The Observation Deck

Mark,

Thank you for your cogent analyses and identification/clarification of more of the legal issues the City now faces because of its bad behavior and horrible decisions.

I have previously described how the actions of the city administration have increased its legal liabilities.

There is one more problem that needs to be described. The city has revised its records retention policies so that records are retained for shorter time periods.

This creates three problems:

1. It provides an incentive for potential litigants to bring cases sooner fearing loss of evidence.

2. It provides an incentive for potential litigants to seek damages for spoliation of evidence.

3. In Ohio, this can actually be a separate claim for recovery under tort law.

There is one more problem that needs to be described. The city has revised its records retention policies so that records are retained for shorter time periods.

Might potential evidence be destroyed?

Yes, that is my point exactly.

Legal counsel for a future securities law litigation against the city would attempt to determine if records/evidence had been improperly disposed of. They would then be able to amend their complaint to add a claim for damages related to that spoliation.

I have fully described many aspects of the underlying securities law claim in this series to demonstrate that the city administration has increased its legal liability risk through the problems described.

Mr Kindt

As you mentioned, misleading statements about the financial health of the city may be actionable.

What do you think of this latest statement by our city finance director, made on Dec 20 to a newspaper reporter?

We're in a good fiscal position," city Finance Director Jennifer Pae said.

From:
http://www.cleveland.com/lakewood/index ... ses_1.html

In the context of other statements made since January 2015 and, particularly, the materially false affidavit filed in Skindell v. Madigan, it is my opinion that the city administration has failed to fully evaluate and consider its duties to comply with the federal securities laws.

Mr. Kindt, thanks for the excellent analysis.

It seems clear that the Mayor and his friends on the Lakewood Hospital Board with the help some members of Council and employees of the Cleveland Clinic engaged in a secret conspiracy to destroy Lakewood Hospital and transfer its assets to private groups. Since all of the assets of the Hospital were City assets the efforts to close down the Hospital and disburse its assets should have been open to the public from the very beginning. They were not.

Instead, the decisions were made in secret. As you made clear that is a clear violation of the law.

But, so what? State agencies, the State Attorney General, local government, County government, newspapers and civic leaders are all afraid to act. It's not just fear; many of the players are set to get a piece of the action.

What are the options when all levels of government are willing to acquiesce to clear violations of the law?

I will be the first to admit that the more I know the less I understand; I will never understand why it was so important to so many people to move 1,500 jobs to Lorain County, to close a profitable hospital, to transfer City assets to private organizations and to give the Clinic a monopoly on healthcare.

Maybe the question is also the answer.

Bill Call wrote:Mr. Kindt, thanks for the excellent analysis.

It seems clear that the Mayor and his friends on the Lakewood Hospital Board with the help some members of Council and employees of the Cleveland Clinic engaged in a secret conspiracy to destroy Lakewood Hospital and transfer its assets to private groups. Since all of the assets of the Hospital were City assets the efforts to close down the Hospital and disburse its assets should have been open to the public from the very beginning. They were not.

Instead, the decisions were made in secret. As you made clear that is a clear violation of the law.

But, so what? State agencies, the State Attorney General, local government, County government, newspapers and civic leaders are all afraid to act. It's not just fear; many of the players are set to get a piece of the action.

What are the options when all levels of government are willing to acquiesce to clear violations of the law?

I will be the first to admit that the more I know the less I understand; I will never understand why it was so important to so many people to move 1,500 jobs to Lorain County, to close a profitable hospital, to transfer City assets to private organizations and to give the Clinic a monopoly on healthcare.

Maybe the question is also the answer.

Mr. Call,

You may be right about the question/answer thing, but here is may take:

1. It starts with a low IQ "cowboy" mayor who has a propensity for dishonesty.
2. Add Bullock, lower IQ than the mayor, who sought to rub elbows with perceived big wigs to feather his own political future--also dishonest.
3. Add Madigan, lower IQ than the two others--became captive of others.
4. Add a group of fake trustees---most, like Bullock, were there to pad their resumes and/or further their private businesses interests.
5. Add a the largest employer in the region and largest fake "charity" in the state that has enormous federal, state, county and local influence.
6. Add 5 more council members mostly aligned with the mayor's club and all ill-equipped to sift through the lies to find the truth and/or too weak to stand up to 1 through 6 above.

So my top three answers are: Self-interests, Low IQs, and weakness.

