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we're now gonna shift gears and if our two speakers would head up that way on the subject of whistleblowers and I think this is one that also has become a little more in the news because the media covers somebody's a whistleblower but there's always the question of what protections do they have or not and I think uniquely ray and Sam are gonna mention that whistleblowers is one of the cases where under state law the burdens on the employee to prove that they've done certain things so if if Ray and Sam will head up here Sam's a partner in his Columbus law firm and it's focused on employment litigation arbitration mediation a very seasoned attorney both public sector and private I think you were former assistant attorney general at one time right so and he's represented both employers and employees ray geiss's our newest administrative law judge with our board and one of the things that's unique about ray he was originally a teacher went back to law school at night he was also his union president up in the Akron area and we're glad because he's seeing the union and the employee side he also then after getting his law degree worked for a number of years in different positions with Department of Administrative Services so he's seen both sides because that's important if you've got to adjudicate cases so I'm now gonna turn it over to Sam and ray and they get to in 45 minutes because when it's noon people are gonna want lunch right and so they need to be timely and efficient but again questions are welcome so ray and Sam go ahead Thank You chairman well I really enjoyed the last presentation i I actually wrote down it said let's make our employment disputes take us to a better place and I think that's a pretty impressive not easy to do right well I am Sam Lillard I'm a partner with Fisher and Phillips in the Columbus office we are a labor and employment defense firm only we do a fair amount of public sector work mostly out of our Cleveland office however I started practice before the personal board of review in 1990 I hate to admit that and in fact I came to this town as assistant attorney general in the federal litigation section which eventually became the Employment Law section left went into private practice and spent a fair amount of time representing state employees which actually really enjoyed a lot of those employees were public employees before the Personnel Board of Review then I had it's ten going back into big firm law and now only represent employers but in those 24 years of practicing before the personal board review I've only had a handful of whistleblower claims under the Ohio public employer whistleblower statute which you may know is one 24:34 one and let me ask how many attorneys do we have in the audience okay and be interested in knowing again this statute has been around since 1986 but how many of you have actually dealt with it had had to deal with a complaint of a whistleblower complaint yeah okay well a few right and that seems consistent however I'm gonna predict that you're actually gonna see more cases in which public employees seek protection in fact if you look at the case law and there's only about 20 cases out there a lot of those cases are recent and I think we're gonna see more activity in this area in the public sector partly because we have of the evolution of social media we have employees that are gaining more and more access to information and I think they're just more opportunities for state employees to blow the whistle also am I on the private sector side we're highly aware that the plaintiffs bar is becoming very very familiar with triggering protected activity and then bringing claims of retaliation fact I was we've recently pulled the EEO C's fiscal year 2017 statistics on the number of claims of discrimination filed and they list it by each type right and then under Title 7 as well as Ohio law you can file claims of discrimination based on race sex age national origin disability and retaliation right retaliation is engaging in protected activity and alleging that you were terminated as a result well the EEOC is now announced that in 2017 the most frequently filed charge with the agency is retaliation it is now almost 50% of all cases filed and that's higher than race cases and disability cases which are 2nd and 3rd and why is that well we know in the private sector the reason that is is because plaintiffs part realizes that there are easy cases to prove in title 7 and under Ohio civil rights statutes and they are easy claims to get past summary judgment in order to prove these claims you just have to prove four things one that you engaged in protected activity that the employer knew you gage and protected activity something bad happened to you right subjected to a diverse employment action and then you have to prove that there's a causal connection between what happened to you and your protected activity a lot of those cases it comes down to that causal connection and that can be a question of legitimate dispute of fact eating past summary judgment and so they are a very common claim that we're dealing with for the private sector and I think you're gonna start seeing more and more attorneys looking to creating that protected activity with these public policy in public employment whistleblower statutes now in the private sector engaging in protected activity tickler retitle seven and ohio civil rights laws is easy any adverse action or activity opposing unlawful discrimination and usually we'll do it testifying writing a report complaining in the whistleblower statutes getting that protection is really the hard part right well almost all of Ohio's whistleblower statutes require you to file some type of report and go through a very precise process to get that protection so in the private sector with discrimination getting protected is easy in the with the Ohio public whistleblower statute getting that protection is hard and the for the Ohio public whistleblower statute the jurisdiction falls to the Ohio Personnel Board of Review is the exclusive remedy so let me say a little bit about the personal board of review it may be obvious to you but of course it's a quasi-judicial agency it's actually part