IN THE CLEVELAND MUNICIPAL COURT

CLEVELAND, OHIO

IN RE: )
)
Atty. Barbara Ann Langhenry ) JUDGE
)
) Affidavit of Person Having Atty.
Atty. Richard Francis Horvath ) Knowledge of Offense R.C.
) 2935.09 2935.10
)
) Ord. No. 615.12 Dereliction of Duty
)
)
)
)
)

STATE OF OHIO )
) SS:
COUNTY OF CUYAHOGA )

Now comes, Eric Jonathan Brewer, and after being duly-sworn according to law, deposes and states

that he is of full legal age, has personal knowledge of all matters stated herein, and is otherwise competent

to testify to the matters set forth below.

Further, Affiant states the following:

1. My name is Eric Jonathan Brewer.

2. I am a resident of Cleveland, Ohio in Cuyahoga County and have been for more than six months

prior to this Affidavit.

3. I am the former Mayor of the City of East Cleveland, a former Special Assistant to the Mayor of

Cleveland, former Chief of Staff to the Mayor of East Cleveland; and a veteran journalist with

extensive knowledge of Cleveland municipal government and its officials that dates back to 1979.

4. I have had the opportunity to review events leading up to the enactment of Ord. No. 305-17 and

Ord. No. 469-17 on April 24, 2017, and to compare the official and unofficial acts of Council's

president (Kevin Joseph Kelley), Director of Law (Barbara Ann Langhenry) and a Deputy to the

Director of Law (Richard Francis Horvath) to Cleveland's charter, ordinances and general laws
 governing municipal corporations.`

5. Barbara Ann Langhenry (Reg. No. 0038838) is an attorney-at-law admitted in Ohio on November

16, 1987. At all relevant times throughout this Complaint attorney Langhenry was acting in her

official capacity as the Director of Law for the City of Cleveland with duties prescribed in Chapter

15, Section 83 of the Charter and under Title 733 of Ohio's Revised Code as well as Chapter 309.

6. Richard Francis Horvath (Reg. No. 0030912) is an attorney-at-law admitted in Ohio on November

4, 1977. At all relevant times throughout this Complaint attorney Horvath was acting in his official

capacity as a Deputy to the Director of Law for the City of Cleveland with duties prescribed in

Chapter 15, Section 83 of the Charter and under Title 733 of Ohio's Revised Code as well as

Chapter 309.

7. Kevin Joseph Kelley (Reg. No. 0077707) is an attorney-at-law admitted in Ohio on November 8,

2004. At all relevant times throughout this Complaint attorney Kelley was acting in his official

capacity as a member of the legislative branch of government and an officer of the municipal

corporation with additional duties identified in Chapter 5, Section 30 of Cleveland's Charter and in

the 57 Rules of Council.

8. Zack Reed is member of Cleveland City Council elected by the voters of Ward 2 to represent them

on matters before the legislative authority.

9. Langhenry, Horvath and Kelley as attorneys were at all times bound by Disciplinary Rule 1.13 of

Ohio's Code of Professional Conduct that exists under the heading Organization as client.

(a) A lawyer employed or retained by an organization represents the

organization acting through its constituents. A lawyer employed or retained

by an organization owes allegiance to the organization and not to any

constituent or other person connected with the organization. The

constituents of an organization include its owners and its duly authorized

officers, directors, trustees, and employees.

(b) If a lawyer for an organization knows or reasonably should know that its
 constituents action, intended action, or refusal to act (1) violates a legal

obligation to the organization, or (2) is a violation of law that reasonably

might be imputed to the organization and that is likely to result in

substantial injury to the organization, then the lawyer shall proceed as is

necessary in the best interest of the organization. When it is necessary to

enable the organization to address the matter in a timely and appropriate

manner, the lawyer shall refer the matter to higher authority, including, if

warranted by the circumstances, the highest authority that can act on behalf

of the organization under applicable law.

10. At a regular meeting of Cleveland city council on April 24, 2017, Councilman Reed obtained

the floor from Kelley in his official capacity as Council President to ask a question of a Deputy

to the Director of of Law sometime after 1900 hours. At all relevant times described in this

Affidavit, Kelley was authorized only to perform the preside over the meetings duties of the

President of Council found in Chapter 11, Section 30 of the Charter of Cleveland; and reiterated

in the 57 rules as the additional duties Council imposed upon the legislative-only executive

office.

11. Councilman Reed, in his official capacity as a member of the municipal corporation's legislative

branch of government, was exercising his legislative authority to learn if the Department of

Law played any role in the negotiation of a Community Benefits Agreement the Council

President negotiated and asked Ward 1 Councilman Terrell Pruitt to sponsor in the form of Ord.

No. 469-17.

12. Deputy Law Director Horvath answered that the Department of Law under the administrative

supervision of the Mayor had not been involved in the Council President's contract negotiations

connected to Ord. No. 469-17 and Ord. No. 305-17.