Is it any wonder that Dr. Terry Kilroy said on December 21, 2015 that with the vote that day by Council, Lakewood had become "spiritually impoverished."
A great 5 minute speech about the damage done.
https://youtu.be/MLjszy9P_jw?t=2h21m49s

Bill Call wrote:But, so what? … What are the options when all levels of government are willing to acquiesce to clear violations of the law?

I think Bill has voiced an important question. I can see two or three answers, though I hope others will feel free to add their own thoughts.

First, it appears to me that relevant parties disagree over what constitutes clear violation of the law, here. (It could be that everyone recognizes violation of the law and is merely denying it for reasons such as those Bill suggested; my own guess is that some sincerely believe that the letter of the law has at least been respected.) This is what we have courts for, and those courts have yet to rule that the law has (or has not) been respected on any of the relevant questions presented to them, to date. Meanwhile, Mr. Kindt suggests that even more questions of respect for the law could merit recourse to the courts. It may be that no appropriate plaintiff will ever pursue those questions, but my sense is that this still constitues further option at present; obviously the courts maintain their own relatively slow pace in determinig that something is a "done deal" and pointless to examine further.

Second, for those dissatisfied about the extent to which other levels of government have adopted a consensus that this or that contested activity is fine, the obvious option is to challenge incumbent officeholders in future elections. This, too, demands considerable persistence; it's natural enough that persons with a specific dissatisfaction often resort first to petitioning the government in power for redress, by one means or another. Some times, though, an issue reaches the point of irreconcilable differences. In that event, the solution to dissatisfactory government is new government.

Meanwhile, I believe the third option is to continue standing up for what is accurate and what it just, as best as one can determine them. "The truth and a lie are not 'kind of the same thing,'" and if an argument is false then no number of official sign-ons can ever change that. The only appropriate response to peer pressure is, perhaps, simply to resist it and keep resisting it even when it seems to be prevailing; giving in to what seems to be winning is, after all, the only way peer pressure succeeds.

So those are the options that I see, for those looking for some. Nothing particularly inventive, and I apologize if I'm just belaboring the obvious. Nothing particularly easy, but I think Lakrewood arguments are now well past any easy options.

Mr. Kuhns, thank you for articulating your points, they are well-taken. Indeed the challenge is to find the course/s of action that resonate, satisfy, and improve the situation. And jail, too.

Mr. Call, indeed I too cannot fathom why it is so important to ship jobs and revenue out of the city, when there are far better options. The harm is great. The only thing that seems to explain is that this cabal is desperately wedded to finding land and opportunity to develop sh*t. West End, LH, Nature's Bin, school properties, post office, etc. Why so desperate? Who are they enabling? What do they get in return?

Mr. Essi, low IQ perhaps. But we all know any number of genial and harmless idiots. This is some sauce of low IQ and greedy evil in positions of power. Maybe greedy needs to be in all CAPS? And...how do these *sshats all find each other?

I would like to add some further comments in light of the thoughtful comments above.

There are three cases in court that still need to play-out to their respective finishes. I believe that other avenues of civil litigation remain open to parties that were excluded from participation in the sham "bidding" process conducted by LHA. I do expect to see further ligation against the city.

I write, because, like Mr. Kuhns (able author that he is), I too believe that the "framing of misinformation" can only be responded to with truth.

Like many, I spent 2015/2016 attempting to alert other levels of government to the problems associated with the hospital deal. I was both surprised and chagrined by their total lack of interest. This issue may be the most disconcerting of all. It has considerably changed my viewpoint on citizen access to government resources. To put it clearly, I have never ever been "blown-off" by so many state and federal agencies simultaneously.

Finally, to address Mr. Essi's point. This is not about ignorance or low IQs. The effort to achieve what was done was entirely successful. It was well-lawyered. It represents one of the largest quasi-legal transfers of public resources into private hands that I have ever personally witnessed.

Let's not pretend that the city administration did not know what it was doing.

To Mark Kindt et al:

Hear, Hear!!

In the last week, refuse has been called to city hall numerous times to pick up tons of bags of shredded paper! How much evidence will be left? Do we really think they are going to listen to the courts and not get rid of any documentation? Please!

We all know the reasons why they were in such a hurry to change the record retention ordinances!

The answer to the question of whether or not the City of Lakewood carelessly ran the risk of violating federal securities law under the SEC Harrisburg Opinion now has some radically new evidence.

In the attached document from the recent production of documents from the City, at page 1316, Mr. Haber agrees with Mr. Gorton that the $120 Million figure as a PR point is false. Gorton uses the word "bogus". Each agrees that this number should not be used.

Check-out who else is on the email chain.

The highlighting in the attachment is mine.