Attorneys for Tomlinson say document with embarassing 'accusations' is not public record

Lawyers representing Lorain County Prosecutor J.D. Tomlinson in a public records lawsuit surrounding a controversial $100,000 payout to former employee Jennifer Battistelli have asked a judge to seal from public view a document they say contains "accusations" harmful both to their client and to Battistelli. In the filing, attorneys Kathleen Minahan and Amily Imbrogno of the Cleveland law firm Meyers, Roman, Friedberg & Lewis argued that a "communication" between Battistelli's attorney, Jack Moran, and the prosecutor's office "need not be produced in discovery in this matter, nor its contents discussed in this matter." In short, Tomlinson's attorneys ask for a protective order from visiting Judge Thomas Teodosio preventing the communication from being publicized to protect their client "from annoyance, embarrassment or oppression, as the document is not relevant to any claim or defense in this matter." "The oppressive nature of the Oct. 10, 2023, communication far outweighs the relevance or value of the communication to this litigation," they wrote. "Its discovery should not be had or should be protected." Minahan and Imbrogno further asked Teodosio to instead examine the documents "in camera" — in chambers with the public and press excluded — and prohibit disclosing them to a third party. The Chronicle-Telegram made a public records request Thursday under Ohio open records law for the "communication" referenced in the filing. Minahan and Imbrogno further argued that the document in question "contained several false statements challenging not only (Tomlinson's) character but also Battistelli's character and the integrity of his office." "The allegations asserted against him are not only false, but would also be damaging to his reputation," Tomlinson's attorneys wrote. "Prosecutor Tomlinson has reason to believe that Battistelli did not make those accusations, and that release of the communication could be harmful to Battistelli's reputation as well." Tomlinson, a Democrat, will face Republican Tony Cillo in the November election. Cillo is a former assistant Lorain County prosecutor who worked for Tomlinson from when Tomlinson took office in January 2021 until mid-2022, when he went to work for the attorney general's office. The filing further alleges that the "communication" is being sought by Tomlinson's political opponents, including Cillo, "in an attempt to damage Prosecutor Tomlinson's reputation and gain political advantage. Attorney James Barilla, a Republican, filed suit against Tomlinson, Chief Assistant Prosecutor Dan Petticord and the three Republican county commissioners — Jeff Riddell, David Moore and Michelle Hung — in common pleas court in February, seeking public records related to the Battistelli settlement. According to the Ohio Attorney General's Office, a public record is "a document in any format — paper, electronic (including, but not limited to, business e-mail) — that is created, received by, or comes under the jurisdiction of (public office) that documents the organization, functions, policies, decisions, procedures, operations or other activities of the office." "All public records must be organized and maintained in such a way that they can be made available for inspection and copying," according to the attorney general's office. Tomlinson's attorneys further argued that the Oct. 10, 2023, "communication" mentioned is not a record and that Barilla and Rosenbaum have to prove it is before it can become relevant to their lawsuit. Tomlinson "did not rely on the Oct. 10, 2023 communication when deciding whether he would agree to settle with Battistelli or under what terms he would agree to settle with Battistelli," his attorneys wrote. He had by that time already negotiated the $100,000 settlement with her and her attorney. The communication "is therefore not a 'record,'" Tomlinson's attorneys argued. The contents of it also are "not relevant" to Barilla's claims before the court, they wrote. In an affidavit attached to the filing, Tomlinson wrote that he learned in September that Battistelli — who resigned in August — made allegations of discrimination during her time with his office and was willing to settle for $150,000. The settlement was negotiated down to the final $100,000 figure, which Tomlinson wrote "fits within the budget of my office." The allegations of discrimination "were not true," but Tomlinson wrote he allowed a negotiated settlement "because of the potential cost, use of resources and stress often present in litigation." A week after a draft of the settlement was finalized on Oct. 2, his office received the "communication" from Moran "that contained additional allegations." Tomlinson wrote he was "surprised" by its contents "because most of the statements in it were patently false." "The allegations not only challenge my character and the integrity of my office, but I believe that they challenge the character of Battistelli, as I have reason to believe that she did not make those allegations," he wrote. Furthermore, Barilla, Rosenbaum and Cillo "oppose me politically," Tomlinson wrote. The Board of Commissioners voted to appropriate the money for the settlement in October. What the exact allegations by Battistelli are, is not clear. The Chronicle has asked for and received public records from the prosecutor's office, none of which contain details of allegations that may have resulted in the settlement. Both Tomlinson, and Battistelli's attorney, have declined to discuss the allegations, citing a nondisclosure agreement — which may not be legal under Ohio law. Under the Ohio Public Records Act, there is no exemption to public records created by a nondisclosure agreement or other contract including settlement agreements, according to Chapter 3 of the Ohio Sunshine Laws Manual, also known as "the yellow book." A message seeking comment on the filing was left for Rosenbaum on Thursday. Rosenbaum is also the subject of a lawsuit by Nancy Smith and Joseph Allen, who as an assistant county prosecutor successfully convicted them on child sexual abuse in the 1990s Head Start case. After being elected prosecutor, Tomlinson didn't oppose a new trial for Allen and Smith and dismissed charges against them. Rosenbaum has denied any wrongdoing and asked a federal judge to dismiss the pair's wrongful imprisonment lawsuit, which is being heard in U.S. District Court in Cleveland. Hung: Commissioners might need new lawyers Neither Moore nor Riddell had any comment on Tomlinson's filing. Hung said Thursday that the board has "now been dragged into a lawsuit" because of Tomlinson and Petticord's claims. Petticord is the board's usual legal counsel but a defendant in the public records lawsuit. "These are taxpayer dollars being spent, now more taxpayer dollars are being spent to stop the records, owned by the taxpayers, from being publicly released," Hung said, calling it "a concern" for the board that legal counsel for the prosecutor and the board are "commingled." Saying it was clear information was withheld from her, Hung said she would support the board getting its own legal counsel, separate from Tomlinson and Petticord's counsel, to handle the allegations in court. Even that, she said, is "more problematic" because it would be Petticord making that request on the board's behalf, Hung said. Contact Dave O'Brien at (440) 329-7129 or dobrien@chroniclet.com.