Filed under: Uncategorized — tkm December 30, 2005 @ 4:0 am

Information you won’t find in the PDT




Filed under: MARTING,Uncategorized — tkm December 21, 2005 @ 10:0 am

Below is an editorial written by Kevin Johnson and initially posted on another website. In this article Kevin gives detail and background surrounding Portsmouth and the Marting Fiasco.

This editorial was brought to my attention through an email from a friend and after reading the article decided the contents would be a fitting and noteworthy addition to the Portsmouth Citizens website and also for archiving purposes.

posted by tkm 12/21/05

    Are We Losing the Ability to Arrive at a

Win-Win Outcome?

    The Marting’s Debacle

A Lose-Lose Outcome

Sunday, December 18th, 2005 (RiverCities eZine)
by Kevin W. Johnson

The 1988 movie, “War Games,” starring Matthew Broderick, provides perhaps the best example of Lose-Lose game theory. Broderick portrays a computer geek who gains access to a secret military computer. He engages the ‘war games’ scenario on the computer, not knowing that the computer considers the ‘game’ to be real. The computer then goes through a series of nuclear confrontations between America and the Soviet Union trying to find at least one win-lose outcome (we win, they lose). The process creates a very real threat for World War III. It is not until the Broderick character succeeds in getting the computer to play Tic-Tac-Toe that the computer realizes that such scenarios are all lose-lose propositions.

It seems that, all too often, our society – via its business practices, politics, organized religion, international relations and national economy – engages in either win-lose or lose-lose games. And our City, unfortunately, is definitely engaged in a lose-lose process as regards the Marting’s building purchase.

Before looking at our national penchant for win-lose and lose-lose outcomes, it is important to first look at the definitions.

Win-win, win-lose, and lose-lose are game theory terms that refer to the possible outcomes of a game or dispute involving two sides, and more importantly, how each side perceives their outcome relative to their standing before the game.

Win-win outcomes occur when each side of a dispute feels they have won. Since both sides benefit from such a scenario, any resolutions to the conflict are likely to be accepted voluntarily. The process of integrative bargaining aims to achieve, through cooperation, win-win outcomes.

Win-lose situations result when only one side perceives the outcome as positive. Thus, win-lose outcomes are less likely to be accepted voluntarily. Distributive bargaining processes, based on a principle of competition between participants, tend to end in win-lose outcomes.

Lose-lose means that all parties end up being worse off. An example of this would be a budget-cutting negotiation in which all parties lose money. In some lose-lose situations, all parties understand that losses are unavoidable and that they will be evenly distributed. In such situations, lose-lose outcomes can be preferable to win-lose outcomes because the distribution is at least considered to be fair.

Some current examples of Win-Lose scenarios are: 1) the new bankruptcy laws (good for credit card companies and banks charging 23.9% interest, disastrous for the poor), 2) Congressional tax and budget cuts (good tax cuts for the rich, disastrous cuts in medical and student aid for the poor), 3) the Workman’s Compensation scandal in Columbus (good for attorneys being paid up to $600 per hour, disastrous for taxpayers)…

There is no better example of a lose-lose situation, in my opinion, than Iraq. If Afganistan is to serve as an example, a country we have made “free” and which has recently prosecuted and is seeking the death penalty for a newspaper editor who suggested that women should be equal in the eyes of the law, what can we expect of a fundamentalist Iraq? Could it be that, in the old mode of supporting ‘friendly’ dictatorships in Africa, Asia and Central and South America, we are now returning to a Cold War foreign policy of ignoring human rights in favor of friendly, repressive ‘democratic/theocratic’ dictatorships in the name of fighting terrorism and securing oil?

