Montgomery's Odd Legal Research

Auditor Betty Montgomery wants to know if she can audit White Hat Management's books. Actually, she probably doesn't want to know. She's pretty much avoided knowing up until now. But put against the wall on the issue, she has pulled one of the oddest manuvers I've seen in government law.

First the background. While she relentlessly pursued for-profit management companies for Oriana House at the behest of her political ally Alex Arshinkoff, Montgomery has avoided until now doing the same thing to White Hat -- run by Concerned Citizen and Republican uber-benefactor David Brennan. This week Sen. Teresa Fedor (D-Toledo) made a second request for an audit of White Hat's books. Montgomery has been publicly fretting about a very real difference in the statute that authorizes oversight of for-profit management companies of alternative corrections facilities like Oriana and the one that authorizes oversight of the constellation of entities that make up the charter schools system.

Several observers, including House Speaker Jon Husted who authored the charter oversight bill – have said the difference isn’t significant, that she has clear authorization. So now, in an apparent Friday afternoon move – she has requested legal guidance . . . from Husted.

In all my years of working in government and following government law, I’ve never heard of an official seeking legal guidance from a bill’s author, especially when that author isn’t even a lawyer. The law allows any public official to ask for a legal opinion from the attorney general’s office. Such an opinion would be what is called persuasive (as opposed to controlling) legal authority if the issue is litigated in court. Basically it means that the court can rely on the opinion if it chooses to, but isn’t bound by it.

Ohio law specifically disfavors relying on evidence of legislative intent – evidence that the lawmakers wanted the bill to mean X. Courts are supposed to adjudicate based on what the law says, not what the authors hoped it would say. And generally when a court considers evidence of intent, it’s evidence generated at the time the legislation is proposed, not evidence from much later. I can’t imagine a court admitting Husted’s opinion, much less giving it weight.

So, why Husted? Presumably because she doesn’t trust an opinion from Attorney General Jim Petro – Petro hates Arshinkoff. I don’t know the precise relationship between Arshinkoff and Brennan, but given Brennan’s Republican largess, AA can’t be happy about an audit.

It worries me that the fix is in. While Husted has previously said he thinks the law supports an audit of White Hat, he said after the latest development that he will talk to Montgomery before speaking publicly. Normally SOP, but he’s already spoken publicly. Does he think he’s going reach an “understanding” with Montgomery about what his law means?

Meanwhile, today’s PD runs one of the more tone-deaf election stories I’ve seen in some time on the AG’s race – already declaring Montgomery the winner in November. Dann and Chandra have so much ammo stockpiled on Montgomery they could run out a presser a day for the first month. She will be running as the Republican establishment’s darling in a year when the Republican establishment is mud.

This latest move should confirm to anyone concerned about charter schools that she can’t be trusted to oversee them. One more reason to vote for a change.