Special Lucas County prosecutor declines prosecution in Cleveland fire chief case

Allegations stem from the fire chief’s participation in circulating petitions and seeking signatures to get Mayor Frank Jackson placed on the ballot to participate in a non-partisan election. 

By Allison Dunn / The Blade
Tue, 03 Dec 2019 17:15:50 GMT

CLEVELAND — An assistant Lucas County prosecutor who served as a special prosecutor in Cuyahoga County recently decided not to pursue criminal charges against Cleveland Fire Chief Angelo Calvillo, who was accused of violating the city’s charter by participating in an election campaign.

Retired Perrysburg Municipal Court Judge Dwight Osterud and Frank Spryszak, deputy chief of the criminal division of the Lucas County Prosecutor’s Office, were each appointed to oversee the case after Cleveland-area officials recused themselves from proceedings. In a memorandum filed Saturday with Cleveland Law Director Barbara Langhenry, Mr. Spryszak requested the judge dismiss the allegations against the fire chief with prejudice. 

Joseph Diemert, Jr., who represents members of Cleveland Firefighter Association Local 93, told The Blade on Tuesday that he and his clients “very much disagree with the decision.” 

Mr. Diemert filed an affidavit in Cleveland Municipal Court on Aug. 23. The affidavit alleges Chief Calvillo violated the city’s charter by obtaining signatures in a non-partisan election on behalf of Mayor Frank Jackson. The charter states any person in classified service of the city is not to partake in a political campaign, which includes seeking signatures for any petition provided for by primary or election law. A violation is a misdemeanor of the first degree.

The petitions in question do show Mr. Calvillo participated in seeking signatures on Feb. 25, 2017, and on three dates in March, 2017, to get Mayor Frank Jackson placed on the ballot to participate in a non-partisan election. However, the August affidavit relating to the allegations falls outside of the time period required by statute, Mr. Spryszak determined. 

“The statute of limitations can be tolled for criminal offenses involving misconduct in office by a public servant. However, Mr. Calvillo was not acting in his capacity as a public servant when he circulated the petitions in question,” Mr. Spryszak wrote, adding Mr. Calvillo did not obtain signatures during working hours. 

Mr. Calvillo was not in uniform while circulating the petitions in a residential neighborhood and “neither of the witnesses felt coerced into signing the petitions due to Mr. Calvillo’s position as the Chief of the City of Cleveland Division of Fire,” Mr. Spryszak wrote. 

A copy of the memorandum was provided to The Blade on Tuesday. 

Mr. Diemert said he plans to have a response regarding the prosecutor’s decision within the next day or two.

“I want to go back to the judge and say, ‘I don’t think this was discretionary for the prosecutor to decide,’” Mr. Diemert said.

On Sept. 11, Judge Osterud ordered the matter to proceed to prosecution as probable cause existed and indicated that the special prosecutor was being appointed. Then, the fire chief would be summoned to appear in court to answer to the allegations. 

Mr. Diemert still wants that to happen, he said. 

“We’re not giving up,” he added. 

Mr. Spryszak also determined there is a conflict between the city’s charter and the rules of the Civil Service Commission, a government agency which regulates the employment and working conditions of civil servants. 

Under the Civil Service Commission’s rules, Mr. Calvillo’s actions were permissible — though they were in direct conflict with the City of Cleveland’s charter, as it does not differentiate between partisan and nonpartisan elections, according to the memorandum. 

“Despite the language of the Charter controlling when there is conflict, the evidence in this case suggests that Mr. Calvillo was following the rules of the Civil Service Commission. There is no evidence Mr. Calvillo was using his ‘official authority to influence of coerce the political action of any person or body, or to interfere with any nomination or election to public office,’” Mr. Spryszak wrote. “Thus, Mr. Calvillo did not have criminal intent when circulating petitions and seeking signatures.”

Separately, Mr. Diemert is overseeing a civil lawsuit in the Cuyahoga County common pleas asking a judge to order the city to remove the chief. 

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