To the editor:

Progress Ohio and Common Cause are seeking removal of Ohio Supreme Court Justice Terrance O'Donnell from the ECOT case, citing a long-standing relationship with the ECOT owner/operator.

Oral arguments in the ECOT case will be heard by the Ohio Supreme Court on Feb. 13.

Justice O'Donnell is a recipient of campaign money from ECOT. He served as the ECOT graduation speaker in 2013. His close association with the ECOT man is documented in the following press release.

Bill Phillis
Ohio E&A

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(From Sandy Theis for Progress Ohio and Common Cause)

Citing a close personal relationship with ECOT founder William Lager and campaign contributions from him, government watchdog groups filed an ethics complaint against Ohio Supreme Court Associate Justice Terrence O’Donnell and urged him to step down from hearing an upcoming case involving the embattled online charter school.

Common Cause Ohio and ProgressOhio asked the Office of Disciplinary Counsel to investigate Justice O’Donnell.

“A case of this magnitude demands that all justices avoid creating a perception of bias,’’ said Catherine Turcer, Executive Director of Common Cause Ohio. “Justice O’Donnell’s long-standing affiliation with ECOT’s founder, coupled with contributions from him, cross the line.’’

The complaint states that Justice O’Donnell’s relationship with Mr. Lager violates the Ohio Code of Judicial Conduct’s call to “avoid the even the appearance of impropriety” and “act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary."

In addition to a $3,450 donation to Justice O’Donnell’s campaign from Mr. Lager, the complaint raises the following concerns:

• In 2013, Justice O’Donnell served as ECOT’s commencement speaker – an invitation extended to politicians with a history of supporting the chronically failing charter school. His speech took place before a banner that incorrectly identified him as the “chief justice.’’

Other ECOT commencement speakers include Gov. John Kasich, Secretary of State Jon Husted and Auditor David Yost. Each speaker received campaign contributions from Mr. Lager or his affiliated companies.

• Justice O’Donnell used the Ohio Supreme Court’s taxpayer-funded resources to publicize his pro-ECOT remarks. In a June 12, 2013, post on the high court’s website, Justice O’Donnell boasts that he spoke to “the largest high school graduating class in the nation’’ and praised ECOT’s students as “ those who have achieved so much against, in some cases insurmountable odds….’’

His remarks included no mention of ECOT’s consistently abysmal academic record.

• In a YouTube video of his remarks, Justice O’Donnell casually tells how Mr. Lager called him at the Supreme Court to extend the speaking invitation. It goes without saying that most people would be unable to get a sitting justice on the phone with such ease.

On Feb. 13, the Supreme Court will hear arguments on Ohio’s efforts to recover more than $60 million from ECOT because it over-reported its attendance. The dispute centers, in part, on a state audit that found ECOT could not properly justify the number of full-time students it had enrolled.

ECOT lawyers asked the justices to hear arguments over four “propositions of law,” but the court decided to hear only one: whether the state had legal authority to revise how it counts e-school enrollment. Chief Justice Maureen O’Connor voted against hearing ECOT’s appeal and would have allowed the 3-0 ruling by the Franklin County Court of Appeals against ECOT to stand. Justices O’Donnell and Sharon Kennedy voted to consider all four points that ECOT sought to have heard in its appeal.

In a related matter, decided 6-1, Justice O’Donnell was lone member of the court who sided with ECOT. His colleagues voted to deny a writ sought by ECOT to block the Ohio Department of Education and State Board of Education from demanding repayments from ECOT.

There is precedent for justices to recuse themselves in similar instances, according to the complaint. It references the June 8, 2009, U.S. Supreme Court ruling in Caperton v. Massey. In a 5-4 opinion written by Justice Anthony Kennedy, the court concluded that, given the "serious risk of actual bias," the Due Process Clause required the recusal of Judge Brent Benjamin.

Justice Kennedy, writing for the majority:

"We conclude that there is a serious risk of actual bias – based on objective and reasonable perceptions – when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge's election campaign….’’