Picken filed his recusal notice July 11 — three days before the original trial was scheduled to begin — after the court found that a lawyer for the state of Ohio, which is prosecuting the case, was a former subordinate.
The dismissal request, filed by Cozad’s lawyer Jim Fleisher, claimed that the Auditor of State’s office lacked independent authority to initiate criminal prosecutions, that the criminal complaint was noncompliant with Ohio law, and that Xenia Law Director Donnette Fisher misused her authority in appointing special prosecutors to handle the case, all claims which the judge found meritless, according to the filing.
Landefeld also struck down Fleisher’s motion to dismiss the case on constitutional grounds. Fleisher had asserted in his filing that the criminal charges that Cozad and current and former school board members face are unconstitutional because Ohio laws concerning tax levy communications are vague, and the law is arbitrarily enforced. Additionally, Fleisher said prosecution of charges would have a “chilling effect” on the ability of elected officials to communicate information to the public.
“This defendant, or any member of a board of education, may speak or write in support of or in opposition to any of the listed matters on their own time,” Landefeld said. “The only time such support or opposition becomes impermissible is when there is a use of public funds to either support or oppose the candidate or matters.”
Cozad faces eight misdemeanor charges, including four counts of illegal transaction of public funds and four counts of dereliction of duty, Xenia Municipal Court records show. Former board members Liz Betz and Virginia Slouffman, and current board president David Carpenter each have been charged with one count of of illegal transaction of public funds and one count of dereliction of duty.
Cozad and the board are accused of misusing public funds to support the passage of a May 2019 school levy, including allegedly authorizing district funds to pay for newsletters promoting the levy. An affidavit from Auditor of State fraud investigator John Uhl says in one example, the district used $5,214 in public money to send messages saying “Continue the excellence with the passage of Issue 4.”
Newsletters paid for by school districts have long walked a thin line between sharing positive school information with voters, which is allowed, and openly campaigning for passage of a tax levy, which is not.
The new jury trial date for all four has been set for Oct. 3.
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