Scholars question judge's secrecy over improper Ginther call to influence Greyhound case

Law professors specializing in ethics say they can not discern any legal reason that a Franklin County judge initially refused to name Columbus Mayor Andrew J. Ginther as the official who had improperly contacted her on how to resolve a pending city court case, leading to her eventual recusal.

The case involves the city of Columbus' attempt to shutter a new intercity bus depot on the West Side through a nuisance complaint and zoning code enforcement. Franklin County Environmental Judge Stephanie Mingo informed attorneys for both sides in mid-October that she had been contacted by a third party whom she identified only as "an elected official" trying to influence the outcome.

Related article: Ginther v. Greyhound: Key dates in the legal battle to shutter the bus depot

The official told the judge, according to a transcript where Mingo's recollection was recorded: "I know that you care about the community. I care about the community. This Greyhound station is a problem for the community. We really need you to do the right thing for the community and shut it down."

Mingo told attorneys for the city and the bus companies that operate out of the station that she had an ethical duty to disclose the call under the state's rules of judicial conduct. But Mingo would not disclose who had made the call, saying in the transcript that she had spoken with "disciplinary counsel" for guidance, "and she's under no obligation at this point in time to name that official."

Coincidentally, the "ex parte" communication happened in the middle of Ginther's campaign for re-election, just weeks ahead of Election Day, and Mingo ultimately would agree to name him two weeks after the election was over. That was at the insistence of attorneys for the bus companies, and to a lesser degree, statements from the city attorney's office that they, too, may need to know who it was, and didn't object to her naming the person.

"I can't think of a reason why it would have been improper for her to be transparent about this improper ex parte communication from the mayor," said Kathleen Clark, a professor of law at Washington University in St. Louis whose areas of expertise include legal and governmental ethics. "... I am unaware of any reason for her not to be completely transparent about it."

Mingo seems to say in the transcript not that it would be a legal problem for her to name the official, "but that she was not obligated to be transparent," Clark said.

"You know, it's a bad situation," and not one that the judge initially invited upon herself, Clark said. "... But I don't understand why she wanted to keep the identity of the mayor secret," which wouldn't be common or customary in such situations.

Mingo appears to have made a series of missteps, according to Doron M. Kalir, senior clinical professor of law at the Cleveland State University College of Law.

Mingo accepted the call from the mayor after having a member of her staff attempt to determine if he was calling about a pending case. But despite never learning what topic the mayor wanted to discuss, Mingo called him back and left her direct phone number.

Finally, the two spoke on the phone on Oct. 11, and she allowed him to make the ex parte communication before ending the call, explaining that she "appreciated his concern," but that "any discussion would be an ethics violation," Kalir noted.

Ohio Code of Judicial Conduct, Rule 2.9, prohibits courts from initiating, receiving, permitting, or considering ex parte communications, which are communications concerning a pending case when all parties to the case are not present.

"It's way, way, way after the horses have left the barn," Kalir said. "... The fact that she refused to disclose (his identity) is literally adding insult to injury.

"She doesn't need to be compelled to explain what happened. It's the mayor of the city, and she thinks it's not pertinent for the parties to know that the mayor of the city seeks to intervene? ... It really splits the hair in a way that I've never heard of before."

However, the state code of judicial conduct doesn't explicitly require the disclosure of the identity of the person making the ex parte communication, but instead requires the judge to promptly notify the parties of "the substance of the communication," and allow them to respond, said Tamara Tabo, an associate professor at the University of Dayton School of Law.

"So, there doesn't appear to be a red-line violation of judicial ethics here," Tabo said. However, one could make a good argument that understanding the substance of a telephone call might necessarily include the identity of the party that called, Tabo added.

"It is most unusual not to identify the speaker," Tabo said, making Mingo's stance "notable."

"It is most common to include the identity as you are disclosing the substance of the communication," Tabo said.

Not only was it important that attorneys for the bus companies, Greyhound and Barons, know the identity, but also for those from the city attorney's office, Clark added.

"The city needs to know who's out there engaging in inappropriate conduct so that it could shut it down," Clark said. "I don't know why the judge wanted to keep it secret, the identity of this rogue official who turned out to be the mayor."

Through a spokesperson, Mingo said Friday that — while others may hold differing opinions — Mingo "faithfully followed" the rules of judicial conduct. Mingo misspoke during an October conference with the attorneys when she said she had received guidance from the Office of Disciplinary Counsel of the Ohio Supreme Court, said spokesperson Jodi Andes.

That office told The Dispatch that it doesn't give out such advice. The agency she spoke with, Andes clarified Friday, was the Ohio Board of Professional Conduct, which gives out advisory opinions and generally offers judges and lawyers guidance on ethics issues.

"The guidance provided to the judge ... was that the judge disclose the substance of the call," Andes said, who also noted that the bus companies waited until Nov. 13 to officially ask Mingo to reconsider her decision to withhold the name.

While he doesn't recall exactly what was said back in October, "I think we did discuss that issue (of identifying the caller) in our first call, and I likely would have told her that she needed to disclose the substance of the conversation and it was up to her discretion as to whether the identity of the individual needed to be disclosed," Richard Dove, director of the Board of Professional Conduct, said in an email.

The bus depot opened in June on Wilson Road near I-70, and quickly became an issue in the mayoral election, with Ginther's opponent — Joe Motil — blasting the city's apparent approval of the controversial site.

"There is no doubt if Judge Mingo would have disclosed Ginther’s identity on Oct. 12, as she should have, it would have definitely affected my election," Motil said Friday in an email. "Ginther’s action and the judge’s failure to immediately disclose Ginther as the city official (and) the ex parte communicator damaged my campaign."

Ginther defeated Motil in November by nearly 60,000 votes, taking more than 63% of the total.

Ginther hasn't explained the ex parte communication, saying the case is active. The Dispatch asked his office Friday why he made the call, if he had asked that his identity be withheld, and if he routinely called judges to discuss pending city cases. Ginther spokesperson Melanie Crabill said Tuesday that the mayor had no comment.

Ginther did send a letter to one of the bus companies pushing for them to close the location in the summer, which prompted attorneys for those companies to request Mingo release the name of the caller in case it was the mayor further inserting himself into the case.

In that July letter to one of the bus company officials, Ginther wrote that he had directed the Building and Zoning Department and Public Safety Department to "aggressively enforce" any code violations.

"It is my sincere hope you will come to the realization that it is not in your best interest to continue to operate at the N. Wilson Road location. If not, we intend to use every available tool to force you to cease operations and relocate operations to a suitable site," he wrote.

The attorneys noted in their motion to release the caller's identity that "the breadth of any wrongdoing is currently unknown, but of course very troubling."

After the Ginther call became public, Mingo recused herself from the case, after initially saying that wasn't necessary. A special prosecutor is reviewing the situation.

wbush@gannett.com

@ReporterBush

This article originally appeared on The Columbus Dispatch: Scholars say Judge Mingo should have disclosed Ginther made call