State officials used a flawed investigation report to force Attorney General Marc Dann from office
Ohio Attorney General Marc Dann was driven from office in May 2008 based on a report written by two lawyers in his office. Dann had asked the lawyers to investigate sexual-harassment complaints filed by two female employees against the office’s director of general services, Anthony Gutierrez.
by Joseph C. Sommer
July 9, 2010
The lawyers, executive assistant attorney general Ben Espy and senior assistant attorney general Julie Pfeiffer, collected evidence and interviewed employees, managers, and the attorney general. Then they issued a scathing report on the office.
They said Gutierrez had subjected the complainants, Vanessa Stout and Cindy Stankoski, to a hostile environment of sexual harassment in the general services section. The report indicated the women were innocent victims of boorish and lecherous behavior.
The report also suggested that Gutierrez had driven and crashed state vehicles while drunk, carried a gun in the vehicles, and frightened employees by telling them he was associated with the Mafia.
The report further claimed that administrators in the attorney general’s office had failed to properly respond when informed of Gutierrez’s alleged improper conduct. It implied they had mismanaged the office, allowed a sexually hostile environment, and tried to cover up wrongdoing. It accused Dann of showing bad judgment and blamed some of the office’s problems on cronyism.
Almost immediately after the Ohio media trumpeted those inflammatory charges across the state, Dann’s fellow Democratic state officials called for his resignation or impeachment. Then they applied strong-arm tactics and demagoguery to pressure him from office.
Specifically, Democrats in the Ohio House of Representatives introduced an impeachment resolution based on the report. The governor’s office offered jobs to Dann’s top aides to have them abandon him and urge him to resign. The Ohio Democratic Party revoked its endorsement of Dann’s 2006 campaign for attorney general and expelled him from the party.
Additionally, the legislature and governor authorized the Ohio inspector general to investigate the attorney general’s office. The inspector general’s agents ransacked the office in a raid the media described as “shock and awe.” The agents seized computers, other electronic equipment, and what the inspector general called “a lot” of documents. Dann himself was stripped of his computer, BlackBerry, and state vehicle.
By isolating Dann, smearing his character, and crippling his ability to function as attorney general, state officials coerced him to resign. Tragically, their acts were based on an internal report that turned out to be riddled with false and misleading statements.
Each of the report’s misstatements made Dann’s administration look worse – never better – than it should have. Although the authors of the report worked in Dann’s office, they seemingly wanted to destroy his career as a public official. Given the information they had to work with, they could not have written a report better calculated to achieve that result.
An accurate report would not have led to Dann’s removal from office. The following are the report’s most significant misstatements that caused that wrongheaded and unjust act.
False or Misleading Allegation No. 1: “After complaints were made by Ms. Stankoski and Ms. Stout on March 6, 2008 and March 7, 2008,” the chief of policy and administration and the chief operating officer “had the obligation to separate the complainant and Mr. Gutierrez pending the resolution of the complaints.”
The complaints were filed after Stout had been transferred from general services to another section of the attorney general’s office. She was in a different building and under a different director, and thus was already separated from Gutierrez.
But Stankoski was still working in general services, and Gutierrez continued as director of the section. The report used those circumstances to make the attorney general’s office appear to have callously and wrongfully left Stankoski in a sexually hostile environment. But that was untrue.
During the investigation, attorney Espy told the chief operating officer that “when you have sexual harassment allegations, the urgency of trying to separate the individuals is paramount.” He and his co-investigator took the same position in their report. But they had been given different information in their interview of the deputy director of human resources.
The deputy previously had about seven years’ experience as EEO director for the attorney general’s office. In that capacity, her foremost responsibility had been overseeing the office’s EEO program. Her duties had also included conducting the office’s sexual-harassment training classes and handling EEO investigations.
When the investigators asked her if an employer has a duty to separate an accuser and accused after sexual allegations have been made, she responded, “Not always. Just depends on the circumstances.” In view of her testimony, Espy’s claim about a paramount duty to separate the parties was false. He should have examined the circumstances to see if a need existed to separate them.
Under the circumstances of this case, a reasonable decision was made to not remove Gutierrez from general services. In regard to the three specific incidents of sexual harassment that Stankoski alleged, each had occurred outside of the office and over four months earlier, in September and October 2007. She didn’t file a complaint back then but instead waited until March 2008, when she got mad at Gutierrez for transferring her friend Stout out of his section.
Moreover, neither Stankoski nor Stout alleged that Gutierrez had harassed them since about the beginning of 2008. This meant that even according to the women’s allegations, Gutierrez had been behaving himself for over a month, and possibly over two months, before the complaints were filed. In fact, Stankoski indicated that Gutierrez had been leaving her alone after Stout began working in the section over three months earlier, on November 26, 2007.
When Stankoski finally did file her complaint, she told the deputy director of human resources she didn’t need to be moved because Gutierrez wasn’t bothering her at the time. Still, the deputy worked with general services to have Stankoski’s desk moved so she wouldn’t be looking at Gutierrez. But Stankoski decided that wasn’t necessary either.
Clearly, there was no “paramount” need to separate Gutierrez from Stankoski after she filed her complaint. She didn’t allege he was harassing her then. She didn’t even allege he had harassed her within at least the last month, and possibly within the last three months. Her specific allegations of harassment involved incidents that allegedly occurred away from the office and over four months earlier.
To ensure that Stankoski remained free from harassment after the complaints were filed, managers in the attorney general’s office checked with her to see if Gutierrez was bothering her. She repeatedly told them he wasn’t. Stankoski was instructed to let them know “if he even looks at you cross-eyed.” Additionally, the chief operating officer told the deputy director of human resources to do whatever was needed to make Stankoski comfortable. The chief instructed the human resources director to inform the women that they were safe in their jobs and should fear no retaliation.
Obviously, the situation was being monitored to put the women at ease and immediately protect Stankoski if there was any indication Gutierrez was mistreating her. But the need to take such action never arose.
The results of the decision to not separate Gutierrez and Stankoski proved that it was reasonable. No harm resulted. Neither Stankoski nor anyone else alleged that Gutierrez harassed an employee after the complaints were filed.
Nevertheless, the report lambasted the attorney general’s office for not immediately separating Gutierrez from Stankoski. The investigators preferred that Gutierrez be needlessly punished before his side of the story had been heard. Their position was irrational and unfair.
