Tomlinson: Sheriff has 'personal,' not professional objection to constables

Lorain County Prosecutor J.D. Tomlinson said Tuesday that county Sheriff Phil Stammitti used "personal and not professional" reasons when he refused to commission Tomlinson's criminal investigators last year. The controversy has been brewing since Tomlinson took office in January 2021 after defeating Stammitti's longtime friend, former county prosecutor Dennis Will, in the 2020 Democratic primary. It boiled over last week when Stammitti took Tomlinson to task in an interview with The Chronicle-Telegram, saying that the prosecutor having his investigators commissioned as constables in Sheffield Township was improper under Ohio law. Stammitti and Will, who became Stammitti's chief administrative officer in January 2021, outlined their concerns about Tomlinson's efforts in a Sept. 8 interview with the newspaper. They said they believed Tomlinson was creating his own police department at the urging of his chief investigator and opening up the county to legal liability. Tomlinson provided his own six-page written response Tuesday. Officially classified under Ohio law as "secret service officers," Tomlinson's investigators deliver court paperwork, interview witnesses and help prosecutors prepare for trial. The law does not give the investigators arrest powers. As constables they would have those powers, protecting them when they interview witnesses or criminal suspects, Tomlinson said. "If one of those suspects were to confess to the commission of an offense, and if an investigator had no authority to arrest, he would have to coax the suspect into 'staying put' while police were called." Forcing them to wait to call other officers who do have arrest powers in such a situation is "nonsense," Tomlinson wrote. After winning the election and shortly before taking office, Tomlinson wrote that he asked Stammitti to give special deputy commissions to five of his six investigators so they could have arrest powers. Stammitti agreed to the plan, Tomlinson said, then changed his mind after he brought Will on board. "What the sheriff failed to disclose ... is that his answer to my request (in November 2020) was 'yes.' In fact, the sheriff, in that same conversation, asked me to send him a list of the officers that I wanted him to deputize," Tomlinson wrote. "I provided the list of officers to the sheriff and we then discussed how to get my new employees to the sheriff's office at the same time for the swearing-in." Documents provided by Stammitti on Sept. 8 confirm the two discussed the matter in November 2020. Once Will was hired at the sheriff's office, Tomlinson said his agreement with Stammitti evaporated. He also said Stammitti admitted the reason was that Tomlinson hired former sheriff's captain, Rich Resendez, as his chief investigator. Stammitti "self-confessed" that "he was denying my request for the deputization of my investigators because I had hired Rich Resendez," Tomlinson wrote. Stammitti "perceives Investigator Resendez as a political threat because he had made plans to run against the sheriff once before" and that the sheriff "admitted that the reasons were personal and not professional," Tomlinson wrote. Resendez worked for Stammitti until he was laid off in 2010. Resendez announced, then abandoned, plans to run for sheriff against Stammitti in 2011. "I believe it's Resendez" behind the push to get the investigators commissioned as constables, Stammitti told The Chronicle on Sept. 8. In response, Resendez called Stammitti's allegation "a ridiculous notion." Tomlinson also took issue with Stammitti going to the newspaper after the two had an agreement not to fight over the issue in the media. "It is ironic that the sheriff acknowledged in his Chronicle-Telegram interview having made an agreement with me to keep our discussions on these issues confidential unless we could reach an agreement," Tomlinson wrote. "It is ironic because the confidentiality agreement was reached for the sheriff's benefit and not mine." "I knew my legal analysis was sound," and investigators having police powers "is not unusual" by the sheriff's own admission, Tomlinson wrote, pointing to Stammitti's own statements and a survey he conducted that shows at least 10 county sheriffs in Ohio give such powers to prosecutors' investigators. Stammitti has not been able "to cite even one instance where a prosecutor's investigator, with police power, has ever incurred civil liability in the course and scope of his employment, for any reason," Tomlinson wrote. Tomlinson said five investigators, all certified by the Ohio Peace Officer Training Academy and with more than 125 years of combined law enforcement experience, cost the county only an additional $7,000 under its existing insurance policy. He "will not be in the business of organizing a new police department," he wrote. His office doesn't conduct its own original investigations and refers criminal complaints to the appropriate agencies, Tomlinson wrote. "We will not conduct, or assist in conducting investigations, unless we are specifically requested to do so, in writing, by a local police department. That has been the practice since I took office," he wrote. Deputies union: No issue Stammitti's own deputies took no issue with Tomlinson's plans, the president of the Lorain County Deputies Association told Sheffield Township Trustee Chad Parsons in a March 3 letter — a copy of which was obtained by The Chronicle. "To my knowledge, there are no members of the Lorain County Deputies Association that have an issue with the prosecutors investigators being constables for your township," LCDA President Adam Shaw wrote Parsons. "The members of the Deputies Association have enjoyed the good working relationships with all the townships over the years, and I see no reason this would change moving forward," Shaw wrote. Commissioners refuse documents The Chronicle asked the county to provide it with any legal opinions produced by Tucker Ellis, a law firm hired by the Lorain County Board of Commissioners in May to advise the board on the legality of Tomlinson's actions. Commissioners refused to waive attorney-client privilege and refused to release any such documents to the newspaper at its request, County Administrator J.R. White said Monday. "As a longstanding matter of policy, the board does not waive attorney-client privilege and will not do so here," White wrote. "The board views this as a situation between two elected officials who are in the best position to resolve the issue." Contact Dave O'Brien at (440) 329-7129 or dobrien@chroniclet.com. Follow him on Twitter @DaveOBrienCT.