Friday, May 09, 2008

Marc's Mess: We Have to Wait for Fifth Street

Despite the promise in the letter to serial screwup AG Marc Dann, articles of impeachment will be some time in coming. The House Republicans have Rep. Bill Batchelder looking into it and some comments from the Dem leadership reported in the Dispatch sound equivocal. Bloggers on the left and right are getting bent about backtracking.

Since summer is approaching, the World Series of Poker will start up soon. It's a good a time as any to review a couple truths about Texas Hold 'Em. If you bet big based on your hole cards and your opponent folds, the hand is over. If you bet big and your opponent calls, the hand goes on. If your opponent continues to call, the hand will go on until the dealer lays down the fifth common card ("The River," or "Fifth Street.")

And if you've been called on a big bet, you should think twice about betting big again until you have an idea what your opponent has.

As it is in poker, so it is in Marc's Mess. When Strickland bet big after the Espy report he wasn't exactly bluffing. He has a strong hand. The report outlines improprieties that led not only to a hostile environment for women, but a hostile environment for anyone with an unblackened soul. Dann meanwhile looks like he's holding about a nine high. But you never know. . .

While it offers a solid starting hand, the Espy report only begins to build the case against the AG himself. No pair of aces here. Thanks to his throwing Ed Simpson under the bus, Dann has a colorable argument that he was negligent in failing to prevent the excesses of his cronies, as opposed to actively complicit in those excesses. Based on that report alone, impeachment is a hard sell. Notwithstanding Connie Schultz's argument, the legislature is unlikely to embrace the standard that sex with a subordinate is per se impeachable. Too many legislators, erm, know someone who has gone there before.

The more salable candidates for a bill of impeachment run along two lines. The first is that Dann was far more in his friends' misdeeds than he's admitted. Somewhere in the blizzard of paperwork and subsequent reports is the allegation that complaints against Gutierrez were forwarded to Dann's office and pretty much disappeared into a void there. Mix an ongoing effort to violate workplace discrimination laws (even where those laws aren't technically criminal) and/or to cover up those violations along with everything else, and this starts to look more impeachable. Similarly, if evidence surfaces that Dann knew of Gutierrez's penchant for playing bumper cars with state vehicles and did nothing, we can sell that to the Legislature.

The second line of inquiry is whether Dann lied under oath when interviewed by Espy. In at least two spots, I am suspicious. First is the question of whether he lied about Jessica Utovich spending the night at the now-infamous condo1. To review, Dann initially says he doesn't remember, then in a subsequent sworn statement, amends that to say that he now remembers she did spend a night or two, though at that time couched it in terms that still preserved deniability about the affair.

It's all well and good for a witness to say he doesn't remember most of the time. Most of the time, that will work even if not actually true. And if it is true that Utovich only stayed the night a couple of times because it was late, it's at least conceivable that Dann wouldn't remember. But if she spent the night because that's when they engaged in the inappropriate part of their "inappropriate relationship," he certainly would remember that. To say he doesn't remember at that point puts us in Steve Martin territory.

A second possibility is that he lied in minimizing his involvement with the Gutierrez hire. I've outlined that case previously.

At this point we have limited information, but probably not enough to say unequivocally that Dann's transgressions are or should be impeachable. We need a few more cards on the table. We need, for instance, to hear from the Shiny-Faced Scheduler herself, and under oath. We need to drag Ed Simpson out from under the bus and see what he has to say. Open questions remain not only about what people know but also whether they are willing to divulge it. And until there are a few more cards under the table, an elected official speaking without reservation about impeachment does so recklessly.

Watching poker offers, among other things, an entertaining way to study how people make decisions based on incomplete information. So does the Dann drama.

1ModernEsquire is right to a point when he says that a deponent has the ability to review a deposition, but that's only part of the story. First, one generally reviews the transcript for errors in transcription. You can't change the record, only correct how it was recorded. Second, if Utovich spent the night on inappropriate-relationship-related business, his second statement suggesting that she did so only because it was late and she was there on actual AG business doesn't cure the deception, it perpetuates it.

Image courtesy of Wikimedia Commons.


Chris Baker said...

To me this is a real missed opportunity. If the hand had been finessed a little more we could have caught Dann and his minions up in the depositions. Now he is in full out lock down mode. (love the poker analogies, but I'm drawn to bridge more and more)

At this point I advise patience and a real investigation. I'm still betting that serious laws were broken, and when it comes to the AG there should be zero tolerance.

Anonymous said...

Spot on analysis Pho. Dann didn't hire a big time opposition research firm because he was going to go quietly. He is going to muckrake to find allegations that his actions with an underling were nothing out of the ordinary in Columbus. He is going to argue "selective prosection", or rather "persecution". And, he just may have a valid argument...

Anonymous said...

Pho, you're right about the two near-certain lies under oath. I'll suggest some more, and some other criticisms of Dann's role in all this, putting aside his affair. But first, I note that the press focused so much on the sex-gotchas that it seems they have not spent enough time studying the witness transcripts to find the inconsistencies. Reporting on the AG's lies is more relevant, to me, than nailing more sex details.

Dann's testimony seems highly implausible on these items:

1. He says he did not know Cindy Stankoski was an employee until she showed up at the condo. But both Cindy and Tony, who otherwise disagree on all the core disputes, agree that Cindy was identified as Tony's subordinate in the "Hawaiian pizza" conversation, when Tony and Cindy were still at Mitchell's.

This is relevant because it heightens the level of his poor judgment in inviting Tony to bring home Cindy, as opposed to his claim that he was simply not aggressive enough in sending her away.