Locally, the best example of a lose-lose situation must be the City Council/ Marting’s debacle. It is no secret to anyone that members of City Council, in groups of two or three, met privately with members of the Marting’s Foundation to consummate the purchase of the Marting’s building in 2002, for a price of $2,000,000, even though the building appraised (via a qualified appraiser) at only $763,000. In addition, the City was offered the N&W Train Station for just $1.00 (plus architectural drawings worth thousands of dollars outlining how the station could be utilized as a City Hall). This offer was effectively nixed by one former Council member in particular… as the Marting’s deal, by all accounts, was already in the works. This historic train station, one of the few remaining of the N&W Line, was demolished for a new county jail.

Judge William Marshall of the Scioto County Common Pleas Court, issued an injunction against the City on November 23, 2004, ruling the City violated Ohio’s Open Meetings Law, that the sale was null and void, and that the City is required to award reasonable attorney’s fees. The City then passed an ordinance effectively accepting a new deal by which the Marting’s Foundation would return ‘most’ of the expended monies as the Marting’s building is restored (for an undetermined purpose, though the City plans to have it as the new City Hall).

Now, the City, on December 5, decided to appeal the entire verdict… yet again.

The Open Meetings Law specifically states, “…a series of closed ‘back-to-back’ meetings with less than a majority in attendance, where the same topics of public business are discussed, is an unlawful circumvention of the law.” State ex rel. Cincinnati Post v. Cincinnati (1996).

Additionally, “If an injunction is issued, the court also is required to order the public body to pay… court costs and reasonable attorney’s fees…”

The City will incur further costs, the Marting’s building – with a leaking roof – will continue to deteriorate, and the public will be faced with an uncertain future for redeveloping its downtown as the legal games continue… with a bottom line being a lose-lose result for all.

Is there a winner in all of this? Perhaps the only winner will be Oak Hill Bank (of Jackson County), which held the debt of the Marting’s Foundation. The losers are our local political structure and its reputation, the public and taxpayers, and an increasingly anemic downtown.

There is not, unfortunately, a win-win conclusion to this pathetic drama. The best we can arrive at is a win-lose, in that the City and its citizens win by getting this behind us, accepting the fact the Council violated the Open Meeting laws, paying reasonable fees to the Mollette’s, and moving on with doing something – anything – with the damned Marting’s Building. Unfortunately, we all have all lost something in the process… two million dollars, and our confidence in our City being able to do anything right.

Ora pro nobis. (For those whose Latin is rusty, “Pray for Us.”)

Kevin Johnson is the CFO of The Emporium at Portsmouth…
The Emporium at Portsmouth


Filed under: MARTING,Uncategorized — tkm December 15, 2005 @ 5:0 am

In my opinion Judge Marshall’s sound rulings on December 2, 2005 and September 15, 2005 regarding the purchase of the Marting Department store promotes and compels essential accountability needed within our local government. The actual purchase deliberations took place in meetings not open to the public and were not attended by a quorum of City Council members. As a result of this ruling Bob and I feel very confident that both the taxpayers and the legal system will deal with any future violations of the Sunshine Laws, the City Charter and/or the Ohio Revised Code, by our public officials, promptly and severely.

At this time I want to express a sincere thanks for the enormous outpouring of support Bob and I have received during the sequence of proceedings associated with our case concerning public officials’ unlawful actions. Taxpayers in our community are seeking accountability related to city officials actions and I am pleased we could play a major role in bringing a little Sunshine into our community and feel confident Judge Marshall’s ruling will discourage this kind of behavior from reoccurring in the future. We are also pleased we were instrumental in securing the return of monies to the city; monies that we feel were improperly collected and dispersed from the city’s 401 Dept Retirement Fund.

Here is the background on how this started. Initially, Bob and I attempted to resolve this issue through City Solicitor David Kuhn’s Office so as not to involve the courts; after all, the Solicitor’s position is to enforce compliance with the laws. But, at that time Mr. Kuhn decided not to perform the duties for which he was elected. If Mr. Kuhn had taken appropriate actions on our request there would have been no expense to the public in correcting the wrong committed against the taxpayers by City Council members and the Richard D. Marting Foundation and its president C. Clayton Johnson. The piece of the puzzle I didn’t realize at the time was this behavioral pattern had been going on since “the beginning of the World,” and our Mayor Jim Kalb has pardoned it with his signing of the 2005 Marting agreement.

