Between the national news of angry mobs in D.C. and the local news that Nan Whaley will not run for reelection, an interesting piece in the Dayton Daily News may have escaped your attention. Mohamed Al-Hamdani, Dayton Public School Board President and member of the Dayton charter review committee, has raised concerns about the Constitutionality of Section 105 of the Dayton City Charter.
Section 105, “Political Belief, Assessments and Activity,” states:
No person in the classified service or seeking admission thereto, shall be appointed, reduced or removed, or in any way favored or discriminated against because of political opinions or affiliations, or because of race, color or religious belief. No officer or employee of the city shall directly or indirectly solicit or receive or be in any manner concerned in soliciting or receiving any assessment, subscription or contribution for any political party or political purpose whatever. No person holding a position in the classified service shall take any part in political management or affairs or in political campaigns further than to cast his vote or to express privately his opinions.
Al-Hamdani has identified the part where public employees are forbidden from participating in political activities as problematic. He asserts that it conflicts with those individuals’ First Amendment rights and that, by allowing the provision to persist, the city places itself in a liable position. “You guys are pretty open to a First Amendment lawsuit,” he bluntly states.
Would the city actually lose a First Amendment lawsuit if an employee were to sue because of these restrictions? Probably not. Supreme Court precedent has protected similar restrictions so, in order for Dayton to lose such a case, it would probably have to make its way to the Supreme Court to set a new precedent.
The History of Restricting the Speech of Government Employees
The following section will primarily rely on a single source, The Middle Tennessee State University First Amendment Encyclopedia. It may not be considered good form to lean so heavily on one source, but it’s well-suited for our purposes. The site simplifies legal history and concepts for the layperson and that’s our goal. This ain’t a law journal article.
Since Earl Warren became Supreme Court Chief Justice in 1954, the United States has vastly expanded First Amendment protections. However, the courts have maintained that certain restrictions may be applied to government employees. Classified information presents a clear example of this. As we know from contemporary examples such as the cases of Chelsea Manning and Edward Snowden, government employees or contractors can be restricted from publishing certain materials as a condition of their employment.
Restrictions on political activity present a more difficult problem but follow a similar logic. In 1882, the Supreme Court decided in Ex parte Curtis that the government was allowed to prohibit government officials from receiving money from other government employees for political purposes. That is one part of Dayton Charter §105. It is also similar to the Hatch Act of 1939, which limited federal employees’ abilities to work on political campaigns or raise money for candidates. In 1940 the Hatch Act was expanded to include local government employees who receive federal funding. In the Miami Valley, similar restrictions are placed on “classified employees,” which have been frequently violated by both parties. In 1973 the Supreme Court ruled that a statute in Oklahoma restricting the political activities of state employees was constitutional because “the statute . . . [sought] to regulate political activity in an even-handed and neutral manner.”
The Hatch Act was curtailed in 1993 but this was through legislative amendments rather than Constitutional challenges in court. The act repeatedly withstood Constitutional challenges before the 1993 amendments. In United States Civil Service Commission v. National Association of Letter Carriers, the majority decision stated that “partisan political activities by federal employees must be limited if the Government is to operate effectively and fairly.” Precedent supports the legality of Dayton’s §105, but that does not mean that a suit would definitely fail. Precedent does change from time to time, and none of the previously mentioned cases were decided by any of the current Supreme Court Justices. Recent cases such as Citizens United v. Federal Elections Commission demonstrate that the high court may take a more expansive view of the First Amendment. It’s also notable that all of the previously cited cases were split-decisions; considering previous courts have not unanimously upheld limits on public employee freedoms, a change of precedent is clearly possible. But to get a case before the Supreme Court is a rather tall order. Al-Hamdani is a bit overconfident when he claims that, “if somebody sues [the city], [it’s] going to lose this lawsuit.”
The Patronage Problem
The issue at hand presents an interesting paradox. If government employees are restricted from politicking, then their freedoms have been curtailed. On the flip side, if they are given the freedom to engage in political activity, then they become vulnerable to undue influence by their superiors who are often elected partisans. Allowing politics and government administration to intermingle allows for patronage systems—where politicians ensure that all political jobs are held by political loyalists—to take hold. To determine whether laws such as §105 of the Dayton City Charter are desirable, we should weigh the harm caused by limiting government employee freedom against the harm caused by a patronage system that demands government employees act with fidelity toward a particular political party.
