Round 2: Esrati vs DPS and Dayton City Commission

Judge Skelton asked for both sides to file a memo arguing if ORC 121.22 trumped Rule 65, even though he made it clear that he believed it did to start the court arguments.

And he asked us to use a pen, not a shovel.

To me, the pen is the tool that changes history. Shovels are what you use to muck a stall. Lawyers love to shovel. I love to write.

So, my filing is 9 pages plus attachments. I strayed outside the lines of strictly interpreting the issue of ORC 121.22 vs Rule 65, by explaining all the actions of the task force amounting to repeated  and willful violations of the law. Since the defense tried to claim that a TRO as required by Rule 65 was moot, since they had already violated ORC 121.22, and that he believed that sticking to the law in the future would some how fix things- clearly had to be addressed (total bullshit, needing a bulldozer instead of a mere shovel).

Needless to say, the research was enlightening.

404 error of the county Clerk of courts site

The Montgomery County Clerk of Courts site doesn’t like my filing.

Unfortunately, the Courts website (the one with the 35 page instructions on use) gives a 404 error when trying to upload the the large document that the school task force was given during their illegal tour. I had to abbreviate it just to upload to the site. Acting in full transparency mode, I’m posting it here, now. I’m sure, this will give the advantage to the defense, who will now, re-write their memo, turning it in at the last minute- and wasting considerable tax payer dollars doing so.

That is the crux of the problem with ORC 121.22- the burden and risk, is all upon the plaintiff- who risks getting billed for court costs and attorneys fees if their motion is found to be frivolous. Public officials who break the law, on the other hand, suffer zero personal risk, having tax funded defense at their disposal.

It also turns out that removal from office has been a false threat, enforced almost never. Our “Sunshine Laws” are in practice, just blowing sunshine up our collective butt.

Or at least they have been in the past.

The actions of these elected officials and employees of the district have been so wrong, so wanton in their disregard for the law, that maybe, just maybe, this will be a case that makes a difference. Or not.

At this point, the judge will consider both filings, and then offer a conference call on how to proceed.

My call is that he issue the injunction, which allows me to begin the process of contacting the Open Government Unit to begin proceedings to remove Jeff Mims, Robert Walker, William Harris and Mohamed Al-Hamdani from office.

He should also order the task force disbanded, and all members ruled ineligible to discuss the issue of school closings because they participated in an illegal secret meeting. This means, Acting Superintendent Lolli, Associate Superintendent Burton and Treasurer Abraha would all have to sit this one out.

Mims would have to be replaced by election, the three school board members would be replaced by those chosen by current remaining members, John McManus, Sheila Taylor, Jocelyn Rhynard and Karen Wick Gagnet, from members of the community that ask to sit on the board.

The only thing left to decide in court, is how many times they broke the law, and how many times the $500 fine should be counted.

Here are the documents for you to read, which are also available on the County Clerk of Courts site.

thumbnail of Rule 65 or ORC 121 – v3

The Esrati filing on which law to use

thumbnail of A-1 Citizen Advocacy Center Explaination of Sunshine Laws SM

A guide on the sunshine laws in Ohio that is clearer than the AG’s version

thumbnail of A2 Violating government-access laws rarely results in punishment for the offenders | Reporters Committee for Freedom of the Press

Document From Media and the law explaining that Sunshine Laws are weak.

thumbnail of A-3 Re Public records request- tour docs

Public Records Request from David Esrati to the School Board for the documents used on the tour

thumbnail of A-4 Task Force Docs – Tour Day 2-6-18abreiviated

The abbreviated version of the task force document handed out on the bus


9pm Monday, 12 Feb 18 The city uploaded their response after 4pm. They had until midnight. It’s odd in that it focuses on the judges ability to shut down the task force, which wasn’t what he asked for, and some case law trying to grasp at straws that Rule 65 applies, without any specificity to the case.


9:15 am Tuesday, 13 Feb 18. The School Board attorney also filed a brief- more to the issue of Rule 65 and also arguing that the judge can’t disband a task force. Really? How can a task force that violates the sunshine law- by meeting in private, possibly contribute to any discussion the board will have about the issue of closing schools, and, how can any employee of the district, that helped coordinate these secret illegal meetings not put the board at risk of having any decision they make to close schools, instantly overturned? They can’t. And, the total page count of both their briefs equals mine. Yet, they miss the point of the special protections the sunshine laws are supposed to provide.

thumbnail of Brief Rule 65 and Disband.021218

The more competent response filed by the private attorney for the district. Still wrong.

thumbnail of Brief of defendants 31861677

The city filed for the school board. It’s short, and harmless

David beats Goliath. Just not this David

It was close again, as it was when Turner beat Dixon, and when McLin beat Turner. Gary Leitzell did it with less money than anyone, being outspent 10-1 at least. When we both turned in our petitions, Gary marveled at how both of us had 80%+ of our signatures valid, while the incumbents had around 60%.

The paper has unofficial results:

According to final, unofficial totals from the Montgomery County Board of Elections, Leitzell had 51.5 percent of the votes to McLin 48.5 percent for McLin, a Democrat. That amounted to a margin of 14,923 votes to 14,045 for McLin, a difference of 878 votes.

via Leitzell pulls off upset of McLin.

My numbers aren’t worth mentioning- getting beat by big numbers, but, when you consider I spent a third of what Gary did, in a three-way race, my less than 50 cents a vote is a major accomplishment.

To those of you who voted for me, thank you. To those who helped, an even bigger thank you- especially, to Gary’s people who also passed out my literature. So many of you were very kind to me tonight.

For the first time in as long as I’ve lived in Dayton, I feel we finally have someone on the commission who is genuinely interested in helping us make our community succeed. For a change, I believe we’ll be listened to, and actually get an answer from the dais when we go to a commission meeting.

The practices of secret illegal meetings will be halted, which has been my main goal in running. There wasn’t a candidates’ night where I didn’t try to drive home that message- Gary was the only one who listened.

I find it disheartening that Rhine McLin decided to disappear, after at least 20+ years of service. She typically has been a gracious and humble person, who would send thank-you letters to those who ran and lost- for exercising their right to run. I’ve gotten those letters in the past and marveled at her compassion. I can’t say that I think she has done Dayton any favors by the way she ran her final campaign, but, it is a lesson to learn from for all- negativity never works here.

Which leads to me. I’ve been called negative for my criticism and attempts to unmask the inner workings of our city. It isn’t meant to be negative- it’s meant to provoke thought and a conversation. I plan to continue my efforts, but with less frequency, as I have to work on rebuilding my business which suffers each time I run for office.

For those of you who are regular readers, you understand what and why I do it. For those of you who’ve only found this site recently, stick with it. I can’t do it without you- especially, those who rise to my defense, when things get cantankerous in the comments.

There will be another election, but I don’t want to think about it now.

And while I failed to get elected, I did win at raising the questions of where our city will be going. It’s not going in the direction it was before, and that made all this hard work worthwhile.

If you have a sign- or see one, please pick it up and drop them by the office- that’s a huge job I’m not looking forward to right now (I’m most looking forward to sleep). I’ll need them again.

And, keep your eyes on Qbase, which has another round of layoffs today. This site will continue as the watchdog on corporate welfare as a bad investment by government. By the time the next election comes up, maybe a few more of you will understand me better- or not.

Thank you Dayton, for opting for change. It’s been long overdue. Dayton Mayor Gary Leitzell – get used to saying it.