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Mahoning County assistant prosecutor’s whistleblower case reversed

Legal News Reporter

Published: October 24, 2019

A former Mahoning County assistant prosecutor who claimed he was terminated in retaliation for reporting misconduct by a fellow colleague should be given the chance to prove his case to the State Personnel Board of Review, according to an appellate judge panel.

Martin Desmond appealed the October 2018 judgment of the Mahoning County Common Pleas Court that affirmed the decision of the SPBR to dismiss the appeal of his termination by the prosecutor’s office.

In his SPBR appeal, Desmond claimed that he was fired in April 2017 for making a report about fellow assistant prosecutor Dawn Cantalamessa’s handling of a murder case and a related obstruction of justice case.

The SPBR, however, determined that Desmond failed to satisfy the procedural threshold for seeking whistleblower protection under R.C. 124.341 and, for that reason, the SPBR concluded that it did not have jurisdiction to consider his case.

The 6th District Court of Appeals panel – sitting by assignment of the Ohio Supreme Court’s chief justice – recently found Desmond’s argument had merit.

Under R.C. 124.341, an employee seeking to establish that his or her employer’s action was in retaliation for a whistleblower activity must first show that he or she (1) filed a written report, (2) with his or her supervisor, appointing authority, state inspector general, or other appropriate legal official, (3) that identifies “a violation of state or federal statutes, rules, or regulations, or the misuse of public resources.”

Sixth District judges found the SPBR imposed additional requirements not contained in the statute, and improperly excluded reported violations of the Ohio Rules of Professional Conduct from whistleblower protection under R.C. 124.341. The case was reversed and remanded.

Chief Assistant Prosecutor Paul Gains said he terminated Desmond’s employment for violations of various statutes and rules of professional conduct by (1) engaging in communications with adverse parties; (2)knowingly making himself a witness to a lawsuit against the county, his superior, and

a fellow assistant prosecutor; (3) uttering false claims of ethical violations against a fellow assistant prosecutor, causing a grievance to be filed against her; (4) wrongfully making false and misleading allegations against a fellow assistant prosecutor to adverse parties; (5) failing to communicate to the appropriate supervisor his belief that a fellow assistant prosecutor engaged in misconduct; and (6) using county equipment and assets to conduct research to assist parties adverse to his client, his superior, and a fellow assistant prosecutor.

Desmond argued his co-worker mishandled two Mahoning County criminal cases: State v. Marquan White (2015-Ohio-538) and State v. Kalilo Robinson (2016-Ohio-342).

In the first case, Marquan White was charged with murder. Kalilo Robinson was the state’s key witness. He provided a sworn statement against White and agreed to testify against him. Desmond was originally assigned to White, but it was later reassigned to Cantalamessa and assistant prosecuting attorney Shawn Burns.

After indictment, Robinson refused to testify. Desmond claimed Cantalamessa consulted him because she wanted to pursue charges against Robinson for obstruction of justice and tampering with evidence after his unexpected refusal to cooperate.

Desmond said he told her filing charges would be improper because the court had not granted Robinson immunity or ordered him to testify under R.C. 2945.44.

“In essence, Desmond believed they would be indicting Robinson for exercising his right to remain silent,” Sixth District Judge Christine Mayle said in her opinion.

Cantalamessa ignored Desmond’s advice and Robinson was indicted by the grand jury.

Robinson’s attorney, James Wise, allegedly told Desmond the indictment was problematic because the grand jury transcripts and bill of particulars showed the elements of the offenses were not met. Desmond said he agreed with Wise, and told him to raise his concerns with Gains.

Cantalamessa voluntarily dismissed the indictment without prejudice, but Robinson remained in jail. Desmond said he believed Robinson was being held unlawfully, claiming Cantalamessa argued for Robinson’s continued detention as a material witness because jailhouse phone calls showed he intended to flee to another state to avoid testifying against White. Desmond and Wise disagreed with Cantalamessa’s interpretations of the calls. The 7th District granted Wise’s petition for writ of habeas corpus.

Several months later, Wise filed a section 1983 action for prosecutorial misconduct against Cantalamessa. Meanwhile, Desmond advised Burns and Cantalamessa not to dismiss White, saying an Ohio Supreme Court decision had released a decision that could help secure Robinson’s testimony against White. Cantalamessa told Desmond she had already done so at Gains’s request due to Robinson’s lack of cooperation, the section 1983 action and Robinson’s filing of a grievance.

The administrative law judge found that Desmond’s statements against his co-worker were not made in good faith because he had months to submit a written report, but did so only after Robinson filed a civil suit against Cantalamessa and his supervisor threatened him with insubordination.

But the appellate panel found the trial court erred in affirming SPBR’s dismissal of Desmond’s appeal for lack of jurisdiction on those grounds.

“R.C. 124.341 contains no time frame for making a report, it contains no requirement that a supervisor be unaware of the conduct reported, and it does not specify that the protections of the statute will be lost if an employee is directed by his employer to make a report,” Mayle wrote. “We also find that R.C. 124.341 does not exempt from whistleblower protection reports of attorney misconduct under the Ohio Rules of Professional Conduct.”

Sixth District judges Arlene Singer and Thomas Osowik concurred.

The case is cited Desmond v. Mahoning Cty. Pros. Office, 2019-Ohio-4089.