Government patronage jobs have a long history in the United States. Upon his election, Andrew Jackson immediately began firing officials to appoint political allies he had promised jobs to in exchange for support during his campaign. This was called the “spoils system” because “to the victors go the spoils.” The spoils system lasted until 1883 when the Pendleton Act officially replaced it with a merit system. However, this only applied to federal employees. Local governments, especially cities, often have political “machines” that combine the dominant political party with the administrative functions of local government. In Ohio this system is often seen at the county level, with a heavy intermingling of politics and government employees, even when the law prohibits it. If local governments want to avoid patronage systems, they must enact laws such as §105 to prohibit them, which is complicated by the fact that partisan prosecutors decide whether to enforce the law.
Laws proscribing patronage clearly restrict the First Amendment rights of government employees, but one can also look at the First Amendment implications of patronage from the opposite perspective. By requiring partisan fidelity on the part of government employees, the employer violates the employee’s right to express their true political beliefs. In Elrod v. Burns, the Supreme Court found that a sheriff could not make employment conditional upon partisan affiliation. Similarly, in Rutan v. Republican Party of Illinois, the court found that the state could not require all local employees to be approved by the governor.
Changing the Dayton of City Charter to allow for greater political participation may expand the freedoms of government employees, but it would come at the risk of opening the doors to patronage. In theory, the precedents set by Elrod and Rutan ought to protect employees from the greatest abuses of a patronage system, but this would require employees to demonstrate in court that their individual rights had been infringed. In both of those cases, the enforcement of a patronage system for political means was explicit and clear. What becomes more problematic is when a character like County Prosecutor Mat Heck provides extravagant bonuses with the expectation that some of that money will make its way back to the local Democratic party. He doesn’t have to be explicit about it when everyone figures out that the party loyal receive bigger bonuses and better promotions. Or when the patronage system is used to create solidarity within local government to cover up misdeeds. Allowing the patronage system to exist allows incumbents to use government resources—most importantly, labor—to maintain their political power.
If government employees are forbidden from working on political campaigns, then they have lost their voice to advocate for political changes they believe in. But this restriction also acts as a shield. Without it, they can be forced to advocate for political changes they genuinely don’t believe in. When given the choice between forcing silence and forcing speech, forcing speech appears to be the greater evil. Forcing silence allows public employees to go about their jobs without a fear of repercussions. Forcing speech can create a culture of fear, loyalty tests, and foster corruption by pushing out non-partisans.
Al-Hamdani’s primary complaint is that §105 prohibits local government employees from participating in national or state elections. Amending §105 to allow this type of political participation may be a viable way to resolve this problem without opening the doors to patronage. By arguing that the law is unconstitutional, Al-Hamdani suggests that striking the law completely is the only Constitutional remedy. It is not.
Why would Al-Hamdani argue for a patronage system? As a lawyer, he should know better. It’s difficult not to take a cynical look at Al-Hamdani’s deep involvement with the local Democratic party and conclude that he sees benefits in paving the way for a strengthened political machine in Dayton.
In our coverage of the bonus scandal from the Montgomery County Prosecutor’s Office, we first looked at how Mat Heck has provided bonuses averaging $8,851.35 to employees in 2020. Then we looked at Heck’s history of graft and previous reports that called him out for misusing public funds. Today we look at the powers prosecutors hold and how Heck’s use of extravagant bonuses amounts to an illegal abuse of that power by tipping the scales against the public defender’s office.
The Awesome Power of a Prosecutor
Our previous article reported that county officials universally fear Mat Heck. There are multiple reasons for this. First, Mat Heck is well entrenched in the local Democratic party, which we will look at in more detail in a future article. More pertinent to this article is that prosecutors in general have vast and largely unchecked power. As you may recall from our previous article, a county official explained this power by saying, “he’s our attorney.”
In a 2016 article for Reason, attorney Ken White details three cultures that leads prosecutors to disregard the rights of defendants and engage in misconduct: “the culture of the prosecutor’s office, American popular culture, and the culture created by the modern legal norms of criminal justice.” We view prosecutors, like other branches of law enforcement, as the good guys. White points out that these cultures result in uncritical approbation for prosecutors, meaning that “prosecutors are trained to treat defendants’ wrongdoing harshly and government wrongdoing leniently.”