False or Misleading Allegation No. 2: The chief of policy and administration “failed to immediately and properly investigate allegations of harassment” after Stout and Stankoski made their complaints.
The report criticized the fact that the women’s complaints weren’t immediately referred to the attorney general’s EEO officer for an investigation. Although the office’s written policy said such complaints ‘should” (not “must”) be handled that way, the women’s complaints weren’t referred to the EEO officer until March 27, which was about 14 workdays after the women contacted the human resources section. The investigators and media portrayed this delay as evidence of a reluctance to investigate and a cover-up.
The report and media neglected to mention, however, that the women themselves were the reason the complaints weren’t immediately referred to the EEO officer. When Stout first contacted the human resources section on March 6, she was told to present her concerns to the EEO officer. But she responded, “I will not do that.” And Stankoski seemed even more opposed to having the complaints go to the EEO officer.
When the investigators asked the deputy director of human resources why the complaints weren’t immediately referred to the EEO officer, she explained that the complainants didn’t want that to happen. The women alleged that the EEO officer was too close to members of the executive staff. And Stankoski claimed to not trust her, even though she didn’t know her. The director of human resources therefore told the EEO officer that the women didn’t want her to investigate.
After Stout refused to see the EEO officer, she was told to contact the deputy director of human resources. Later that day, both the director and deputy director of human resources met with her about her issue. The director told Stout to come to her anytime. The same two managers met with Stankoski the next day.
At that point, the human resources director thought she and her deputy would be investigating the complaints. But the chief of policy and administration and the chief operating officer decided the director shouldn’t be involved in the investigation. Because she had previously made negative comments about Gutierrez, she was not considered impartial.
As for the reason she couldn’t investigate, the director explained to the investigators: “I was told that I was perceived as not neutral, that I was out to get Tony. And I understood why I could not be the one to investigate. I totally understood that.” The disqualification of the director meant her deputy was also disqualified.
With the EEO officer and the director and deputy director of human resources apparently unable to investigate, the chief of policy and administration and the chief operating officer had several meetings about how to proceed. One or more of the meetings included the first assistant attorney general, who also talked with the human resources director about the matter.
The issue at the meetings was how to properly investigate after the women had refused to see the EEO officer. But there’s nothing to indicate anyone wanted to stop an investigation from occurring. The first assistant attorney general later told the inspector general’s agents that the attorney general expressed no opposition to an investigation and directed him to “go ahead” and “do what you gotta do” to have the complaints properly investigated.
Adding to the procedural uncertainty was a dispute about whether the women’s oral complaints were sufficient or needed to be put in writing. The policies of the attorney general’s office had been changed in January 2008 to no longer require EEO complaints to be in writing. Instead, the complaints were “encouraged” to be in writing (whatever that meant). But the EEO officer subsequently learned that such complaints were required by law to be in writing, and the policy would have to be changed.
That legal issue was likely a reason the first assistant attorney general was brought into the discussions about how to proceed. Unfortunately, he was out of the office from March 21 until March 31. His absence contributed to a delay in starting the investigation.
Another factor contributing to the delay was that the women’s complaints weren’t the only issue the executive staff had to deal with. The chief operating officer said she and the chief of policy and administration had “all of these other emergencies on our plate, these other meetings out of town. . . . Did we drop everything we were doing to work on this issue? No, we didn’t. . . . He’s racing off to 40 meetings. I’m racing off to 40 meetings. And it was like this was not the only thing in our world at that point.”
Ultimately, a decision was made that the complaints needed to be in writing and referred to the EEO officer for an investigation. On March 20, the chief operating officer told the director of human resources to inform the women that they could file formal complaints with the EEO officer. That was only six workdays after the chief operating officer had learned about the complaints, and she was out of the office for two of those days.
In accordance with the chief’s instructions, the director of human resources informed Stankoski and Stout on March 20 that if they put their complaints in writing, an investigation would be launched by the EEO officer.
Probably because of their reluctance to deal with the EEO officer, Stankoski and Stout caused a further delay in the investigation’s start by not contacting the EEO officer for a week. On March 27, the women were again told they could file written complaints with the EEO officer. On that same date, the EEO officer contacted them, asked for an e-mail explanation of their issues, and set up a time to meet with them.
Nevertheless, the women continued to be in no hurry to have the EEO officer investigate. They didn’t provide her with written complaints until March 31.
Because of the complications that arose from the women’s initial refusal to see the EEO officer and their subsequent foot-dragging in contacting her, 14 workdays was not an unreasonable delay in beginning the investigation.
Further, the women almost immediately sabotaged the EEO officer’s investigation by violating her instructions about the confidentiality of EEO investigations. A few days after they met with her, details of the meeting appeared in a newspaper article. Because the EEO officer thought the women had misquoted her in the article, she felt she couldn’t be impartial and had to withdraw from the investigation. Shortly thereafter, the attorney general appointed the two attorneys to investigate the complaints.
In regard to the delay in starting the investigation, the key point is that there would have been no delay if the women themselves had not objected to meeting with the EEO officer when they first contacted the human resources section. The EEO officer would have immediately begun an investigation at that time.
But the report said nothing about the women’s initial refusal to see the EEO officer, the managers’ attempts to accommodate them by trying to find an alternative means of investigating the complaints, the women’s subsequent delays in meeting with the EEO officer, or their undermining of her investigation. Instead, the report implied that the attorney general’s office had resisted opening an investigation and tried to orchestrate a cover-up. And the media ran with that false version of events.
False or Misleading Allegation No. 3: “Gutierrez did not invite any of the male employees to socialize after hours.”
This allegation was apparently included in the report to depict Gutierrez as prowling for female employees instead of seeking social companionship generally. But the investigators had to ignore some of their findings to create that impression.
A male facilities manager in general services told them that Gutierrez “was pretty social with everyone,” not just with the women. He testified that Gutierrez had offered him “a couple of times maybe to go out and meet up or get a drink or something like that.”
As for his response to Gutierrez’s offers, the manager explained: “I had planned on going out a couple times but something else had happened or something had come up, you know. It wasn’t that I wasn’t going to do it.”
The manager’s testimony shows that the report was patently false in saying Gutierrez “did not invite any of the male employees to socialize after hours.”