2. He claims that he had nothing to do with transferring Vanessa Stout from General Services to IT, and even nothing to do with transferring Jessica Utovich from being his personal scheduler to the travel/finance job. Let's see -- you admitted the affair to your wife months ago, and then your mistress was coincidentally transferred away from such a close role. But it was your other staff who decided to move her, as part of a general evaluation of the scheduling function. Yeah, I buy that.

3. He minimizes his involvement in Stout's hire, and totally denies telling her to omit her theft convictions from her application. She says otherwise. At this point, on any he-said/she-said, I go with any of the "she"s involved over Dann.

4. He minimizes or shades all the other details, too. Mixing margaritas and bartending when Cindy and Tony arrived? No, drinking diet coke. Aware of your wife's chilly stares at Cindy, and that Ed talked to Alyssa about it? No, I never know about that. All of these things swirling around him, involving with long-time pals and roommates, and his wife talking to his managers, and he's the last to know?

Aside from these lies in the interview, I am struck by his pushiness in telling Espy to back off the tough questions. When Espy asked him again about helping Stout to get hired by omitting the convictions, he says he's offended by the question. He also pushed Espy off the Utovich questions, when he knew that they were relevant. In his Friday speech, he even admitted the connection between his own affair and how it set a tone for Tony's hostile environment.

Another whole area of inquiry: being a bad lawyer/manager on the whole area of harassment.

He's insisted that there's no financial liability because neither young woman was demoted or fired. Anyone who knows harassment law knows that you don't need a firing (or any "adverse employment action") to collect emotional distress damages for harassment.

Also, his admission speech, and even Espy's report, refers only to a hostile environment, but Tony's actions amount to quid pro quo harassment (and to hostile environment, too). Because Tony was a supervisor, and because it was quid pro quo, liability flows to the employer. By contrast, hostile environment by a co-worker does not get pinned on the employer without showing that they knew or should have known and failed to correct it.

He also blames the victims throughout his testimony, referring to Stankoski's "refusal" to file a complaint. That's garbage. If you know you have an employee who was almost certainly harasssed, you should know as a manager that the likely explanation for "refusal" to come forward is fear of her boss, especially when her boss is your own close, close friend. It was Dann's job to reach out and investigate, and to assure her she was safe, not to sit back and wait for her to get up the guts to take on the office's power players.

All in all, he portrays himself as a victim of bad hires at most, and admits as most to loose oversight. But the almost-certain truth is that he has been quarterbacking the coverup from day one. All of the e-mails that have been released show him to be very hands-on with all sorts of things, so there's no way he was not working with his roommates as they tried to keep this under wraps.

Despite all this, a real investigation is needed. It needs to be an outsider, and it needs to be thorough but prompt. Letting Dann drag this out is awful.

Anonymous said...

We don't need to find evidence of a crime to impeach.

Also, there's a reason for selective enforcement, i.e. the very nature of the job of Ohio Attorney General.

While President Clinton had sex with a subordinate, he didn't actually hire her, and there was no raise or promotion based on workplace favoritism, nor was there a threat of being fired or demoted. Thus there was no harassment. Nevertheless, President Clinton did lose his license to practice law for lying under oath, but one does not have to be a lawyer to remain president. Also, it's not the direct responsibility of the President to investigate harassment charges, but clearly no harassment is involved.

As Ohio Attorney General, Marc Dann has a responsibility to investigate harassment charges. It would be a lie to claim he didn't know it was taking place, for, not only was it happening at work, it was happening in his own condo. If he truly couldn't put two and two together, he is unfit to be Attorney General. If he had knowledge of harassment (I'm sure he could put two and two together, in fact I'm sure he had full knowledge of what was going on), then, by virtue of his responsibilities as AG, he has disqualified himself from the position. Also, if he lied, and our whole system of justice and law enforcement is built on telling the truth, which an attorney should know full well, then he should have his license to practice law yanked, much like Pres. Clinton, and with a yanked license, he cannot possibly be an Attorney General.

Furthermore, the standard for impeachment, according to the Ohio Constitution, is whatever bar the General Assembly sets. It can be arbitrary. The GA knows that the AG is a rascal unfit for office, and he can be impeached without proving anything except for proving that a majority of the Ohio House wants him out and two-thirds of the Ohio Senate wants him out. Federal impeachment standards do not apply. The General Assembly should feel no compunction to have the Ohio impeachment process mirror the Federal impeachment process. There is a great deal of latitude the General Assembly has at their disposal, and I urge them to take advantage of that.

If the Columbus politicians want him out just for the simple reason that he'll damage their re-election chances if he stays in, they could make that the standard for impeachment, if they want to. The Ohio Democrat leadership already promised impeachment, and the Ohio Republican Party Deputy Chair already promised to hold officeholders accountable if they weren't in favor of ousting him. While the Dem leaders would welcome a Dann resignation, they might have a difficult time demonstrating that they want to oust him if they don't impeach, as they promised.

Dann has no recourse if the Ohio Senate votes by two-thirds majority to oust him. He can scream unfair, he can say the evidence is lacking, but he has no power to file suit over it, let alone appeal it, as this is not a matter determined by the courts whatsoever. When Clinton faced impeachment at the Federal level, the Supreme Court Chief Justice presided over the hearing. No officer of the judicial branch has any role in Ohio impeachments, so Dann cannot avail himself of the courts.

Anonymous said...

By the way, I was in favor of impeaching Clinton. I think some U.S. Senate Republicans may have had a secret motive for voting not to impeach: They didn't want Al Gore to be President, and in hindsight, being President probably would have put Gore over the top in the Electoral College in the 2000 election, so they probably feel vindicated that they let Clinton stay in office.

Anonymous said...

It is ridiculous to suggest that one should impeach an elected official based on a standardless whim. Impeachment of an elected official should take more, because if it does not, then it sets a dangerous precedent - and one that could discount the will of the electorate - regardless of how stupid the electorate is.