Treating government wrongdoing leniently is especially worrisome when no one exists to hold prosecutors accountable. Nixon infamously stated that, “when the president does it…that means that it is not illegal.” Prosecutors have a similar attitude. When no one watches the watchmen, no law restrains them.
Technically, voters are the ones who hold prosecutors accountable. Unfortunately, elections have done little to hold prosecutors accountable in any form. Mat Heck has only faced an election challenge once, in 1992. In 1996 the Democratic and Republican parties of Montgomery County arrived at a public agreement to allow Heck and then-sheriff Haines to run unopposed (see article below). According to a study by Ronald F. Wright, “elections do not promote much turnover in office among chief prosecutors, nor do they prompt much public scrutiny for the policies and priorities that chief prosecutors choose.” In 2016, 69% of Ohio prosecutors ran unopposed. Of the twenty-seven offices presented with electoral challengers, only nine challengers won.
A Violation of the Law
Usually prosecutorial power and abuse is identified in the relationships between prosecutors and defendants. It is difficult if not impossible to hold prosecutors accountable for misconduct related to specific trials because they enjoy “absolute immunity” from civil suits related to prosecutorial misconduct. Our investigation underscores how the power of the prosecutor’s office extends further and can be abused for personal or political gain. Unfortunately, as outlined in our previous reports, the prosecutor has broad discretion over how to use his funds. If he wastes taxpayer money, the most immediate remedy is supposed to be a removal by voters.
We believe that Heck uses these bonuses for political means—something he has been charged with in the past—and therefore violates existing statute. In our next article we will dig into that a bit more. But today we want to look at how Heck’s bonuses violate the law in a way that is more easy to demonstrate and relates more specifically to broad, unchecked prosecutorial misconduct. Ohio Administrative Code 120-1-06 states:
The supporting staff, facilities, equipment, supplies, and other requirements needed to maintain and operate an office of a county or joint county public defender shall be sufficient to allow quality representation and shall be substantially equivalent to that provided for the county prosecutor’s office. In applying this rule, the following criteria shall govern:
(A) The salaries for public defender attorneys shall approximate and be in parity with the compensation received by prosecutors with comparable years in practice and experience.
Do the public defenders receive such large bonuses? No. According to our public record request, public defenders all received a $916.00 bonus for the pandemic. The smallest bonus Mat Heck handed out was $4,679 and that was to an “office messenger.”
ORC 120-1-6 (A) is there to make sure that public defenders are not working at such a severe disadvantage versus prosecutors that defendants would not receive a fair trial. According to the Sixth Amendment to the United State Constitution, defendants in criminal cases are entitled to counsel. In the 1963 case Gideon v. Wainwright, the right to a public defender for those unable to afford legal representation was affirmed by the Supreme Court and subsequent cases have further extended this right. Public defenders often lack the resources and pay of prosecutors, and they are often comparably overworked, but the Ohio code attempts to mitigate this by ensuring parity between prosecutors and defenders when it comes to pay and resources.
By using bonuses to circumvent the salary levels set by the county commission, Mat Heck has violated this law. His bonuses ensure that the prosecutor’s office will be able to attract better talent than the public defender’s office and deny “quality representation” that is “substantially equivalent to that provided for by the county prosecutor’s office.” Having handed out these bonuses for decades, Heck has been in violation of this parity equation for decades.
A more pedantic look at the law would highlight two key words: “salaries” and “compensation.” Heck may argue that a parity of salaries remains and that bonuses therefore do not violate the statute. This argument is weak for two reasons:
- The word “salaries” applies to the public defender attorneys while the word “compensation” applies to prosecutors. Bonuses would be considered “compensation” so therefore, the public defender’s office would need to be provided the data to appropriately adjust salaries to match the salary + bonus structure of the prosecutor’s office.
- Mat Heck has publicly admitted that he uses the bonus structure to circumvent salary limits. In 2011, Heck mouthpiece Greg Flannagan stated: “These are one-time, lump-sum payments to reward superior employee performance in the face of the inability to give any raises due to budgetary cuts.” Multiple sources within the county government have also told us that Heck uses the bonuses to circumvent salary limits. As we previously reported, Heck publicly complained in 2018 that he could not apply bonuses toward pension calculations, arguing that they should be calculated toward “total compensation.”