After our unsuccessful attempt to get Mr. Kuhn to do his job, our next attempt at resolving the issue was to hire a local Portsmouth attorney, but we were advised by this attorney that due to the potential visibility and the political ramifications surrounding this injunction we should seek an attorney out-of-town; his recommendation was Mr. D. Joe Griffith.

Approximately one year ago Judge Marshall made his initial ruling, which made it possible for the return of $2 million dollars to the taxpayers of the City of Portsmouth. But due to the careless actions of Mayor Jim Kalb and several City Council members, we are currently only entitled to receive $1.4 million of the awarded $2 million, and additional adverse stipulations were placed on the return of our monies.

Even with the hard work of both Bob and me, together with our attorney and in harmony with the decision made by Judge Marshall in correcting the wrong committed against the taxpayers of Portsmouth, City Council members voted 5-0 to continue spending taxpayer dollars foolishly by appealing Judge Marshall’s ruling to the 4th Circuit Court of Appeals; Council has 30 days from the December 2nd ruling to Appeal the decision of Judge Marshall or not respond and accept his decision.

Mr. Kuhn advocates appealing Judge Marshall’s decision not only in response to attorney fees ($18,317.70 plus $500 civil forfeiture for a total of $18,817.70, which is $2,862 less than our actual payments made to our attorney), but also for the right of the City Council to hold Executive Sessions. What the City Council should do is place the issue of Executive Sessions on the ballot. Putting the issue on the ballot would provide taxpayers a voice in letting public officials know if they believe accountability exists amongst our City Council members. As far as overturning any past Executive Session decisions, a two years statute of limitations exists for filing an injunction involving violations of the Sunshine Laws. The only occurrence I can recall within the legal two-year filing time frame occurred during the appointment of the 4th Ward Council position. The meeting minutes for July 26, 2004 document Council adjourning into Executive Session and on their return took roll call but made not additions to the legislative portion of the meeting. At no time during the Legislative portion of the Regular Session of Council did any deliberation or vote regarding the appointment of the 4th Ward Council member take place. The next mention of the appointment occurred during the President’s report, which stated Gerald Albright had been appointed to the 4th Ward Council position. This is an obvious violation of the “Sunshine Laws” whether Executive Sessions are legal or NOT. With NO discussion being held in public, all indications point to deliberations and vote having occurred during the Executive Session; Therefore, Gerald Albright is not legally a member of Council.

The majority of City Taxpayers want the criminal acts by some and negligent actions by others stopped; the majority of city taxpayers want the loss of objectivity by all city officials recognized and accountability returned to our city. Bob and I are glad to have participated as forerunners in returning some accountability to our city government and hope to continue working with others in the future to continue the tasks at hand.

We are still convinced the time spent and expenses lost for holding our City Government accountability was and still is vital for the future of our city.

posted by tkm


Filed under: MARTING,Uncategorized — tkm December 9, 2005 @ 16:0 pm

posted on Sentinel 11-9-05

Judge Marshall Sides with Kuhn & Council
City of Portsmouth Ordered to Pay Most of Mollettes’ Attorney Fees

Judge William Marshall’s final ruling in Teresa and Bob Mollette’s legal wrangle with Portsmouth City Council over their scandalous purchase of the Martings Department Store properties is now in. Marshall reiterated his early finding “that city council was intending to circumvent the Sunshine Law and therefore they knew that meetings in groups of three and having meetings not open to the public was in violation of the City Charter.” Having found in favor of the Mollettes and the people of Portsmouth, Marshall ruled that the Mollettes were entitled to have their attorney fees paid by City Council.