of the executive branch I think in my personal opinion it is probably one of the most effective guardians of the Ohio civil service system that and we deal with a lot of other states that we have in the United States only problem is it has very limited jurisdiction in most situations it's only limited to classified employees that are non-union and it has very very short statute of limitations for more situations for one twenty four thirty four orders terminations of classified employees it's only ten days I'm just gonna pause on that just because I is something I want to talk about but you know as a attorney for public employees for quite some time it was very common for me to get calls on the eleventh day from employees or the twelfth day or the thirteenth day and I've had to explain to him unfortunately sounds like he did have an appeal but it's only ten days from that one 24:34 order I would always advocate that we move that to 14 if anybody listens to that those extra three days really make a lot of difference people are often trying to figure out what to do once they've been terminated and it's not always easy to find the right attorney that is experienced with the personal board review however for whistleblower claims the statute of limitations is 30 days and yet for another very specific form a whistleblower which we'll talk about it's actually 60 days but for the one we're gonna focus on again which is 1 24 34 1 is 30 days from actual notice of the discipline or retaliatory action now we're gonna focus on the statute 1 24 34 1 but there are two other Ohio whistleblower statutes to be aware of and that is there's a 41 67 13 so whether it's here in fact I'm have you ever had a case well our jurisdiction is limited to the one to four all right well there is I'm gonna take that as a no because if you actually look at 41 67 13 it says that you says no public employer shall just dis discharge or discriminate because a public employee files a complaint about workplace safety and it has a specific definition of that and it does give the employees a remedy an option to file grievances or to file with the personal board of review actually but I I'm not aware of any cases ever being filed under that but it's interesting about 41 67 13 is the the definition of public employees includes obviously public employees in the civil service system but actually defines private employees who work for private companies but are directed and curl controlled by public employers so in theory if you look at the law and this is little a far stretch it's possible the the ohio personal border review could get jurisdiction over private employees of private employers that are controlled by a public employer I'm not seeing any cases I don't think anybody's ever attempted that but you can take a look at the statute yourself the other statute to be aware of is and it should say all Private Ohio employees is for one one 3.52 that's the main Ohio whistleblower statute for private employees and in Ohio for US attorneys who deal with that a lot and it's filed a lot of cases but it's very rare for an employee to ever meet the requirements of for one 3.52 and a lot of the plaintiffs bars will eventually try to add just a public policy tour because of the real difficulty of filing those in order to file a claim for a private employee under 4 1 1 3.52 you have to show a violation of law that violation of law has to create an imminent risk of harm or a safety hazard to the public health or it has to be a felony you don't have to file report you have to wait 24 hours and then nothing happens you can contact the appropriate law enforcement entity why is this statute important because it's not really relevant to the personal board of review it's relevant because when the courts look at the public whistleblower statute they often look at the cases related to 4 1 1 352 and often address how courts have handled that whistleblower statute again it's very hard to satisfy any of these public whistleblowers for an employee so here's a practice tip if you get a report that appears to be triggering one of these three statutes there's probably an attorney behind the scenes right in fact I've had the pleasure of having a the rare and client that comes to me before they do anything and ask me what do I need to do to trigger this protection under these laws and I've had the opportunity to write the letter for them to review to sign checking all the boxes making sure that we keep the timeframes and in fact I remember one specifically where we alleged it was clear safety violation a violation of law it was a serious risk of harm file the report and then the employer made that employee the director of safety for that issue which was a novel way to resolve that all right so the practice tip is if you get anything make sure any report that triggers these make sure you take it very seriously this seems obvious but it's not often done take it very seriously know that there's likely be attorney behind it investigate it thoroughly take a reasonable appropriate action in a timely basis and I just tell you the juries and judges always say timely means you dealt with it within 24 hours three days or seven days don't know why they just do all right so let's turn to 124 34 1 the public employer whistleblower statute it has basically five parts it's a little broader than the private sector whistleblower statute okay first of all it covers both classified and unclassified employees in fact it's one of the rare statutes that gives the personal board of review jurisdiction over the termination of unclassified employees if they can prove that I was turned they were terminated because they file the report and blew the whistle right yet also the statute itself also makes it clear and we use this a lot that 124 point 34 one is the exclusive remedy for all claims relating to whistleblowing of public employees now why is that important a lot of litigation I in fact we've had a couple of cases where the employee claims to be classified not unclassified they file the appeal with the personal board to review the personal board a review says nope you're actually unclassified throws decay decay because of the removal was based only on one 24:34 order that wasn't