Mark Kindt wrote:My general impression is that sooner or later all of this is going to blow-up in their collective faces. I'm looking forward to seeing the next annual audit report for the City to see how they finesse the false affidavit filed in Skindell v. Madigan. They are now stuck between the proverbial rock and the hard-place.
Usually the CAFR is done by mid June. Last year, the State Auditor did not sign off on it until August 30th.
Having spent a significant portion of my career suing auditors for malfeasance and having once worked in an international accounting firm then known as one of the "BIG EIGHT", I am going to go out on a limb and suggest that the 2016 Lakewood City CAFR will have many "vague, overly broad and ambiguous" statements in it.
Below is an example of Mr. Kindt's wise observation about Jenn Pae and Kevin Butler being between a rock and a hard-place---they claim don't understand what "substantiates" numbers in the 2015 CAFR that Summers and Pae approved last year.
Perhaps many emails like the one below have been withheld from Councilman Anderson to the end that he is confused at to how futile it is has been to try to educate Butler and Pae and expect to get public records.
I have not received any responsive records to the 20 PRRs mentioned below.
At best, Butler is being obtuse. Why hasn't he responded?
From: Brian Essi
To: "Butler, Kevin" <Kevin.Butler@lakewoodoh.net>
Sent: Thursday, March 9, 2017 8:24 AM
Subject: Re: PRR 226-323 and Amended PRR 313 - 314
Dear Records Custodian Butler,
In your email below of March 8, 2017 at 9:37 am, you erroneously assert: "because the records you seek are records that relate to the product and conclusions of the city’s independent auditor, they are records not maintained by the city and in any event are not public records. See R.C. 4701.19(B)." I did not seek the non public records made by the auditors or made in an audit and I did not seek records "that relate to" non public records. Further, my requests are neither broad nor vague.
Rather I sought public records that substantiate specific numbers that have been audited and presented in a public record, i.e. the final audit. Anyone familiar with the rules of accounting and audits understands that the books and records of the client are the records that are audited, and those records remain the property of the client. An "audit" is defined as "an official examination and verification of accounts and records, especially financial accounts." The accounts and records examined by the auditor belong to the client and substantiate the numbers in the audit which are in the pure sense the client's numbers. So my request is very clear: I seek public records created by the city under the direction of Finance Director Pae, and not records, as you suggest, made by or at the direction of the auditors.
If it helps you understand this concept better, as a lawyer, you understand that if your client gives you a legal documents and physical evidence to review and form opinions about, the documents and evidence remain the property and records of the client, not you as the lawyer.
Also, if there is still any confusion about this subject, please refer to the various pronouncements of the Governmental Accounting Standards Board website for further guidance: GASB Home By way of examples: "Public accountability is based on the belief that the taxpayer has a "right to know.." "The concept underlying the definition of the financial reporting entity is that elected officials are accountable to their constituents for their actions." The records I seek as a constituent were created by the city in response to actions of elected officials concerning Lakewood Hospital, not the city auditors.
I hope this helps your understanding of public accounting matters to correct the erroneous conclusion that the city somehow lacks public records that substantiate the figures in its own audited financial statements related to the sale Lakewood Hospital to the Cleveland Clinic by the City of Lakewood public officials.
Therefore, kindly produce the public records responsive to PRRs 297, 298, 299, 300, 301, 302, 303, 304, 305, 306, 307, 308, 310, 311, 312, 315, 316, 317, 318 and 319.
Sincerely,
Brian J. Essi
From: "Butler, Kevin" <Kevin.Butler@lakewoodoh.net>
To: Brian Essi
Cc: "Petrus, Jeannine" <Jeannine.Petrus@lakewoodoh.net>
Sent: Wednesday, March 8, 2017 9:37 AM
Subject: RE: PRR 226-323 and Amended PRR 313 - 314
Mr. Essi:
In Nos. 297, 298, 299, 300, 301, 302, 303, 304, 305, 306, 307, 308, 310, 311, 312, 315, 316, 317, 318 and 319 of your Sept. 20, 2016 public records requests, you ask for the following:
§ All records that substantiate the detail of the $11,842,752 of 2015 “Operating Grants and Contributions” on page 12 of the Independent Auditor’s Report as part of the City of Lakewood, Ohio Comprehensive Annual Financial Report for the Year Ending December 31, 2015: https ://ohioauditor.gov/auditsearch/Reports/2016/City Lakewood 15- Cuyahoga.pdf
§ All records that substantiate the detail of the $5,459,955 of 2014 “Operating Grants and Contributions” on page 12 of the Independent Auditor’s Report as part of the City of Lakewood, Ohio Comprehensive Annual Financial Report for the Year Ending December 31, 2015: https://ohioauditor.gov/auditsearch/Reports/2016/City Lakewood 15- Cuyahoga.pdf
§ All records that substantiate the detail of the $5,553,183 of 2015 “Capital Grants and Contributions” on page 12 of the Independent Auditor’s Report as part of the City of Lakewood, Ohio Comprehensive Annual Financial Report for the Year Ending December 31, 2015: https://ohioauditor.gov/auditsearch/Reports/2016/City Lakewood 15- Cuyahoga.pdf
§ All records that substantiate the detail of the $1,215,014 of 2014 “Capital Grants and Contributions” on page 12 of the Independent Auditor’s Report as part of the City of Lakewood, Ohio Comprehensive Annual Financial Report for the Year Ending December 31, 2015: https://ohioauditor.gov/auditsearch/Reports/2016/City Lakewood 15- Cuyahoga.pdf.