13. Chapter 15, Section 83 of the Charter of Cleveland instructed attorney Langhenry in her official
 capacity as Director of Law, along with deputies such as attorney Horvath, that among their

duties were they, Shall be the legal advisor of and attorney and counsel for the City, and for

all officers and departments thereof in matters relating to their official duties.

14. Attorney and a deputy of the Director of Law, Horvath did not advise Councilman Reed, the

Council President or the members of the legislative authority how Kelley's unauthorized

contract negotiations exceeded the limited authority of the office of President of Council as

identified in Chapter 5, Section 30 of the Charter.

15. The record reflects during the official meeting of the Council, where at all times he was duty-

bound to advise the city's officers in matters relating to their official duties pursuant to Chapter

15, Section 83 of the charter, Horvath did not advise Kelley his contract negotiations were

beyond the scope of the official duties of the President of Council identified in Chapter 5,

Section 30; and the others identified in the 57 rules that governed the conduct of the office he

held and that of the remaining members of Council.

16. The record reflects that attorney Horvath in his official capacity as a deputy of the Director of

Law did not advise Kelley, Reed or the entire Council that Chapter 11, Section 71 of the Charter

imposed the duty on the office of Mayor, not the President of Council, to supervise the

administration of the affairs of the City ...

17. The record reflects that in his capacity as a deputy of the Director of Law Horvath did not

advise Kelley or the Council that Ord. No. 305-17 required a verbal yea or nay vote pursuant

to Rule 20 of the rules Governing Council. On the passage of every ordinance or resolution,

and on the appointment of every officer, the vote shall be taken by yeas and nays, entered in

full upon the records and published in the official journal. On any other question, the yeas and

nays shall be entered upon the record on the request of any member. Upon the call of the yeas

and nays, the Clerk shall call the names of members alphabetically and record the vote.

18. The record reflects that in his official capacity as a deputy of the Director of Law Horvath did
 not advise Kelley as the President of Council that Chapter 5, Section 36 of the Charter did not

authorize him to enact Ord. 305.17 as an emergency that extended a special privilege that

appropriated $88 million to renovate The Q arena. ...but no measure making a grant, renewal

or extension of a franchise or other special privilege, or regulating the rate to be charged for

its services by any public utility, shall ever be so passed.

19. The path to the enactment of Ord. No.'s 305-17 and 469-17 was spelled out as instructions to

Kelley in Sections 32, 33, 36 and 38 of the Charter if it was the Council's intent to cause $88

million in public funds to be appropriated to support the renovation of The Q sports arena;

particularly since the Mayor did not request it as a 2017 appropriations priority in his Mayor's

Estimate.

20. Knowing that Kelley was exceeding the authority of the office of President of Council it was

Horvath's duty pursuant to Chapter 15, Section 83 of the Charter to advise him and the Council

on the performance of their official duties.

21. If Kelley failed to conform, and Council joined in supporting the acts he committed in

contravention to law, attorney Horvath knew or should have known it was his and the Director

of Law's duties pursuant to Chapter 5, Section 87 of the Charter to seek an Application for

Injunction to prevent the abuse of the municipal corporation's powers. The Director of Law

shall apply, in the name of the City, to a court of competent jurisdiction for an order of

injunction to restrain the misapplication of funds of the City, or the abuse of its corporate

powers, or the execution or performance of any contract made in behalf of the City in

contravention of law, or which was procured by fraud or corruption.

22. Attorney Horvath knew or should have known that Section 89 under Chapter 5 of the Charter

compelled the Director of Law to seek a Mandamus to prevent Kelley's duty-exceeding

behavior. In case any officer or commission fails to perform any duty required by law, the

Director of Law shall apply to a court of competent jurisdiction for a writ of mandamus to
 compel the performance of such duty.

23. Attorney Horvath knew or should have known that Section 88 of Chapter 5 of Cleveland's

charter compelled the Director of Law and that official's deputies to apply for the specific

performance thereof when he detected Kelley's evasion and violation of known duties.

24. Horvath knew or should have known that when the Director of Law signed Ord. No's 305-17

and 469-17 as true to form the official's signature was not a guarantee the enactment of the

legislation was lawful.

25. Horvath knew or should have known that when the Director of Law advised the Mayor to sign

the two ordinances in the performance of his official duties, that the Mayor's signature was no

guarantee to the citizens of Cleveland that the legislation had been lawfully-enacted.

26. As such this Affiant believes the public record supports his Affidavit that the Deputy and the

Director of Law for the city of Cleveland failed to perform the duty of advising the Council

President, the Council and the Mayor on the performance of their official duties during the

enactment of Ord. No. 305-17 and 469-17; and in violation of Ord. No. 612.16(e), Dereliction

of Duty.

FURTHER AFFIANT SAYETH NAUGHT

____________________________________
Eric Jonathan Brewer / 216-310-1110

Sworn to and subscribed in my presence this ______ day of April, 2017.

_________________________________
Notary Public