If you look at the Public Defender letter above, an interesting detail states that employees will not receive Christmas bonuses because of pending retirement payouts. This indicates that not only is Heck doing an end-around the parity measures, but that the county is not providing the public defender’s office with the appropriate funds to match Heck’s spending. Ohio Code specifically calls for a parity of resources and compensation, yet the Prosecutor’s Office somehow ends up with a surplus of over a million dollars while the Public Defender’s Office must make cuts to meet retirement obligations.
Unfortunately, indigent defendants who have been prosecuted by this imbalanced system probably have few options. Because of the absolute immunity prosecutors enjoy for misconduct, they cannot be sued even if they broke the law. It seems unlikely that any sentences would be overturned because Ohio law actually goes a step beyond court precedent, which only requires that a defendant received “effective counsel,” which is a very low bar. It would be difficult for any defendant to argue this had a material impact on their case.
Further complicating matters is that, as a part of the Ohio Administrative Code, it’s not clear whether there are penalties for violating the code. What’s worse is that Heck’s clearest violation of the code—financial maneuvering so that public defender offices cannot adequately adhere to the code—may be a case where no one is in a position to do anything about it. This is the problem with prosecutorial misconduct first outlined in this article—even when prosecutors violate the law, no enforcement mechanism exists to remedy the situation.
Ohio Revised Code does provide a solution with section 309.05 (“Removal of prosecuting attorney for neglect or misconduct”) to deal with corrupt prosecutors but it’s unpalatable by design. It requires a taxpayer to file a complaint “containing distinct charges and specifications of wanton and willful neglect of duty or gross misconduct in office by the prosecuting attorney.” However, this will just take you before a judge who has known the prosecutor for years and is likely friendly with him. The judge may rule that the prosecutor committed misconduct but not “gross” misconduct. If you lose the case “the court shall render judgment against the losing party for costs.” The prosecutor has the unlimited resources of the taxpayers at his disposal to cram the case with filings to delay and raise the costs to the taxpayer. The law itself protects lawbreakers within the government. This is why Reconstructing Dayton believes Ohio needs a non-partisan elected “Chief Ethics Officer” in each county to oversee elections and Sunshine law violations as well as cases of malfeasance like this.
We believe Heck’s use of exorbitant bonuses violates more than just the Ohio Administrative Code, but we are still collecting information to make a larger legal case. Heck’s ability to violate this law with impunity demonstrates the power of a prosecutor and the inadequacy of our legal system to provide the appropriate checks and balances on prosecutors. It will probably take an outraged electorate—and a brave candidate—to unseat Mat Heck.
In the near future, we will look at the political dimensions of this story and legal ramifications associated with the political nature of the prosecutor’s office. Once we finish compiling public records from other county offices, we will also publish an article looking at this data.
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Dayton City Manager Shelley Dickstein commenting on executive bonuses for the Dayton Development Coalition: Mar 3, 2014
To pay somebody 25 percent of their salary just because they did the work they were supposed to be doing for their salary never seems to line up well, and it certainly doesn’t line up well with the public sector.
On Monday we reported that the Montgomery County Prosecutor’s Office has been handing out exorbitant bonuses even in the face of pandemic-related austerity measures. These bonuses averaged $8,851.35 in 2020 and every employee under Prosecutor Mat Heck received a bonus between $4,679.00 and $23,405.24. Since Monday, we have found out that Mat Heck’s large bonuses are notorious within county government and have been publicly reported before. Heck, having faced no election challenger for decades, has apparently felt no pressure to end his extensive graft.
2013 Report Details Same Problem
In 2013 the Dayton Daily News reported that Mat Heck handed out extremely large bonuses. At the time, Montgomery County struggled to climb out of the Great Recession and austerity measures in the county led to a salary freeze. Heck’s office provided this justification:
First, a LSP (Longevity Supplemental Payment) is not a bonus,” Greg Flannagan, a spokesman for Prosecutor Mat Heck, wrote in an email. “Longevity pay is not paid across the board — the LSP amounts are based on individual employees’ merit and performance. … These are one-time, lump-sum payments to reward superior employee performance in the face of the inability to give any raises due to budgetary cuts.