§ All records that substantiate the $3,286,870 increase that was “due to capital contributions from the master agreement with Lakewood Hospital Association” referred to on page 14 of the Independent Auditor’s Report as part of the City of Lakewood, Ohio Comprehensive Annual Financial Report for the Year Ending December 31, 2015: https ://ohioauditor.gov /auditsearch/Reports/2016/City Lakewood 15- Cuyahoga.pdf.
§ All records that substantiate the amount of “capital contributions from the master agreement with Lakewood Hospital Association” referred to on page 14 of the Independent Auditor’s Report as part of the City of Lakewood, Ohio Comprehensive Annual Financial Report for the Year Ending December 31, 2015: https://ohioauditor.gov/auditsearch/Reports/2016/City Lakewood 15- Cuyahoga.pdf.
§ All records that substantiate the $6,382,797 increase that was “due to receipts from the sale of Lakewood Hospital to Cleveland Clinic as recognition of early termination of lease agreements” referred to on page 14 of the Independent Auditor’s Report as part of the City of Lakewood, Ohio Comprehensive Annual Financial Report for the Year Ending December 31, 2015: https://ohioauditor.gov/auditsearch/Reports/2016/City Lakewood 15- Cuyahoga.pdf.
§ All records that substantiate the “receipts from the sale of Lakewood Hospital to Cleveland Clinic as recognition of early termination of lease agreements” referred to on page 14 of the Independent Auditor’s Report as part of the City of Lakewood, Ohio Comprehensive Annual Financial Report for the Year Ending December 31, 2015: https://ohioauditor.gov/auditsearch/Reports/2016/City Lakewood 15-Cuyahoga.pdf.
§ All records that substantiate the receipt of the “$6.6 million as recognition of early termination of the 1996 lease” as an asset “transferred to the City from (LHA) on December 22, 2015” referred to on page 19 of the Independent Auditor’s Report as part of the City of Lakewood, Ohio Comprehensive Annual Financial Report for the Year Ending December 31, 2015 https://ohioauditor.gov/auditsearch/Reports/2016/City Lakewood 15- Cuyahoga.pdf.
§ All records that substantiate the detail of that portion of the $11,770,174 of revenues of the Lakewood Hospital Fund that were “due to receipts from the sale of Lakewood Hospital to Cleveland Clinic as recognition of early termination of the 1996 lease agreements” referred to on page 16 of the Independent Auditor’s Report as part of the City of Lakewood, Ohio Comprehensive Annual Financial Report for the Year Ending December 31, 2015 https://ohioauditor.gov/auditsearch/Reports/2016/Ci ty Lakewood 15- Cuyahoga.pdf.
§ All records that substantiate that “[o]n December 22, 2015 the city received title from LHA for the medical office building located at 14601 Detroit A venue, the parking garage located at 1422 Belle Avenue and the Community Health Center located at 1450 Belle A venue” referred to on page 88 of the Independent Auditor’s Report as part of the City of Lakewood, Ohio Comprehensive Annual Financial Report for the Year Ending December 31, 2015 https://ohioauditor.gov/auditsearch/Reports/2016/City Lakewood 15- Cuyahoga.pdf.
§ All records that substantiate that “LHA returned control of seven residential properties on Belle Avenue and St. Charles Avenue to the City and these properties are recorded as an asset held for resale at year end.” referred to on page 88 of the Independent Auditor’s Report as part of the City of Lakewood, Ohio Comprehensive Annual Financial Report for the Year Ending December 31, 2015 https://ohioauditor.gov/auditsearch/Reports/2016/City Lakewood 15- Cuyahoga.pdf.
§ All title reports or title insurance policies created or received in 2015 or 2016 evidencing “LHA returned control of seven residential properties on Belle A venue and St. Charles Avenue to the City and these properties are recorded as an asset held for resale at year end.” referred to on page 88 of the Independent Auditor’s Report as part of the City of Lakewood, Ohio Comprehensive Annual Financial Report for the Year Ending December 31, 2015 https://ohioauditor.gov/auditsearch/Reports/201 6/City Lakewood 15- Cuyahoga.pdf.
