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Cuyahoga County to hire lawyer to keep draft audits secret from taxpayers

August 24, 2018

Cuyahoga County to hire lawyer to keep draft audits secret from taxpayers

CLEVELAND, Ohio – Cuyahoga County Executive Armond Budish and members of the county’s Audit Committee propose to spend tax dollars on a lawyer who can advise them on how to keep draft audit reports secret from taxpayers. 

The Audit Committee members voted 3-1 Friday to hire a law firm to determine if the county has legal standing to prevent the public from seeing draft audits, and if not, what steps the county would have to circumvent Ohio’s public records law. 

The audit committee also voted 4-0 to ask the Ohio General Assembly to amend state law to remove any ambiguity over whether a draft audit is considered a public record. 

Friday’s action grew out of the county initially refusing to make public an internal draft audit that is critical of the Budish administration’s oversight of its IT Department. 

The county argued that the document did not constitute a public record, an assertion disputed by cleveland.com and an expert on Ohio’s public records law. 

Dave Marburger, who has authored a book on the state’s public records law who has done work for the cleveland.com and The Plain Dealer, scoffed at the notion that the draft audit could be kept secret. Marburger said the legal exception cited by the county does not apply to draft audits by the county and that the draft is considered a public record because it represents a completed document. 

The county released a copy of the draft only after another copy was leaked to cleveland.com.  

The draft audit covered a period from July 2016 to the end of 2017 and included a review of contracts that are being examined by corruption investigators with the County Prosecutor’s Office. 

Audit Committee Chairman Michael Abouserhal said prior to the audit being leaked that he had been told by Assistant County Prosecutor David Lambert that if the county withheld the document “there was a possibility” that a judge would not deem the draft a public record. 

Abouserhal, a retired certified public accountant and former employee of the State Auditor’s Office, said Friday that the release of a draft audit can be “incredibly dangerous” and given to misinterpretation.  

Asked after Friday’s meeting if the draft audit leaked to cleveland.com contained inaccurate information, he said it did not. 

County Internal Auditor Cory Swaisgood said after Friday’s meeting that the final audit of the IT contracts, which the committee voted to release Aug. 29, is substantially the same as the draft. He said it is more formal in its presentation and includes an executive summary. 

The committee proposes to ask the General Assembly to change public records law so that draft audits at the county level are treated the same as those produced by the State Auditor’s Office.  

Trevor McAleer, a member of the County Council staff who sits on the audit committee as an alternate for Council President Dan Brady, said he would draw up language to seek the law change. 

Ohio law specifically excludes draft audits at the state level from public records requirements, but is silent on whether draft audits created by a county auditor can be kept secret. 

Swaisgood said other states restrict the release of draft audits by counties and that officials from three states conducting a peer review of his department were surprised at Ohio’s law. 

McAleer voted against hiring a lawyer to review Ohio law because he believes it would be to no avail, but he agrees in principle that a draft audit should be considered private as a matter of best practices. 

Budish, a non-voting member of the of the audit committee, said he supported both seeking a lawyer and approaching the General Assembly. 

Budish, who is seeking re-election to a second term as executive, said he agreed with others that “it would be better if this committee could do its work and finish its work before everything becomes public.” 

The draft audit detailed a number of problems with procurement processes in the county government. The draft cites concerns about the authority and oversight of the IT Department’s general counsel, Emily McNeeley, who is a focus of the corruption investigation. 

Swaisgood suggests that the general counsel had been given too much authority and was not adequately supervised by the county’s Law Department despite assurance to the contrary by county Law Director Robert Triozzi. 

The draft audit also recommends that the county seek to recover $119,782 in payments to OneCommunity, a high-speed internet provider, for services that could not be reconciled during the audit. Scot Rourke, the county’s IT director, used to run OneCommunity. 

McNeeley and Rourke, whose names have appeared in subpoenas served on the county, have both been placed on leave pending the investigation. 

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