We’ll have to put in a public records request to check the accuracy of that statement. In 2020, the number of employees receiving bonuses totaled the exact number of employees in the Prosecutor’s staff directory. Arguing that they allow the office to “reward superior employee performance” despite budget cuts—the salary freeze—is an admission of intentionally circumventing the salary freeze.
Over time, Heck has become more brazen. The 2013 report claims that the average bonus for the Prosecutor’s Office totaled $4,300 in 2011, ranging from $1,000 to $14,000. As reported above, in 2019 and 2020 the average bonus was over twice the 2011 amount with the minimum bonus nearly five times the 2011 amount.
Reports of Graft Have Not Deterred Mat Heck’s Graft
The 2013 Dayton Daily News report was shocking because Heck continued to hand out bonuses despite the financial hardships and county-wide austerity measures. The 2019 data we have unearthed demonstrates that Heck will squeeze the department of all funds to benefit his employees. A 2012 Dayton Daily News piece confirms that Heck has done this for years.
The piece looks at “Furtherance of Justice” (FOJ) funds that prosecutors can use as a petty cash fund for supplies or incidental expenses. Like the payroll surplus that Heck pillages rather than returning to the county general fund (i.e. taxpayers), the department is allocated a specific amount for the year and they can “use it or lose it.” The fund was designed to give the office flexibility to spend when time constraints prevented going through formal channels, as law enforcement can be unpredictable and time sensitive.
Instead of using the Furtherance of Justice funds to further justice, Heck used them to fill up his gas tank. Between 2009 and 2011, Heck spent $4,000 on gasoline. He claimed this was because he drove to official meetings and crime scenes. However, two or three times a month the receipts came from gas stations near Heck’s Clayton home and it seems hard to believe that Heck’s job kept him on the road enough to spend $4,000 in gas in three years.
In the last three days of 2011—three days before the money would run out—Heck spent $32,000 on things such as iPads so he would only have to return $8.39 to the county. To justify spending FOJ money on general office expenses, Heck said, “They have cut us so drastically, it makes sense to shift costs toward the FOJ fund, and it conforms to the law.” The drastic cuts Heck decries did not interfere with the large bonuses he handed out that year.
Heck is One Heck of a Boss
If the prosecutor’s office were Mat Heck Incorporated, his actions would be laudable (unless, extending the analogy further, he was bankrupting his own company to enrich his employees in the short term, in which case it would be an odd form of embezzlement). It’s not hard to see, from Mat Heck’s perspective, that he’s giving hard-working employees just rewards. But it’s not his company. It’s a public office.
In 2018 Heck publicly complained about the fact that “end of year compensation” was not being calculated toward employee pensions and fought the state on the issue. Once again he was standing up for his employees. However, once again this came at the expense of taxpayers. If the bonuses counted as part of the employee salaries, then they would receive larger pension payments.
By asserting the bonuses constitute a portion of salary, Heck publicly admits that he intended for the bonuses to circumvent salary limits on his employees. A highly placed county official we spoke with said that Mat Heck feels that his employees are not adequately compensated and he uses the bonuses to remedy that. It would be admirable that Mat Heck goes to such great lengths to fight for his employees if not for the fact that he does so at the expense of the taxpayers and the county at large.
Further complicating matters is that many of Heck’s employees—especially those receiving the largest bonuses—are lawyers. Not including Heck, the average salary in the Prosecutor’s Office is $54,264.66. That’s counting all the receptionists, secretaries, victim advocates, and other employees who are either recent college graduates or do not hold an advanced degree. The lowest paid employee, Jennifer Comes, earned $23,004.80 in 2019, which was anomalously low (don’t worry, she got a $4,692.98 bonus). It’s not like Heck is just giving large bonuses to the employees with lean earnings. Remember that the largest bonus, to Debra Armanini, was $23,405.24—that’s more than Ms. Comes’ entire 2019 salary! It seems doubtful that you could find a single taxpayer who believes that First Assistant Prosecutor Debra Armanini is underpaid with a $154,996.40 salary. Coincidentally, Armanini’s husband works directly under Mat Heck’s wife as a magistrate in Vandalia.