Another male facilities manager in general services told the investigators about going with Gutierrez after work to watch Gutierrez’s son play baseball. He also said that after the game, they all went out for pizza. Because the manager had gone to see Gutierrez’s son play, Gutierrez was probably the one to extend the invitation.
But the investigators didn’t bother to look further into that issue before writing their report to falsely paint Gutierrez as preying on females and having no interest in socializing with male employees.
False or Misleading Allegation No. 4: The scope of the investigation included not only the sexual-harassment complaints against Gutierrez but “also was extended to any other policy violations that were uncovered as a result of or rose out of the Gutierrez investigation.”
By saying the investigation’s scope included any policy violations uncovered, and by not finding that the complainants had violated office policy, the report portrayed them as innocent of wrongdoing. Nothing could be further from the truth.
The investigation revealed that Stout had lied on her application for employment with the attorney general’s office and during her employment interview. On the application, she intentionally omitted three theft convictions in her background and falsely asserted she had graduated from high school when she actually had completed the eleventh grade and obtained a GED. During the interview, she untruthfully said she was proficient at using computer programs such as Word, PowerPoint, and Excel.
Although Stout committed multiple frauds on the state government to obtain her job, the report said nothing about those matters, which obviously warranted her firing.
And as mentioned above, the women violated the office’s policy that requires sexual-harassment complaints to remain confidential to the extent possible. Their breach of confidentiality compromised the integrity of the EEO officer’s investigation to the extent that she had to withdraw from conducting it.
Moreover, the report said the policies of the attorney general’s office prohibit “profanity, practical and off color jokes.” The investigation revealed that Stout and Stankoski violated those policies. In the office, both used profanity and played pranks on Gutierrez. The investigators even obtained e-mails in which Stankoski sought suggestions from coworkers for practical jokes to play on him.
Also according to the report, the office’s policies state that sexual harassment can include “uninvited letters, telephone calls or materials of a sexual nature.” These policies were likely violated by the women too. Stout sent text messages that she said were “jokes and stuff,” and a coworker described as “dirty.” Gutierrez said one of Stout’s Christmastime texts was an “explicit joke” involving Santa Clause. Another coworker testified that Stankoski sent her text messages that could be “dirty in nature, or of sexual nature.”
Further, by violating such office policies, the women were acting in a manner inconsistent with being in a sexually hostile environment. They also acted in other ways that exposed their complaints to be fabricated.
As explained in detail in a previous article about the complaints, sexually harassed women do not go into their harasser’s office and shut the door behind them, socialize and have lunch with him in his office, joke with him, frequently take smoke breaks with him, flirt with him, come up with the idea of having a birthday party for him, plan and organize the party, act in a juvenile manner in his presence in the office, or shoot pool with him in a bar. Stankoski and Stout behaved in all those ways with Gutierrez.
A sexually harassed woman also does not pose for risqué photos in which she flirtatiously holds her harasser’s office-issued badge at her bosom, make a Boss’s Day card for him, refer a girlfriend for employment in his office, go out for drinks with him, accompany him to dinner, go to his apartment to drink and have pizza, or get so drunk with him that she slurs her words, gets sick, and blacks out at the apartment. Stankoski did all those things with Gutierrez.
A woman working in a sexually hostile environment also does not repeatedly visit her harasser’s apartment to drink and socialize with him, smoke cigarettes and talk for hours with him outside the apartment, throw “the F bomb” while complaining to him in his office about her treatment by a security guard, meet him at a bar to let him buy her a birthday drink, drink with him in bars on other occasions, complain to him about her boyfriend becoming jealous of her sex toy and breaking it, or invite him to party, have Bacardi, and be her “bitch” for New Year’s. Stout did all those things with Gutierrez.
No wonder one of the women’s female coworkers told the investigators the two were “partyers” and their complaints “bogus.” But her statements were left out of the report. So were the statements of a female coworker who questioned the women’s motives and indicated the two might be disgruntled employees with an ax to grind.
The report should have found that Stankoski and Stout were not only guilty of unprofessional conduct and multiple violations of office policy, but also acted in many other ways that were inconsistent with being victims of sexual harassment. Based on those findings, the report should have recommended that Stout be fired and Stankoski be at least disciplined. But the women’s wrongdoing was whitewashed to make them look like innocent victims.
False or Misleading Allegation No. 5: “Mr. Gutierrez, with the assistance of [the chief of policy and administration], caused the transfer of Ms. Stout from the General Services Section to the IT Section without a justifiable reason.”
This allegation continued the report’s nonsensical theme that the complainants were innocent victims. The attorney general’s office had every right to not only transfer Stout but fire her. As the chief operating officer told the investigators, no policy was violated by the transfer.
At about the beginning of 2008, Stout sent Gutierrez and others a text message saying “it’s Happy New Year’s, let’s party, let’s have Bacardi and you’re my bitch for New Year’s.”
Gutierrez’s wife saw the salacious invitation to her husband and was very upset by it. So was her good friend the attorney general’s wife. As a result, steps were soon taken to transfer Stout to another section, where she would be working in a different building and under a different director.
Stout confided to a coworker that she had been transferred because of the text message. Gutierrez also indicated the text message was the reason for the transfer.
But Stout changed her story when she made the sexual-harassment allegations. In an attempt to be placed back in Gutierrez’s section, she claimed she had been transferred because of refusing his alleged sexual advances.
Clearly, after Stout had invited her section’s director – who was married with children – to drink, party, and be her “bitch” for New Year’s, the attorney general’s office was justified in transferring her to a different section. The action was reasonably intended to prevent her from further disrupting the lives of the director and his family.
As an employee-at-will who had been on the job only about six weeks, Stout could have been fired on the spot for sending the inappropriate message and causing the resulting problems. At many organizations she would have been. And the two attorney investigators were aware that additional grounds for firing her were that she had lied on her employment application and during her job interview.
Nevertheless, the investigators said the attorney general’s office had no justifiable reason for merely transferring Stout, let alone firing her. This bizarre position raises serious questions about their qualifications for judging management practices.
False or Misleading Allegation No. 6: “During the course of his employment, Mr. Gutierrez repeatedly drove a state vehicle after consuming alcohol. . . . During the past year, he had at least four state vehicles assigned to him. It has been alleged that he has crashed state motor vehicles while being under the influence.”
The report implied that Gutierrez had been assigned at least four state vehicles because of repeatedly crashing them while driving drunk. But the investigators knew that wasn’t the reason he had been assigned multiple vehicles.