Teresa and Bob Mollette originally sought injunctive relief to bring an end to City Council’s illegal closed door meetings, which were central to carrying out the original Martings purchase. The Mollettes sought to have Judge Marshall nullify the purchase that was negotiated during illegal secret meetings and force the Martings Foundation to return $2 million in taxpayer money that the Foundation gained through the illegal sale. Judge Marshall agreed with the Mollettes and their lawyer, Joe Griffith. The sale was nullified and secret, executive sessions of City Council were to be ended.

The Mollettes went to court on behalf of Portsmouth citizens who had been virtually robbed in a back room deal; they never did nor will they ever have any personal financial gain as a result of their court action. If not for the Mollettes, the Richard D. Martings Foundation would have walked away with nearly $2 million dollars and dumped the Martings building on the people of Portsmouth. Clay Johnson and the Martings lawyers never would have offered to return $1.4 million, plus the properties, to the city.

Although Judge Marshall originally ruled against City Council and found in favor of the Mollettes, he has now balked at ensuring complete justice for the people of Portsmouth. In his final ruling, issued earlier this December, Marshall sided with City Solicitor David Kuhn who had challenged the Mollettes’ fees, claiming originally that they were not entitled to the money at all, and then that the Mollettes’ lawyer had charged outrageous fees for his services.

During the most recent court testimony, local attorneys Dan Ruggiero and Steve Mowery stated that $150 per hour was the typical and reasonable rate of lawyers practicing in Scioto county. However, under questioning by Judge Marshall, Ruggiero acknowledged that Clay Johnson, the Martings Foundation’s lawyer, charged $200 an hour for his services. At the same hearing Teresa Mollette testified that she had originally approached Mr. Ruggiero, who advised Ms. Mollette to seek the services of an attorney from outside of Scioto county. The Mollettes then hired Joe Griffith, whose hourly rate was around $200. It was not the number of hours claimed by Griffith, but rather his hourly rate that Marshall found to be unreasonable.

In spite of the above testimony, Judge Marshall ordered the city to pay the Mollettes’ legal fees as if Griffith had only charged $150 per hour. Marshall’s ruling has left the Mollettes more than $5,000 short of their total legal expenses.

Marshall’s ruling is particularly insulting to the people of Portsmouth considering the fact that some of Clay Johnson’s legal services provided to the Martings Brothers Company were apparently paid out of the $2 million in taxpayer money that the Foundation had illegally obtained.

As the official minutesof the Martings Foundation Board of Trustees indicate, a Federal Home Loan Note (originally purchased with Portsmouth city taxpayer money) worth over $500,000 was liquidated in December 2002 “in order to provide cash for settlement of debts of The Marting Brothers Company.” The Board then specifically voted to distribute $10,000 of that money to pay for “Legal and Accounting Fees and Miscellaneous Expenditures.” The remaining $1.5 million, according to the minutes, was to be used to gain “an equity position in the Portsmouth City Center Shopping Center.” In other words, the $1.5 million of taxpayer money was to go to Neal Hatcher, who Mayor Jim Kalb recently described as the “middleman” in the whole Martings-City Building-Shopping Center Scheme.

If Clay Johnson got paid $200 an hour with taxpayer money, which Marshall ruled had been illegally obtained, is it really that unreasonable for a top-quality out-of-town lawyer like Joe Griffith to charge the Mollettes $200 an hour to successfully defend the citizens rights under the Ohio Revised Code and Portmouth’s City Charter?

The Shawnee Sentinel calls on City Council to do the right thing and pay the full amount of the Mollettes’ legal fees. They can take Marshall’s ruling as the required minimum amount that must be paid. It is up to Council to pass an ordinance authorizing the payment of Joe Griffith’s fees; Council has it in their power to go beyond Marshall’s order and reimburse the Mollettes for the total amount billed by Mr. Griffith.

~ Posted by Heidi Johnson, December 9, 2005 at 12:11AM