issued they then file in state court they raise a bunch of different types of claims they add the private sector whistleblower statute they add a public policy tort and we've moved to the court to throw those claims out because we say because they're in the civil service their only remedy was to file a complaint with the personal board of review within 30 days they didn't make that complaint therefore the case is out courts have bought that and because the statute is very specific in fact it's so specific when the Supreme Court went to look at the private whistleblower statute and did not find a language in it that said that that private whistleblower statute is exclusive they said you know what employees can file under the private sector section and can also file a public policy tort because the legislature clearly knew how to make it exclusive didn't do it in the private side only in the public side therefore you can do both just an interesting note so what is reportable under the statute well the statute says if a public employee and feel free to interrupt me if you have any questions if a public employee believes there is a violation of this state or federal statute or believes there's a violation of a state or federal rule or regulation or believes there is a misuse of public resources then the employee can file a report now this is quite broad so it's just a violation of state and federal statute state and federal rules or regulations and amuse misuse of public funds unlike the private side it does not include a serious safety risk or a hazards of the general public or a felony just violation of law and a misuse of public resources the third thing is that the violation has to be a violation that the your supervisor as the employee or the appointing authority can actually have authority to recked right minor addition the Knicks the statute says that knowledge of the violation must come through the course of employment now they don't really define what course of employment but it seems obvious that they're just talking about you're hired you learned it while you're hired and that is likely although cases these cases the state cases haven't addressed that it's not likely to apply to job applicants or contracts contractors or public service vendors it is likely to apply to complaints from public employees of one agency about misconduct or misuse of resources in another agency because some of the dicta of the cases but that is an open question as well so Knicks the public employee must file a written report if they believe there is a violation of the law or misuse of funds and that public report must be in writing and it must go to either one of two entities either go to that individual supervisor or to the appointing authority as an alternative it can go to the office of internal audit as an eternity of that it can go to the auditor to the state for through the fraud reporting system and then if the employee thinks that is a has a reasonable efj that it's a crime then the report may instead go to the local prosecuting attorney or the inspector general the Ethics Commission if that's applicable so that is the specific report requiring obligations and if you meet all those processes then you may be able to as a state employee get the protection under the statute now I it's interesting to note that this statute also has a provision that really hasn't been addressed by the courts it says that this the statute also says that employees must make a reasonable effort to determine the accuracy of the information that's contained in the report that's what it says it doesn't indicate what the penalty would be if they don't second it says and that employee can be disciplined if it can be proven that the employee purposely or recklessly reported false information in the report so in theory the employer will have the opportunity as a defense to say you submitted a report alleging a violation of law a misuse of public funds and we're terminating you for filing that report and the reason we're terminating you is because you purposely made it knowing it was false or you purposely made it and we're reckless to find out if it was true bad idea by the way if you're an employer to do that because if you think about it what it means is that you're omitting that you got a report and that you're terminating based on the report and now actually you the employer is gonna have the obligation of proving that it was either reckless or false okay I haven't seen anyone do that I wouldn't recommend it it's a trap right so if you think about this statute for a minute and unfortunately I have there's a whole lot of open questions you can ask right and some of the cases have addressed that some have not one of the questions you can ask is this does this whistleblower statute for public employees include violations of the discrimination laws involving the employee themselves right can you as a female public employee say I'm going to file a report with my supervisor claiming that that supervisor engaged in sexual harassment against me and then get protection under this statute in addition to the laws under the House of Rights code which is one you know for one one 2.02 I think the answer is probably not because if you think about that it would probably make the ohio personal board of review the hiyo silver ice Commission for all sexual harassment claims because of the provision says this is your exclusive remedy and second there are some federal cases as that's not the appropriate approach but another question you can ask can the employee file a report to their supervisor about the supervisors own misconduct and gain protection as a whistleblower right well the courts have already suggested no no because the idea here is that you this statute was written for you to blow the whistle to other people so they know about violation of law or misuse of funds and if you're just telling the supervisor who knows what he's doing anyway you're not really blowing the whistle and that comes from courts looking at the federal whistleblower protection acts and other cases the other question you can ask well can an employee gain whistleblower protection for filing a report alleging a violation of law or misuse of government funds if that is