Probably because his section had offices in various parts of Ohio, Gutierrez was provided a state vehicle. On some occasions after work, he stopped at restaurants or bars where he consumed alcohol. He had that in common with many workers in both the public and private sectors.
Regardless of whether Gutierrez repeatedly drove a state vehicle after drinking, the relevant issue was whether he was driving under the influence. According to the report, the “Policies and Procedure Manual clearly states that when using a state vehicle, ‘Driving under the influence of alcohol . . . is prohibited.’”
The office’s policy, therefore, did not forbid driving a state vehicle after consuming alcohol but only prohibited driving under the influence. Gutierrez was never arrested or pulled over for driving a state vehicle while intoxicated.
As for Gutierrez being assigned four vehicles, the deputy director of general services explained the reasons to the investigators. In regard to the first vehicle, the deputy testified that because the attorney general’s office needed a vehicle to be its “Sunshine Law Express,” Gutierrez gave up his so that it could be used for that purpose.
The deputy also testified that after Gutierrez obtained his second vehicle, the attorney general’s organized crime investigators needed a vehicle of that nature. So Gutierrez allowed them to have his.
The deputy further related that about two weeks after Gutierrez received his third vehicle, an agent in the bureau of criminal investigations destroyed a state vehicle in an accident. Gutierrez therefore gave the bureau his as a replacement.
Gutierrez provided the investigators the same account but in shorter form. When asked why he had been assigned four vehicles, he said, “My vehicles . . . I was driving were needed for something else and I gave them up for those reasons.”
Gutierrez did cause minor damage to a state vehicle. He told the investigators that in a grocery-store parking lot, he misjudged the size of a light post’s cement foundation and scraped it. He immediately reported the damage to the chief of policy and administration. The vehicle was still drivable and continued to be used.
A few days later, an intern in Gutierrez’s section seriously damaged the same vehicle by hitting a column in a state parking lot. Only at that point did the vehicle need to be sent to a garage for repairs.
Gutierrez also allegedly backed a state vehicle into a car owned by Stout’s father, who lived with her in an apartment across the street from Gutierrez’s residence. Stout claimed that Gutierrez was intoxicated when this accident supposedly occurred, even though she didn’t witness it and thus had no way of knowing. And she apparently gave two different versions of how she learned of the alleged incident.
If the accident actually happened, it was extremely minor. Stout told the investigators that because her father’s car had only a little dent and scratch, no insurance claim was pursued. And maintenance records show that Gutierrez did not bring his car to a state garage for repairs stemming from this alleged accident. He wasn’t aware of bumping the father’s car.
Stankoski provided the only other evidence that Gutierrez damaged a state vehicle while driving drunk, but she didn’t witness the alleged incident. She claimed that one morning at work, Gutierrez told her he had gotten extremely drunk the previous evening, fallen asleep at the wheel, and awakened when his vehicle hit a guardrail. Gutierrez denied to investigators he had said those things or damaged the vehicle in that manner.
In any event, the report was highly misleading about why Gutierrez had been assigned multiple vehicles. He performed as a team player by giving up three vehicles when they were needed for other purposes in the attorney general’s office. But the report twisted those unselfish acts to falsely imply he had repeatedly crashed state vehicles while driving drunk.
False or Misleading Allegation No. 7: Gutierrez “created an atmosphere in the General Services Section that left the employees fearful by constantly reminding them of . . . his family’s involvement with the Mafia.” Besides Stankoski, “other employees also witnessed Gutierrez discuss his association with the Mafia.”
Those statements were not supported by testimony the employees of general services gave to the investigators. And there was no credible basis for concluding that Gutierrez was associated with the Mafia.
The section’s deputy director testified he could not recall Gutierrez talking about having ties to the Mafia. A facilities manager said he never heard Gutierrez talk about any mob connections. A telecommunications assistant said the same.
The fixed-asset manager never heard of Gutierrez talking about Mafia ties. As for whether the general services employees were afraid of Gutierrez, she said, “I wouldn’t say that anybody was personally afraid of Tony. . . . I can’t imagine being personally afraid of him.” When asked whether he ever made her afraid, she answered, “Absolutely not.”
A general services assistant testified she never heard Gutierrez talk about being associated with the Mafia. She also was unaware of anyone in the section being afraid of Gutierrez or nervous when he was around.
The administrative assistant didn’t describe a section in fear. She told the investigators the atmosphere in general services was “lighthearted.” She further described the office as “jovial,” “exciting,” “happy-go-lucky,” “business oriented,” and “business minded.”
The telecommunications coordinator said he didn’t have the impression that people in general services were afraid of Gutierrez. The human resources director said she didn’t sense that Stout was afraid of Gutierrez. And the attorney general’s director of travel services testified she never felt uncomfortable with Gutierrez.
Those employees would have heard if Gutierrez had been “constantly reminding” the general services personnel of “his family’s involvement with the Mafia.” And they would have understood there might be reason to fear him. But their testimony shows that the report was false regarding these matters.
When the investigators asked Gutierrez about the Mafia, he denied Stankoski’s claim that he had told her his family was associated with it. He explained that once when they were talking about their families, he mentioned there were rumors his grandfather (on his mother’s side) might have been involved with the Mafia, “but there’s nothing substantiated.”
A couple of other employees testified that Gutierrez had indicated the same to them. For example, a telecommunications assistant testified that although he had heard Gutierrez mention something about his grandfather possibly being involved with the Mafia, “I never heard him talk about himself being connected or anything.”
Stankoski and Stout were the only ones who claimed they heard Gutierrez speak about being involved with the Mafia. And Stout said she didn’t believe he really was.
Moreover, the women were very vague in making these allegations. When the investigators asked Stankoski for more information, she said “he didn’t get into details. I mean, he talked about his family history. . . .” She later told them her understanding was that “the Gutierrez name or he is associated with” the Mafia, thus indicating that even she didn’t hear him say he was personally involved with it.
It’s not surprising that Gutierrez didn’t give details to Stankoski or anyone else. Because his grandfather died when his mother was only three years old, Gutierrez never met him. And his mother likely didn’t remember interacting with him. Nor did she know whether there was truth to any Mafia rumors.