§ All records that substantiate that ‘‘the City will retain ownership of the existing Lakewood Hospital site and all other property currently leased to LHA” referred to on page 88 of the Independent Auditor’s Report as part of the City of Lakewood, Ohio Comprehensive Annual Financial Report for the Year Ending December 31, 2015 https://ohioauditor.gov/auditsearch/Reports/2016/City Lakewood 15- Cuyahoga.pdf.
§ All records that substantiate that the “existing Lakewood Hospital site and all other property currently leased to LHA” referred to on page 88 of the Independent Auditor’ s Report as part of the City of Lakewood, Ohio Comprehensive Annual Financial Report for the Year Ending December 31, 2015 https://ohioauditor.gov/auditsearch/Reports/2016/City Lakewood 15- Cuyahoga.pdf is listed as an asset on the Independent Auditor’s Report in 2014 and 2015.
§ The list or schedule of property substantiating the $6,217,842 of “Land” on page 18 of the Independent Auditor’s report as part of the City of Lakewood, Ohio Comprehensive Annual Financial Report for the Year Ending December 31, 2015 https://ohioauditor.gov/auditsearch/Reports/2016/Ci ty Lakewood 15- Cuyahoga.pdf.
§ The list or schedule of property substantiating the total 2015 “Land Improvements” of $6,240,503 on page 18 of the Independent Auditor’s report as part of the City of Lakewood, Ohio Comprehensive Annual Financial Report for the Year Ending December 31, 2015 https :/ I ohioauditor.gov/auditsearch/Reports/2016/Ci ty Lakewood 15- Cuyahoga.pdf.
§ The list or schedule of property substantiating the total 2014 “Land Improvements” of $3,347,296 on page 18 of the Independent Auditor’s report as part of the City of Lakewood, Ohio Comprehensive Annual Financial Report for the Year Ending December 31, 2015 https :/ / ohioauditor.gov/auditsearch/Reports/2016/City Lakewood 15- Cuyahoga.pdf.
§ The list or schedule of property substantiating the total 2015 “Buildings and Improvements” of $24,914,353 on page 18 of the Independent Auditor’s report as part of the City of Lakewood, Ohio Comprehensive Annual Financial Report for the Year Ending December 31, 2015 https://ohioauditor.gov/auditsearch/Reports/2016/City Lakewood 15- Cuyahoga.pdf.
§ The list or schedule of property substantiating the total 2014 “Buildings and Improvements” of $23,374,641 on page 18 of the Independent Auditor’s report as part of the City of Lakewood, Ohio Comprehensive Annual Financial Report for the Year Ending December 3 1, 2015 https ://ohioauditor.gov/auditsearch/Reports/2016/City Lakewood 15- Cuyahoga.pdf.
Because these requests seek records “substantiating” another thing, the requests are vague, overly broad and/or ambiguous, and are, to that extent, therefore denied. The Ohio Supreme Court has held that a public records request must describe the records desired with reasonable and sufficient clarity and not be overly broad and ambiguous. State ex rel. Morgan v. New Lexington, 112 Ohio St.3d 33, 2006-Ohio-6365, ¶29, quoting State ex rel. Fant v. Tober, 68 Ohio St.3d 117 (1993). A request for “any and all records relating to a particular person or topic is an inappropriate public records request because it fails to identify the particular records sought.” State ex rel. Dillery v. Icsman, 92 Ohio St. 3d 312, 2001-Ohio-193; accord, Ohio Sunshine Laws: An Open Government Resource Manual 2016, p. 13.
A governmental office has no duty to “seek out and retrieve those records which would contain the information of interest to the requester.” Fant v. Taber, 1993 Ohio App. LEXIS 2591 at *4 (8th Dist. Apr. 28, 1993); aff’d 68 Ohio St.3d 117 (1993). Finally, a public office is under no obligation to search for records containing selected information. State ex rel. Thomas v. Ohio State University, 71 Ohio St.3d 245 (1994). Based on the manner in which the City ordinarily maintains and access the public records it keeps, it was unable to identify records responsive to these requests. State ex rel. Dehler v. Spatny, 127 Ohio St.3d 312, 2010-Ohio-5711; State ex rel. Morgan v. Strickland, 121 Ohio St.3d 600, 2009-Ohio-1901; State ex rel. Zauderer v. Joseph, 62 Ohio App.3d 752 (10th Dist. 1989).
Finally, because the records you seek are records that relate to the product and conclusions of the city’s independent auditor, they are records not maintained by the city and in any event are not public records. See R.C. 4701.19(B).
This completes our response to your requests noted above.
Best wishes,
Kevin M. Butler, Director of Law
City of Lakewood | Law Department
(216) 529-6034
kevin.butler@lakewoodoh.net