actually part of their normal job duties that's their job the file reports about violations of law in fact a lot of enforcement agency have to do a lot of attorneys and attorney general office do this Israeli part of their job can that gain the whistleblower protection and again the courts have suggested no if it's part of your normal job then you're not blowing the whistle you're just doing your job and that doesn't afford you the protections under this statute so open question of what if you is part of your job but you're you go outside the normal channels to report it maybe what if it's not a part of your job to investigate make reports but you're assigned the duty to investigate and make a report can you then make that report if you're retaliated against can you file under this protection that's an unanswered question so as I've indicated there's only 20 cases out there Court of Appeals cases that have dealt with it the personal board of review has had their own but let's take a look at those the the big case has really got into this issue is a 1999 case involving unclassified director of the man fill office who wrote a report complaining about inappropriate payments made by higher-level manager however the report was actually sent not to the appointing authority to the director but the directors assistant in the same office right and not the appointing authority of himself just the appointing authorities assistant well it's interesting in that case the court looked at it said note the requirement to file the report with the supervisor or the opponent appointing Authority is strict and you can't deviate from it and said you don't have the protection even though it went to the assistant of the appointing Authority the court also suggested that if done correctly that the the burden on the ploy is to show that the I personally destroyed this way the burden on the employee is to prove that they filed it correctly and then they have to show that the that their termination was the primary reason for why they were fired let's try that way there that the report that they filed and blowing the whistle was a primary reason for why they were fired so the burden is to for the employees one that you did the report you filed it correctly the report was adequate under the statute and then your termination was the primary reason we went through this quickly the other case is the viv okay switch is 2009 another case before the Ohio involving the Ohio Bureau of workers comp or was the director of alternative dispute resolution this individual sent a short memo saying quote this I I was told that a lot of money was lost through hedge funds with MDI right some of you guys may remember there was a big scandal about that but that is what the memo said in fact you know newspapers that eventually reported on the issue listed this employee as the source of those complaints and however the employer fired that individual not for making this memo they said but because this individual was doing schoolwork on state time and using state computers so the question was is this memo sufficient of a report to identify a violation of the law or misuse of state funds her argument was well not only did I do this report but also made an oral follow-up where I explained what that meant and the court looked at that said no again it has to meet the specific requirements and that requirement those requirements are that the memo must identify specifically the violation or misuse of public resources you can't supplement with oral reports you can't look at other communications each one it stands alone and again must have identified a clear violation and in that case the court held that the the report was simply too vague the other case is the haddock case this is the last one I'll deal with before I turn it over to my colleague here but the haddock case involved the Deputy Assistant AG who was supervising an another assistant attorney general and the Deputy Assistant was concerned about this employees use of time and the accrual of large amounts of comp time which was was appropriate and then that employee filed a report with the appointing Authority and but that report was actually authored by another employee a former AG but now another employee with another agency and the Haddock's employee did not sign it or write it but just delivered it and the question is is that sufficient report now the statute doesn't actually say anything about having to write it or to sign it and it doesn't talk about whether it's a report from another individual but the court looking at other cases interpreted that statute to say no the report Hash they actually either be written by or at least signed by the employee that is filing it you know the act of simply of reporting or being the courier is not enough to gain the protection under this under this statute and in fact the employee also tried to argue that well I also raised this when I did my performance evaluations of this employee raised this issue and the court looked at that as well and said well you know again if that is part of your normal duties as a supervisor to do performance evaluations then that's not really blowing the whistle that's just doing your job and based on some of the federal case law on the federal whistleblower Protection Act it's not covered so as you can see these are tricky cases to deal with and again the havoc skate Court had noted that there's very few cases on it had to look at the federal whistleblower protection acts and suggested really what we this law says is you actually have to blow the whistle and put your job at risk to gain the protection again just doing your job is not a no-no right and also suggested as we indicated earlier that if you're giving the report to the supervisor who you're accusing of doing violate you know violating the law or engaging misconduct then that's not protected as well the only interesting thing about this ruling and thinking is that the the federal whistleblower protection act was expanded in 2012 made it broader and it's going to be a question whether or not that expansion in the federal side is going to carry over into the interpretation on the state side all right the last case before we turned over to mr. Geiss is the Leslie