In view of the vagueness of Stankoski and Stout’s claims and the lack of corroborating evidence, what likely happened is that they twisted Gutierrez’s statements about the rumors of his grandfather’s possible ties with the mob. They used those statements to claim he had told them about “his family’s involvement with the Mafia” and his own “association with the Mafia.”
The investigators did the same in their report. And this time they not only painted a very unfair picture of Gutierrez but of the attorney general. After the report’s section about Gutierrez’s supposed ties with the Mafia, the next section was titled “Gutierrez’s Close Association with the Attorney General.” This juxtaposition led readers to infer that the attorney general might be connected to the mob through his association with Gutierrez.
What a horrible thing to imply about Ohio’s chief law-enforcement official without any credible evidence! Those false impressions played no small part in fanning the emotional flames that led politicians in Dann’s own party to denounce him, demand his resignation, support his impeachment, and seek a further investigation of his office by the inspector general.
About five months later, though, a deputy inspector general didn’t take the Mafia allegations nearly as seriously. He laughed and was practically apologetic when raising the subject with Gutierrez. The deputy apparently viewed the allegations as ludicrous, which they were. And the inspector general’s report contained no finding that Gutierrez was associated with the Mafia.
False or Misleading Allegation No. 8: There is “substantial evidence to suggest that Gutierrez transported a firearm in his state-issued vehicle(s), which he parked in the State Office Tower Parking Garage. His conduct, if proven, may have violated state laws prohibiting the transportation of a firearm onto state property.”
The report not only said Gutierrez was involved with the Mafia but implied he might be a hit man, or involved in similar nefarious activities, because he reportedly carried a gun in his state vehicle. This was not only an unfair but ridiculous portrayal.
In regard to the evidence of Gutierrez having a gun in his vehicle, the investigators didn’t describe it as “substantial” when they interviewed the chief of policy and administration after they had interviewed all the other witnesses. One of the investigating attorneys said to him: “We’ve heard reports from more than one individual that perhaps Tony Gutierrez was carrying a firearm in his state vehicle. Did you ever become aware of the possibility that he was doing this?”
A “perhaps” and “possibility” seem far below the level of substantial evidence, which is how the investigators chose to describe it in their report. The chief of policy and administration responded that he was unaware of Gutierrez having a gun in a vehicle. That was the same answer given by a telecommunications assistant who had driven Gutierrez’s state vehicle, the administrative secretary, and the attorney general.
As for the direct evidence of Gutierrez having a gun, a facilities manager said he saw a gun case in Gutierrez’s car but didn’t know whether a gun was in it. Stankoski claimed she saw a gun in his car “in a case” and put it under the seat. But it’s unclear how Stankoski could tell there was a gun in the case while the facilities manager could not.
Even if Gutierrez had a gun, there was a logical reason. The chief of policy and administration explained to the investigators that Gutierrez was acquiring a license to carry a concealed weapon.
Similarly, the fixed-asset manager testified that Gutierrez had planned to get the license. A facilities manager thought Gutierrez had either gotten the license or was working on getting it. The deputy director of human resources thought Gutierrez had obtained the license but she wasn’t sure. The telecommunications coordinator heard that Gutierrez had gone through a class and obtained a permit to carry a gun.
Gutierrez’s administrative assistant testified that she helped him fill out an application to carry a concealed weapon. She had contacted the local sheriff’s office for instructions about the application process. And Gutierrez went through the required class to obtain a license to carry a gun.
When the investigators asked the administrative assistant if Gutierrez had a work-related reason for carrying a gun, she explained that when the attorney general’s driver was unavailable, Gutierrez planned to be a back-up driver and bodyguard. Gutierrez did occasionally drive for the attorney general.
Because the attorney general had received death threats, his bodyguard probably should have been armed. In fact, both the attorney general’s regular driver and the previous attorney general’s driver carried a gun for security purposes.
But the report said almost nothing about the steps Gutierrez had taken to legally carry a gun. And it was completely silent about the job-related reason he had done so. Instead, it let readers assume his reason for having a gun was likely related to his so-called “association with the Mafia.” The investigators wrote the report this way even though they hadn’t asked Gutierrez about a gun while interviewing him.
When the actual evidence is examined instead of the unsupported and inflammatory allegations in the report, it’s not surprising that Gutierrez was never charged with violating “state laws prohibiting the transportation of a firearm onto state property.”
False or Misleading Allegation No. 9: “Cronyism has no place in the Attorney General’s Office. Individuals should be hired based on their ability to do the job and not because of friendships without regard for their qualifications.”
Those broad statements were included on the last page of the report without indicating what exactly was being referred to. But the lack of specific supporting evidence didn’t stop the media from repeatedly proclaiming that the investigation had found an attorney general’s office beset by cronyism.
Possibly the report was referring to Gutierrez being a neighbor and longtime friend of Dann. But Gutierrez had significant job qualifications, which the report didn’t mention, for being director of general services. The investigators knew he wasn’t hired “without regard for . . . qualifications.”
Concerning Gutierrez’s skills, the deputy director of general services told the investigators: “He knew what he was doing. . . . We needed somebody in our section that knew the construction, knew leases. . . . He was the perfect person . . . to be brought in to do that, because . . . that was his background. He understood it.”
The deputy also informed the investigators: “Tony was the best – one of the most knowledgeable people I know in regard to leases, facilities, . . . construction. . . . We didn’t have that before. . . . We need somebody with his expertise. He fit that very, very well. . . . Knowing the job, getting things done, he’s the man to go to, because he can get it done for you.”
Although the deputy mentioned that Gutierrez had deficiencies in regard to management practices and interpersonal relations, this wouldn’t be surprising given that Gutierrez was new to state government after working as a construction contractor for 27 years. With time, he could have improved in the areas where he had weaknesses. The potential to improve management skills is a reason the state government sends its managers to training.
Moreover, the deputy indicated that because his own management and interpersonal skills complemented Gutierrez’s deficiencies, the two worked well together. Gutierrez had the technical skills and the deputy had the people skills.
A general services assistant likewise testified that Gutierrez “did his job, and he did it right.” And a facilities manager said the attorney general “wanted to get things done. And through Tony . . . those things would get accomplished.”
If the “cronyism” charge stemmed from Gutierrez’s hiring of Stout, who at the time was a friend and neighbor, the report was wrong in claiming the hiring was done without regard for qualifications. Although Stout later proved that Gutierrez had seriously misjudged her character, her criminal background didn’t automatically disqualify her from working for the office, because she had no felonies on her record. And before she started the job, she believed she had the ability to perform the duties described at her interview.
