter, Mr. Driscoll suggests that the City has acted, or threatened to act, to "unilaterally alter the role of the Independent Monitor." Mr. Driscoll does not identify any such actions by the City. The motion passed by Council specifically called for the City to take action to challenge the Monitor under the agreements and as part of the judicial process. City officials have not made any such statements, or taken such action, and if Mr. Driscoll wishes to contend otherwise, I ask that he specifically identify the statements of which he is speaking.

Finally, in the last paragraph, Mr. Driscoll warns that "in the future concerns regarding the activities of the Independent Monitor must be raised in a constructive fashion, and resolved between the Independent Monitor, the United States, the City, and the other parties to the Collaborative Agreement." I have every confidence that the City will follow the terms of the Collaborative Agreement in regard to the selection and hiring of a new Monitor. This does not mean however, that the City will cease to represent its interests or that elected officials will not carry out their obligation to speak out about issues of public concern.

I also want to express my concern about the tone of Mr. Driscoll's letter and about the position that he has taken. In order for the Collaborative Agreement to work it is essential that the agreement have buy in from all members of the community. Dr. Kalmanoff's disregard for the taxpayers, his lack of forthrightness, and his refusal to follow the terms of the Collaborative Agreement threatened the credibility and the long-term viability of the Collaborative Agreement. Quite simply, the agreement would not have worked had Dr. Kalmanoff remained as Monitor. By speaking out, the City was able to achieve a result that served the citizens and taxpayers of the City, as well as helped maintained the long-term viability of the agreement. I am disappointed that the Department of Justice's representative does not seem to understand this basic point.

I believe we have a real opportunity in Cincinnati to improve police-community relations and at the same time build a safer city. I believe that the Collaborative Agreement and the MOA can play important roles in that regard and look forward to working with the Department of Justice to fully implement these agreements.

Please understand that these comments are my thoughts alone, and do not necessarily represent the opinions of any member of City Council other than myself.

Sincerely,
Pat DeWine

cc:Senator Mike DeWine, Senator George Voinovich, U.S. Representative Steve Chabot, U.S. Representative Rob Portman, Mayor and Members of Council