versus Ohio Department of Development case and this was involving an attorney that was clearly sexually harassing an employee and was fired for doing so but claimed as an attorney that he had filed a number of reports that violated the involved a violation of the law and a misuse of public funds wasn't able to prove that that was actually true but there was no indication that the it was purposely made is false or recklessly done so the question really raised in that Court is you know does the employee have to actually prove that the report is true that there violation of law and a misuse of funds and the court said no he doesn't have to actually show that it's true as long as they had a reasonable belief that's true and that the report was it purposely or recklessly made is false all right with that I'm going to turn it over to mr. Geiss thank you thank you well I'm very pleased to be with you this morning right before lunch so if you can just hang with me for a few more minutes in my role as an administrative law judge I write reports and recommendations which go to a three-person board mr. Casey is the chairman of that board and then the parties to the appeal the appellant the person who brings the appeal the app he'll leave the person who defends the appeal they have an opportunity to write written objections and then the board considers my report and recommendation along with those objections and renders a final decision I want you to know that other than the facts that I discussed today I'm gonna give you some of my thoughts and impressions on a case that I heard and also a board opinion that it worked on but please understand that our final board decisions are online when the board speaks it speaks and writing and that's yeah I don't I don't accentuate or modify that in any way but I will share with you some of my thoughts and impressions on some significant cases or at least I believe they're significant they're on appeal both cases are on appeal with higher-level courts any school district employees in here okay so I have a couple and any teachers by by any chance any school administrators okay so school administrators you'll kind of probably understand this but you you may know that there's a law out there that allows teachers to buy computers tax-free sales tax free in the state of Ohio as long as they're using it for their educational mission it doesn't apply to administrators it only applies to teachers now picture yourself being an assistant treasurer technically classified as an account clerk for a City School District somewhere in Ohio and you know that your treasurer boss came in to hey check out this new Apple computer I bought for my daughter and you are the employee that had to process the requisition because the treasurer used the school's account to get a preferential price for the product at wholesale cost and didn't have to pay sales tax on it now what if I told you that this account clerk had her own issues with the treasurer because she had asked for a raise and the treasurer said now I'm not gonna give you a raise even though she felt very slighted because her friend and colleague got a raise because she had some new duties to deal with what she termed Obamacare but the ACA and she felt like hey I do all this work I should get a raise so no witnesses she's in a room with her or treasurer boss and supposedly what happens from what we can tell from the record is she says I'm at you your jerk because you didn't give me a raise and oh by the way I reported you to the auditor of state for your crime okay so here's our talent and and she did actually telephone the auditor and for one reason or another that auditor just didn't really do anything with it and there's no finding of recovery she waits for a time and she decides I'm gonna go to school board ok now mind you there was no written report to the auditor there is some there is some unique specifications in this statute about how to make a report to the auditor for misuse of public funds no written report thus far now she goes to the school board complains to probably two or three members no written report the school board from what I can tell from the record you know heard what she had to say but did not take any action upon it in the meantime the relationship between her nor boss gets worse and worse there's allegations flying that she's disrespectful she's not a team player she's impugning the integrity of the other employees in the office whether true or not we know that there's a conflict that much I can't from the record then she files a report with the County Sheriff okay on the theory subjectively in her mind that you know sales tax evasion and buying a computer on the school's account you know could be a crime okay at least subjectively there was a good faith belief there so the sheriff takes it real seriously now mind you the sheriff is in a dispute with the superintendent of the school district over how she handled a case where a teacher flashed a sex toy to a student so there's lots of conflict here okay and lots of motives so the app le the school district said hey this you should throw this case out ALJ guys cuz this sheriff he just has an axe to grind that's not what the statute says point of the matter is she filed a written report and she gave it to the sheriff and the sheriff took that report in seriously and actually launched an investigation now the investigation did not result in any convictions that we know of and for for all that I know is all charges were dropped okay at this point so there's never been any conviction never never been any charges that stuck to the treasurer by the way the treasurer offered evidence into the hearing though he did not appear at the hearing the treasurer said hey I paid the sales tax two years later he wrote a check to the ohio department of taxation for an amount which was for the same amount he would have had to pay if he paid it and then he also said hey look yeah I did buy it on the school's account but I reimbursed them the next day so the school was never out any money so the FLE the the state school district had tried to defend and say hey look there's no real crime here there's no real violation here all the guy did was he charged something on the