Gutierrez said about Stout’s work while in his section: “She’s a good worker. She caught on quick what she needed to do.” After Stout was transferred to another section, the director of that section said she was a good worker, and he never received any negative reports about her work. Many jobs in state government don’t require higher education.
Additionally, the investigators had received testimony that the practice of hiring friends is widespread in Ohio’s state government. A telecommunications assistant told them that for any job with the state, “you usually got to know somebody to get in there.” He is the son of a former Republican county prosecutor and was hired under a Republican attorney general. But the investigators weren’t concerned about possible cronyism in his hiring or the hires he alluded to.
In fact, to hire friends is not necessarily a bad thing. Probably all administrations at the state and federal levels have done so. In criticizing President George W. Bush’s “blatant cronyism” in hiring unqualified friends for vital positions in the federal government, author and former prosecutor Vincent Bugliosi indicated “it’s okay” to appoint friends “if they are qualified.” Bush failed to meet that standard by, for example, hiring friends who clearly didn’t have the background to competently respond to the devastation and misery caused by Hurricane Katrina.
That type hiring wasn’t done at the attorney general’s office. Contrary to what the report suggested, the investigation revealed no evidence that people were hired because of friendships “without regard for their qualifications.”
False or Misleading Allegation No. 10: “There was an active effort in the office by long time friends at the administrative level to overlook the transgressions by Mr. Gutierrez over a long period of time.”
Here was another suggestion that Dann and his administrators had allowed a sexually hostile environment by not acting after receiving reports of possible problems involving Gutierrez. This too was an unfair accusation.
In October 2007, the director of human resources received a report that Gutierrez might be inappropriately fraternizing with some female employees, including Stankoski. As a result, several managers addressed the issue with him. They included his longtime friends at the administrative level.
The director had received the information from a disgruntled employee in general services. The employee wanted transferred to another section for reasons not involving sexual harassment. In presenting her concerns to the human resources section, though, she said Gutierrez might be giving unwanted attention and making inappropriate social invitations to some female employees. But she said Gutierrez had never done those things to her.
To accommodate the dissatisfied employee, the attorney general’s office transferred her to a different section, where she was happy and had no more complaints. Also as a result of the woman’s allegations, Stankoski was asked if she wanted to file an EEO complaint against Gutierrez. But she refused and was furious with the woman for talking to the human resources section. (Stankoski and Gutierrez were still buddies at the time.)
Nevertheless, several managers confronted Gutierrez about the issue. Shortly after hearing the woman’s concerns, the human resources director told him: “Tony, I don’t know what’s going on, but let me tell you something right here and right now, you cannot take females out. You can go out as a group, but don’t ask the young ladies out to dinner, don’t ask them for drinks, don’t make inappropriate comments. It has to stop. Do you understand me? And he said, yeah, I understand. It’s not gonna happen. I said, okay, better not.”
In December 2007, the director had a second conversation with Gutierrez about the subject. She said this occurred when he “kind of brought it up again” at a chiefs’ retreat they were attending.
After hearing about the woman’s allegations, the chief of policy and administration directed the chief operating officer to look into the matter. He told the investigators he instructed her “to talk to Tony, find out what was going on, and counsel him that if, indeed, he was fraternizing outside of work with young female coworkers, that that was a problem and that he needed to stop.”
The chief operating officer was very upset upon learning of the possible problem. She went searching for Gutierrez and told him she needed to talk with him right away about something that could not wait. Then she upbraided him: “If the information that we’ve heard about you dating or trying to take out your staff is true, you need to cease and desist that immediately.”
She further informed the investigators: “I said, Tony, you don’t date or do anything with people who work in this office. . . . I was very intense with him. And he’s trying to explain. I said, don’t explain anything to me. I don’t know if this is true. . . . You do not date or take out or harass people in this office. And he said, I understand. . . . It will not happen again. I promise you.”
She didn’t reduce the reprimand to writing because there was no complaint from anyone claiming to be a victim. Afterwards, she told the chief of policy and administration and the human resources director about the reprimand.
The chief of policy and administration also spoke with Gutierrez about the rumors of drinking and possible improper fraternization with female employees. The chief said Gutierrez “swore up and down” the rumors weren’t true.
The chief responded that “regardless of the veracity, it’s a problem,” and “if there are these kind of persistent rumors . . . you need to address whatever you’re doing that may cause this kind of talk.” He further told Gutierrez that “you need to watch your behavior, not just during work hours but after work, as well.”
The chief also wanted the communications director, who was a longtime friend of Gutierrez, to talk with him about the possible problem. The chief believed that the communications director did so.
The communications director told the investigators he wasn’t involved in the counseling but understood that the chief operating officer had instructed Gutierrez on proper conduct with subordinates. Based on the information provided by the employee, the director thought the counseling was necessary.
When the attorney general heard about the issue, he too addressed it with Gutierrez. He said he “took Tony aside, and I very firmly asked him to stop drinking in Columbus and to not fraternize with office employees and suggested that he put us in a very, very bad position.”
With no complaint filed against Gutierrez at the time, probably the most that could be done was counsel him and warn him that any possible problem needed to be corrected. Certainly that was a reasonable response under the circumstances. Besides, longtime friends are more likely than others to know the steps needed to make sure a friend is not straying from the correct course.
In fact, the acts taken were apparently effective to at least some extent. When Stankoski filed her complaint against Gutierrez months later, the three specific incidents she alleged had occurred in September and early October 2007 – before Gutierrez had received the counseling and warnings from management. Until the women filed their complaints in March 2008, the human resources director had received no more reports of Gutierrez behaving improperly with female employees after management had addressed the issue with him.
Obviously, the report was false in claiming that Gutierrez’s friends in the attorney general’s office had overlooked the possible problem. No wonder that when the investigators asked the chief operating officer if policies had not been followed because of personal friendships in the office, she answered, “Absolutely not.”
Of course, the investigators left her statement out of the report too.
That’s not all, folks
In addition to the report’s false statements on major issues, it included a number of misstatements on smaller matters. All of those falsehoods appeared intended to put Dann’s office in a bad light.
