Special prosecutor request in radio probe continues to divide sheriff, prosecutor

Lorain County Prosecutor J.D. Tomlinson and Lorain County Sheriff Phil Stammitti are at odds over whether a special prosecutor should be appointed to help continue Stammitti's investigation into allegations there was criminal wrongdoing in the way the Board of Commissioners rescinded a multimillion-dollar contract to provide first responders with new radios. Stammitti wants a special prosecutor to assist him. Tomlinson has said that isn't necessary, and also that he has had trouble finding one. Dual investigations by Stammitti and the Auditor of State's office found no criminal activity warranting charges over Lorain County's dealings with Cleveland Communications Inc. which would have provided L3 Harris radios to sheriff's deputies and local fire departments. Stammitti's initial investigation into allegations by two county commissioners that the CCI contract was "rigged" or "steered" to the Parma company by a third commissioner found no evidence to support the allegations, the sheriff wrote in a letter to Tomlinson on Oct. 24. The aftermath of that allegation has turned into a back-and-forth letter-writing campaign between the two elected Democrats. "I am petitioning you to request a special prosecutor so that the Lorain County Sheriff's Office can investigate claims that you have already indicated that the office of the Lorain Prosecutor's Office cannot be involved in based upon having a conflict in representing both Commissioners (David) Moore and (Jeff) Riddell in your capacity as the Lorain County Prosecutor," Stammitti wrote Tomlinson on Oct. 24, following the release of his 200-plus page investigation. As legal counsel for both the sheriff's office and for the commissioners, Tomlinson has a conflict of interest that prevents him from prosecuting county officials if criminal charges are brought. Neither Moore nor Riddell agreed to an interview with a sheriff's investigator, based on legal advice from outside counsel. They have provided no evidence that the CCI contract was rigged or steered to the company, despite making public claims to that effect. Stammitti wrote that the investigation is now focused on a complaint filed by the Lorain County Fire Chief's Association "that there were illegalities involved in the rescission of the CCI contract" by Moore and Riddell in a 2-1 vote of the Board of Commissioners on Jan. 9. Commissioner Michelle Hung went against her fellow Republicans and voted to keep the contract in place. CCI sued the county for breach of contract and denial of due process in Lorain County Common Pleas Court two weeks later. The lawsuit was voluntarily dismissed in August, then refiled in U.S. District Court in Cleveland. Allegations in that lawsuit "directly involved actions by your clients Commissioners Moore and Riddell," Stammitti wrote to Tomlinson. "Consistent with your original statement that you would be in conflict to be involved in that type of an investigation, (the) appointment of a special prosecutor is both necessary and warranted." The sheriff further said that an independent special prosecutor would ensure Tomlinson was clear of any conflicts and "ensure public confidence in the investigation." Tomlinson previously told Stammitti he wouldn't seek a special prosecutor because the investigation was in the hands of Ohio Auditor Keith Faber. The Ohio Attorney General's Office also previously declined to provide Tomlinson with a special prosecutor, saying it was too busy to assist him. Tomlinson's response In his reply to Stammitti's Oct. 24 letter, dated Nov. 6, Tomlinson wrote that he had "every confidence" that the issues Stammitti wanted investigated "will be well-vetted" in two lawsuits making their way through federal court in Cleveland: One by former Lorain County 911 director Harry Williamson and a second by CCI. Tomlinson wrote that the sheriff "didn't seem to know what you wanted to investigate" — whether it was Moore and Riddell or Moore's complaint against Hung and her vote to approve the CCI contract. He also wrote that "any prosecution arising from Commissioner Moore's complaint would be pursued by Auditor Faber's attorneys." "Because the investigation was already in capable hands, I wrote to you, advising you not to duplicate the state auditor's effort on the county level and that I could not oblige your request for a special prosecutor to assist in a parallel investigation," Tomlinson wrote. After Stammitti was informed of that, Tomlinson wrote that the sheriff called his office and "left a