accountant and all's well that ends well okay so I heard this case and it was a very very tumultuous because there was a lot of conflict and you kind of have to sort out in light of had ecstatics the dictum in Haddix dictum isn't really the holding of the case but it's a suggestion from the judges you might want to go this way even though it's not essential to the holding it's not actually law and you know Haddix has this view that you know you have to all true I'll true istic aliy put yourself out there to be hurt and and not have any fault of your own and do it for the good of the taxpayers it's not really what the holding of the cases but there's some suggestion and like CM said that's still good law here in Ohio even though as Sam suggested the federal law has been changed it's been recognized by the courts you don't have to you don't have to report something outside of your regular job duties at the federal level for federal whistleblower protection but because all of you could be potential whistleblowers everybody in this room had X is still good law in Ohio and if you do report a violation it does have to be something that's outside your regular job duties and that's still the case now although that issues on appeal in the second ca e I'll talk about very quickly so anyway I I found that the real reason that Mis Haddix was fired was due to her report to the sheriff it really was in my view the straw that broke the camel's back the superintendent was very upset over it because she had had some bad blood with the sheriff before and and so it was a big deal it was just a big deal the board in their wisdom or not agreed with me now they're pretty wise and the the case was appealed to the Common Pleas Court where Judge French who used to be a school board member for Westerville I don't know or never never seen her in my life but I know that about her background she seemed to kind of agree wow this isn't just a de minimis deal this was this was a real report of a real violation treasures aren't really supposed to do that and all's well Dan's well isn't a good excuse basically she agreed and thought that the employee had a legitimate report and she sustained the board's decision the city schools took the case on appeal it's going before the tenth District Court of Appeals and they are arguing at number one it's incumbent upon the appellant to prove that the firing was only because of the report in nothing else very high standard about four I don't know that the law extends that far I heard Sam mentioned primary reason I had mentioned a mix possible mixed motive in the case because I know that she was probably mad about not getting a raise too but I know that she was upset that this treasure did what he did and she had reason to believe it was so so they took that and jumped on and they're like oh no you can't do that unless you and by the way at the end of my report and recommendation I said it was about four cause but so there's gonna be a fight in the 10th district about gee just how much your report has to be do tooth this is the filing of the report has to be about your subjective belief right what's the good-faith standard good faith standard in the statutes pretty simple it just says it has to be accurate well she was very accurate but in Haddix once again it's a pivotal case in our Ohio jurisprudence Haddix suggests that you can look at the context and the content of the report so how to suggest although it doesn't say that if you file a valid report and it's legitimate if you really only filed it because you hate your bosses tie colors or blazer outfits that you don't get any protection we'll see what happens at the 10th district I don't know when that case is going to come down the last case I want to talk about very quickly in about two minutes is the Martin Desmond versus Mahoning County prosecutor now Martin Desmond has been an assistant prosecutor in Mahoney County for a long time in fact I've seen him on TV before on those crime shows like ID discovery and beyond they're talking about you know people who were in the 1980s and Youngstown so he's a little bit of a gentleman who has a little bit of TV experience he has just filed another lawsuit which raises implications of collateral estoppel or res judicata if if free lawyers out there but we'll see where that goes let me get back to the case the board adjusted the ALJ's decision and and Magritte with everything there are late Elaine Stephenson wrote it adopted it in the entirety and she felt that Desmond did not make out a good whistleblower report under the law the board adopted her and also had some additional grounds for why the report wasn't valid in a nutshell Desmond sends an email to the prosecutor and says hey I'm worried about this criminal case we have that it's going to get dropped in and the charges are going to get dismissed against the defendant and I think I found this case that's gonna cure this we need to bring it up to the judge and oh by the way my fellow APA she kind of buffed this case up she's just not very good well the prosecutor apparently didn't really care for that and had found some additional misconduct that he felt was legitimate and fired mr. Desmond for having supposedly contact with the defense attorney that in a case that he was not assigned to and that compromised this criminal case but the big issue in this case was prosecutor came back and said okay mr. Martin tell me what you know and mr. Martin was on vacation you spent some time with family in about six weeks later after he finally got a direct order to provide a report he finally writes a memo and says hey I think my colleague messed up this case muffed it up and may have committed some prosecutorial misconduct basically the ruling of this bore without getting into without going overtime the big takeaway from this is and by the way this is on appeal and the Mahoning County Common Pleas visiting judge is taking the because the judges and the prosecutors all know each other up there so Supreme Court justice Chief Justice appointed a special judge for it but the big takeaway is you got to write the report you have to initiate it you can't probably rely on a report that was ordered to be completed by your employer it's lunchtime thank you