For example, the report falsely portrayed the attorney general and his wife as having been rude to Stankoski during the holiday season in December 2007. The report said that when Dann and his wife were distributing cups of candy to employees as gifts, they gave one each to two employees who were with her “but did not give Stankoski a mug.”
The report omitted Stankoski’s own testimony, and the testimony of one of the coworkers, that after Dann and his wife ran out of cups when they got to Stankoski, his wife returned with a cup that she gave to her.
The report tried to make Gutierrez appear rude by saying he called his deputy director an “idiot.” That claim was based on Stankoski’s testimony. The report left out that also according to her testimony, Gutierrez made the statement in a joking manner.
In regard to Stout’s transfer from Gutierrez’s section, the report said the chief of policy and administration “claims that he believed there was an ‘operational need’” in the section she was transferred to, even though the director of that section “never expressed a need for a clerical employee.” The report thereby impugns the chief’s integrity.
But the report didn’t mention that the chief operating officer had told the chief of policy and administration that help is always needed in the section to which Stout was soon transferred. Nor did the report point out that the director of that section had no problem in productively utilizing Stout. He told the investigators “we always have plenty to do,” “I need people,” and “she can help us in various ways.” The chief was therefore entirely justified in believing an operational need existed to have another employee in the section.
The report excoriated the attorney general’s communications director for supposedly trying to get a coworker to testify falsely about whether they had driven together or separately to meet Gutierrez and Stankoski for dinner at a restaurant more than six months earlier. The report said he tried to “impede the investigation” by doing so.
The report failed to recognize, however, that the testimony was irrelevant to Stankoski’s complaint. It also failed to mention that the director testified that because he had met various people for dinner over a hundred times in the previous months, he could remember little about a dinner that had occurred over six months earlier. And the report omitted the testimony of a coworker who corroborated the director’s assertion about being unable to recall the driving arrangements for the particular dinner.
Other instances of the report’s false or misleading statements could be given. But more than sufficient examples have already been provided to show that the document was seriously flawed, extremely unfair, and not credible.
Such an inaccurate report should never have been used for introducing articles of impeachment against an elected statewide official, pressuring him to leave office, firing members of his staff, and ruining careers and reputations. Without the report’s misstatements, there would have been no basis for forcing the attorney general from office.
A convenient untruth
By being a pack of lies that put Dann’s office in a horrible light, the report enabled Ohio’s Democratic leaders to make a personnel change that some of them had apparently been wanting.
In the 2006 race for attorney general, Dann’s upset win over the establishment’s Republican candidate was not expected by anyone. After it happened, Republicans weren’t the only ones who seemed uncomfortable having a hard-charging populist and progressive as attorney general.
Whether because of Dann’s lawsuits against some of America’s largest corporations, the corporate media’s frequent attacks on him, his strong support for whistleblowers and open government, or another reason, certain Democratic leaders appeared uneasy about having Dann as attorney general. They turned out to be corporate Democrats whose governing style includes catering to well-heeled corporate interests and otherwise continuing business as usual in the state government. They surely knew that Dann’s hard-line populism could cramp their style.
At least some of those factors were likely reasons that before Dann had been in office a year, rumors were circulating around the Statehouse that he would be challenged in the 2010 Democratic primary by then-State Treasurer Richard Cordray, who refused to rule out the possibility of such a run.
Cordray is a moderate Democrat and has been on the political scene in the state’s capital, Columbus, for many years. He is much more acceptable to the Columbus corporate establishment than the upstart Dann, who is from Youngstown.
Rather than having to wait until 2010, Ohio’s Democratic leaders got their chance to dump Dann in May 2008 when the internal report was issued. And they leapt at the opportunity.
On a Sunday two days after the report came out, the Democratic governor had already lined up the statewide Democratic officeholders, along with Democratic leaders in the Ohio House and Senate, to demand Dann’s resignation or impeachment. They refused to give him the presumption of innocence that every American is entitled to. And they moved so fast that they kept any focus off whether the report was accurate.
Then they applied every available strong-arm tactic to hamstring Dann’s ability to function as attorney general and coerce him to resign without an impeachment trial. They used the internal report’s lies to justify their acts, pillory Dann and his people, and destroy reputations and careers. They had no interest in giving anyone due process of law or other constitutional rights.
The people’s elected attorney general was thereby railroaded from office after being there only 16 months. Immediately afterwards, the governor said he was “pleased” by Dann’s resignation, probably with visions of corporate campaign contributions dancing in his head.
In announcing the appointment of an interim attorney general to replace Dann, the governor said he selected her before he knew whether she was a Democrat or Republican. And although the appointee claimed to be a Democrat, a check by the media revealed she had registered as a Republican in 2006. All this was more evidence that the governor and other state Democratic leaders did not want an aggressive, pro-consumer attorney general, even though the voters had made that choice by electing Dann in 2006.
In November 2008, Cordray won a special election to serve the remainder of the term that Dann had been elected to. During the campaign, Cordray promised businesses he would be less aggressive than Dann had been as attorney general. Cordray claimed that in suing businesses, Dann “went overboard . . . in several areas.”
That position was undoubtedly music to the ears of corporate lobbyists. And Cordray took Dann’s place just like the powers-that-be had wanted. In Ohio, the moneyed interests almost always get what they want, one way or another.
The internal investigation’s lead investigator, Ben Espy, was a Columbus city councilman for 11 years, was once the Democratic candidate for mayor of Columbus, was a state senator in central Ohio for 10 years, ran unsuccessfully for the Ohio Supreme Court, and practiced law in Columbus for 30 years. This background would have enabled him to form strong ties to the Democratic and corporate establishments in Columbus.
Whether he and his partner intentionally falsified the report to enable those interests to drive Dann from office is uncertain.
The only other explanation is that the investigators were grossly incompetent in writing the report. But it’s hard to believe that two highly experienced attorneys could be so inept.
(Unless otherwise indicated, all transcripts referred to below are of the testimony taken during the internal investigation at the attorney general’s office.)