It’s little wonder that no one from the Prosecutor’s Office has publicly complained about this graft. It would be easy, in their shoes, to see Heck’s actions as noble. He takes care of his employees. But in just the past two years that has cost the county more than $2 million. Mat Heck probably believes he’s doing the right thing. Seeing the instant gratification of happy employees feels a lot better than helping a bureaucratic machine run as efficiently as possible. The former is immediate and clear, the benefits of the latter are more obscure and difficult to recognize. In the short term, eating sweets is always more satisfying than exercising. In the long term, exercise pays off.
Heck Feared by County Officials
The county official we spoke with asked not to be named because, according to the official, “nobody can cross Mat Heck.” The official stated that Mat Heck has notoriously pillaged surplus funds for bonuses since the 1990s. Although other county officials have mentioned to Heck that the practice appears unscrupulous, he does not listen to or tolerate criticism. The official said, “If you’ve ever met him…Mat Heck is a really nice guy, but you really don’t want to be on his bad side.”
While the official would not give us specific examples, just saying, “you gotta understand, he’s our attorney,” an incident with Mat Heck’s wife in 2013 may be illuminating. Cynthia M. Heck is the municipal court judge of Vandalia and she attempted to have Vandalia city prosecutor Claudia Turrell fired for personal reasons. In 2011, Heck prohibited Turrell from the courtroom because she “disliked Turrell’s facial expressions.” In 2013, she banned Turrell from working with the court in any capacity, jeopardizing Turrell’s job, for allegedly repeating a rumor that Mrs. Heck had been pulled over for a DUI (as the wife of the County Prosecutor, it’s impossible to know whether this is true). After the Dayton Daily News publicized the event, the city manager informed Heck that she lacked the authority to ban the prosecutor and the order was rescinded.
A pervasive fear of Heck may explain why he has not been contested—either in the primary or general election—for over twenty years. Although the official we spoke to insisted that Heck’s actions are legal, in consultation with a local attorney we have identified multiple provisions within the Ohio Revised Code that Heck’s bonuses may violate. It appears that county officials assume the conduct is technically legal because the county’s foremost legal authority—Mat Heck—claims that his actions are legal. The county official also insisted that the County Commission lacks the authority to reign in Heck’s spending because he’s an elected official held accountable by voters rather than the Commission. We have yet to confirm that claim with legal experts.
It does appear that the Ohio Revised Code gives Heck a wide latitude to determine employee compensation, as outline in ORC 325.17:
The officers mentioned in section 325.27 of the Revised Code may appoint and employ the necessary deputies, assistants, clerks, bookkeepers, or other employees for their respective offices, shall fix the compensation of those employees and discharge them, and shall file certificates of that action with the county auditor. The employees’ compensation shall not exceed, in the aggregate, for each office, the amount fixed by the board of county commissioners for that office.
We asked the county official if the County Commission could just reduce the budget allocated to the Prosecutor the next year, viewing the bonuses as surplus spending. Predictably, we were told that it won’t happen because the Commission won’t stand up to Mat Heck and the action would be perceived as an attack on law enforcement.
More Yet to Come
We have filed more public records requests and we will share that data as we receive it. Unfortunately, several offices have ignored or stalled our public records requests. This is common when filing public records requests, especially when the office does not want to release the information. For example, when we initially filed the request with the Prosecutor’s Office, they tried to comply by just sending us the bonus template letter and denying the existence of the filled out letters. After reminding the Prosecutor’s Office of applicable laws, they quickly complied with the full request.
The County Auditor’s Office has complied with our public record’s request and we will post those documents soon. Our source within the county informed us that it is unlikely that bonuses from other offices will approach the level of spending found in the Prosecutor’s Office and this is true with the Auditor’s Office. However, we are still concerned about using bonuses to circumvent the salary freeze.
We are also concerned with the county’s overall spending on bonuses and how this process is wasteful and opaque. If these bonuses are given for performance, how is that evaluated? If they are just a perk of a local government job, is it appropriate for them to be handed out when the pandemic has crippled our economy and so many individuals are struggling? After all, county employees enjoy a job security that many rightfully envy during these difficult times.
There are some other problems we’ve identified with Mr. Heck’s bonuses that should make it clear that he believes himself to be above the law. We will publish a piece on that early next week. With the assistance of the public, we will continue to hold wasteful and corrupt officials accountable.