desperate-sounding voicemail message, insisting that you needed a special prosecutor, notwithstanding your knowledge that the above investigation of Commissioner Hung was being conducted by the state auditor." Tomlinson said jail visitor logs showed that Hung, "the party who was allegedly the target of your investigation," visited Stammitti's office "nearly a dozen times after the vote" to rescind the radios contract in January. "Because I concluded that Commissioner Hung would not have been assisting you in your investigation of her, I concluded that your claim to have been investigating her was untruthful," Tomlinson wrote. "Based upon the way you have conducted yourself in this matter and others, I have concluded that you are not a law enforcement officer a prosecutor should trust." Requesting a special prosecutor to do a grand jury investigation "is not a small matter," Tomlinson wrote. Three other county prosecutors and Attorney General Dave Yost's office have all declined to get involved in "what they believe is a political battle and not a criminal investigation," Tomlinson wrote. Faber's investigators spent nearly two years investigating Moore's allegations against Hung, Williamson and CCI, finding nothing, according to a letter provided by Faber's office to the Chronicle-Telegram. "In order to request a special prosecutor, I would have to be made aware of some evidence that would create a reasonable suspicion of criminal activity on the part of commissioners Moore and Riddell," Tomlinson wrote. "To date, the only fact that has been generated is that these two commissioners voted to rescind contracts previously negotiated between Lorain County and CCI." "This fact is insufficient to warrant a grand jury investigation," Tomlinson concluded. "If this circumstance changes, your request for a special prosecutor will be reconsidered." Stammitti replies In his reply to Tomlinson's Nov. 6 letter, dated Thursday, Stammitti wrote that he found Tomlinson's response "both puzzling and disingenuous" and that he may "have taken extreme liberty in describing what has led to my request for a special prosecutor." Civil litigation like that filed by CCI and Williamson "is not a substitute for law enforcement investigation," Stammitti wrote. Hung, he wrote, visited the sheriff's office because she was the person being accused of steering the contract, and "interviewing her and getting documentation from her was integral to the process." "You would have found both Commissioners Moore and Riddell at the sheriff's office as well had they not declined the opportunity to bring forth evidence of the steering that they had alleged," Stammitti wrote. "Investigations into criminal activity that strikes at the core of county government cannot fall to the wayside because it might be difficult or inconvenient," Stammitti wrote. Moore said Friday that he hadn't yet read Stammitti's letter of Thursday, so he couldn't comment on it. Tomlinson's second response In a second response, which Tomlinson shared with the Chronicle-Telegram on Friday and said would be on Stammitti's desk on Monday, he again wrote that he needs "reasonable suspicion that criminal activity has occurred" in order to persuade Faber, Yost or another elected prosecutor to get involved in the investigation. "This would require you to conduct a criminal investigation and prepare a report. This is exactly what you did when, as you claim, you investigated Commissioner Michelle Hung," Tomlinson wrote. Witnesses were interviewed and a report was prepared, the prosecutor wrote. Seeking a special prosecutor for an investigation that didn't uncover any crimes "would have been an unconscionable waste of resources," Tomlinson wrote. "However, I express to you again, should your office generate the report of a criminal investigation that gives rise to a reasonable suspicion of criminal conduct on the part of any person involved, directly or indirectly, in the negotiation, approval, or rescission of a public contract in Lorain County, I will seek a special prosecutor to assist you," he wrote. "I caution, however, that the state attorney general is short-handed and our three closest elected county prosecutors refused my last request for their help. The investigative office of the State Auditor refused even to review the matter when contacted last week," Tomlinson wrote. A copy of Tomlinson's latest letter was provided to Stammitti, and messages seeking comment on it were left for him on Friday. Contact Dave O'Brien at (440) 329-7129 or dobrien@chroniclet.com. Follow him at @daveobrienCT on X, formerly Twitter.