Espy/Pfeiffer Report, p. 56
Chapple transcript, p. 41; see also Simpson transcript, p. 32
Botts transcript, p. 5
Botts transcript, pp. 5-6
Botts transcript, p. 6
Botts transcript, p. 38; see also Bostos-Demers transcript, p. 153
Bostos-Demers transcript, pp. 80, 85-86 and 91
Bostos-Demers transcript, p. 5
Stankoski transcript, pp. 79 and 92-93; Stout transcript, p. 6
Botts transcript, p. 26; Chapple transcript, p. 35
Botts transcript, p. 40; Bostos-Demers transcript, p. 110; Chapple transcript, p. 53
Botts transcript, p. 43
Botts transcript, pp. 31, 33-34 and 43
Bostos-Demers transcript, p. 106
Chapple transcript, pp. 52-53
Chapple transcript, pp. 35 and 37
Espy/Pfeiffer Report, p. 55
Botts transcript, p. 47
Chapple transcript, pp. 42-43; Espy/Pfeiffer Report, pp. 44 and 47
Stout transcript, p. 83
Botts transcript, pp. 24-25; Stankoski transcript, p. 112; see also Bostos-Demers transcript, pp. 101 and 118
Botts transcript, pp. 24-25, 44-45, 47-48 and 50
Stankoski transcript, p. 112; Botts transcript, pp. 24-25
Bostos-Demers transcript, p. 118
Stout transcript, p. 83
Stout transcript, pp. 84-85; Botts transcript, pp. 8-9
Stout transcript, p. 87
Botts transcript, p. 20; Bostos-Demers transcript, p. 69
Bostos-Demers transcript, pp. 67 and 96-97
Botts transcript, p. 40
Botts transcript, pp. 41-42; Bostos-Demers transcript, pp. 120 and 153-155; Simpson transcript, p. 36; Chapple transcript, pp. 44-46 and 50-51
Bostos-Demers transcript, pp. 153-154
Chapple transcript, pp. 43-44 and 46
Bostos-Demers transcript, pp. 112-123
Winters transcript (Inspector General’s investigation), p. 31
Bostos-Demers transcript, p. 123; Bostos-Demers transcript (Inspector General’s investigation), p. 62; Inspector General’s Report, pp. 50-51
Botts transcript, p. 46; Bostos-Demers transcript, p. 123
Smedlund transcript, pp. 10-11
See Bostos-Demers transcript, pp. 122-123
Winters transcript (Inspector’s General’s investigation), pp. 29-30; Bostos-Demers transcript, p. 113
Chapple transcript, pp. 46-47
Chapple transcript, p. 46; see also Stankoski transcript, pp. 114-115
Chapple transcript, pp. 37, 39 and 52
Chapple transcript, pp. 35-37 and 40
Chapple transcript, pp. 40 and 47-48
Bostos-Demers transcript (Inspector General’s investigation), p. 62; Stankoski transcript, pp. 111-112
Stankoski transcript, pp. 178-179
Botts transcript, p. 44
Smedlund transcript, pp. 18-19
Gutierrez transcript, p. 4; Smedlund transcript, p. 20
Smedlund transcript, pp. 21-25
Smedlund transcript, pp. 19-20
Smedlund transcript, pp. 20 and 24-25
Smedlund transcript, pp. 21-22
Espy/Pfeiffer Report, p. 35
Ford transcript, p. 14
Ford transcript, p. 14
Ford transcript, p. 16
Armbrust transcript, p. 37
Espy/Pfeiffer Report, p. 1
Stout transcript, pp. 58, 100-101, 118-119 and 152; see also August transcript, pp. 57-59
Stout transcript, pp. 155-156
The policy is described in the Espy/Pfeiffer Report, pp. 6-7
Espy/Pfeiffer Report, p. 5
Espy/Pfeiffer Report, p. 40; August transcript, pp. 70-73 and 75-77; Miller transcript, pp. 41-43; Stout transcript, pp. 213-214
Saxton transcript, p. 38; August transcript, pp. 43 and 46-47 and 70-72; Espy/Pfeiffer Report, p. 40
Espy/Pfeiffer Report, pp. 6-7
Stout transcript, pp. 71-72; Saxton transcript, p. 27
Gutierrez transcript, p. 83
Haske transcript, p. 18
August transcript, pp. 40, 42 and 61-62
August transcript, pp. 40, 42 and 61-62; Haske transcript, pp. 14-15
Miller transcript, pp. 28-29; Haske transcript, p. 14; Armbrust transcript, p. 45
Haske transcript, pp. 14-15
Ford transcript, pp. 7, 15 and 23; Espy/Pfeiffer Report, p. 40
Saxton transcript, p. 25
August transcript, pp. 43-44 and 63; Stankoski transcript, p. 166; Stout transcript, p. 181; Miller transcript, p. 29; Saxton transcript, p. 25; Haske transcript, p. 14
Saxton transcript, p. 38; August transcript, pp. 46-47 and 71-72
Stankoski transcript, p. 58; Stout transcript, p. 56; Gutierrez transcript, p. 53
Inspector General’s Report, p. 46
Stankoski transcript, p. 167-168
August transcript, pp. 24-26; Espy/Pfeiffer Report, p. 40
Stankoski transcript, p. 164; Bostos-Demers transcript, p. 82
Urban transcript, pp. 7-9; Stankoski transcript, p. 24
Stankoski transcript, pp. 24 and 27
Aranda transcript, p. 24; Stankoski transcript, p. 27
Stankoski transcript, p. 31; Gutierrez transcript, pp. 36 and 38
Stankoski transcript, p. 165; Bostos-Demers transcript, p. 87; Inspector General’s Report, p. 49
Botts transcript, p. 12; Stout transcript, pp. 31-34 and 99; see also Ford transcript, p. 19
Jennings transcript, p. 35; Stout transcript, pp. 31-33
August transcript, pp. 76-77
Stout transcript, pp. 56 and 229
Stout transcript, pp. 12-14, 46, 170-171 and 180
Gutierrez transcript, p. 108; Stout transcript, p. 42
Stout transcript, p. 71
Saxton transcript, p. 12
Saxton transcript, p. 36
August transcript, pp. 77-79
Espy/Pfeiffer Report, p. 52
Chapple transcript, pp. 58 and 61
Stout transcript, p. 71
Miller transcript, pp. 25-27; Mash transcript, pp. 20-21; Ford transcript, pp. 18-19
Miller transcript, pp. 27 and 36
Mash transcript, pp. 20-22
Stout transcript, pp. 115-116
Stout transcript, pp. 118-119, 152 and 155-156
Espy/Pfeiffer Report, p. 53
Rosol transcript, p. 13
Espy/Pfeiffer Report, p. 53
See also Inspector General’s Report, p. 31
Rosol transcript, p.
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