Monday, July 04, 2005



“The history of the present King is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute tyranny over Portsmouth. To prove this, let facts be submitted to a candid world.” Or so say I.

On this July 4th weekend I am thinking not only of the Declaration of Independence but of May 24th, 2005, and of another document that was signed on that day here in Portsmouth, Ohio. I hold a Ph.D. in American Civilization, and as a student and teacher, and as the coordinator of a Yale-based committee that organized a series of conferences around the world prior to the celebration of the American Bicentennial, in 1976, I have in my time seen a lot of American documents. But I have never seen one that mocks the Declaration of Independence and the ideal of American democracy as blatantly and cynically as the one that was signed on May 24th, 2005, by Portsmouth’s acting mayor James Kalb and city solicitor David Kuhn, representing the city of Portsmouth, and by Julia Wisniewski, representing the Richard D. Marting Foundation. That infuriating document, which the city solicitor gave the innocuous name “Marting’s Foundation Grant Agreement and Release,” deserves to be studied for the revealing light it throws on the tyranny that exists in Portsmouth as a result of the unholy alliance between crooked politicians and crooked lawyers.

The depth and pervasiveness of that tyranny cannot be appreciated unless we note that there appeared to be a sort of political revolution last year in Portsmouth. Following the revelation that the city had purchased a former department store at a wildly inflated price of $2,000,000 from the Richard D. Marting Foundation, Mayor Greg Bauer and two members of the Portsmouth City Council, Ann Sydnor and Carol Caudill, were recalled from office as a direct result of that scandalous sale. In spite of the support he received financially from well-heeled backers and editorially from the Portsmouth Daily Times and from the weekly Community Common, Mayor Bauer was recalled by a 2 to 1 margin. The recall movement was bi-partisan, for crooked/honest, not Republican/Democratic was what mattered. June 22nd, 2004, the day Mayor Bauer and the others were recalled, had some of the feel of July 4th, 1776, as I showed in Recall, the video that is now available at the Shawnee State Clark Memorial Library and the Portsmouth Public Library.

The political victory was followed by a stunning legal victory when a suit brought by community activists Bob and Teresa Mollette against the Marting Foundation led to a ruling by Judge Marshall that invalidated the sale of the Marting’s building to the city. Mollette’s attorney had argued that Clayton Johnson had conducted secret illegal negotiations with members of the city council, and Judge Marshall agreed. Johnson is playing the role of King George III in Portsmouth’s contemporary history, but fortunately there are some patriotic people in the city not intimidated by him.

But the political and legal victories of the reform movement did not end the tyrannical rule of crooked politicians and crooked lawyers, as the “Marting’s Foundation Grant Agreement and Release” sadly reveals. What that agreement does is not only put the Foundation and everyone associated with it, including Clayton Johnson, beyond the reach of the courts, it also stipulates a number of conditions that the city would have to meet in order to get back any part of the $2,000,000 the Foundation had previously illegally acquired from the city.

To quote the language of the May 24th agreement, which protects Johnson and the Foundation from any legal action: “the City hereby releases and discharges the Foundation and Marting Brothers from any and all claims or causes of action, from the beginning of the world to the date of this Agreement, arising out of the Dispute and the Purchase Agreement, including any and all claims asserted or which could be asserted which the City has or may have against the Foundation and/or Marting Brothers, whether such claims are legal or equitable, known or unknown, contingent or matured, or joint, several or individual. The release by the City is also intended to and does release and discharge the agents, affiliates, subsidiaries, related business entities, insurers, successors, attorneys, officers, directors, board members, assigns, and all and every other person who has worked for or on behalf of the Foundation and/or Marting Brothers.” With this agreement Johnson not only covers his own ass from the beginning of the world to all eternity, but he also covers the asses of every party however remotely related to the Foundation and the crooked sale of the Marting building.

In the agreement the Foundation on its part agrees to give the city the Marting building, but the Marting Foundation never wanted this worthless property in the first place; the Marting building is like the Old Maid in the card game: whoever gets stuck with it loses. I think the Foundation may have been created primarily to unload the Marting building, preferably by selling it to some foolish buyer or, failing that, by giving it away, which ended up being the only way the Foundation could get rid of it.

Councilman Marty Mohr was right about one thing when he told a Columbus Dispatch reporter last year that he had made a study of retail property and decided the Marting building “ain’t worth anything.” (After being courted by King George and after real estate developer Neal Hatcher named an SSU dormitory in Hatcheville in honor of the Mohr family, Marty Mohr changed his mind about the value of the Marting building.) As long as the Marting Foundation owned the building, it presumably would have had to pay taxes indefinitely, assuming the Foundation had not finessed those, too; there was little chance that any retailer would buy it. Giving the building away, provided someone would take it, might at least make a tax-write off possible, as had been the case when Johnson arranged to have the very dubious assets of the defunct Travel World agency donated to Ohio University, at Ironton.

What makes the May 24th agreement one of the most infamous documents in Portsmouth’s history is, first, that the Foundation, after Judge Marshall’s invalidation of the sale, did not agree to return the $2,000,000 it had received from the city but only $1,405,000, because the Foundation had lost nearly $600,000 on risky investments.

"Honey, I shrank the $2,000,000!"

Section of Marting's Agreement with city of Portsmouth showing how, through poor investments, the Marting Foundation shrank the city's $2 million to $1.4 million

Even though Judge Marshall had ruled that Johnson had violated the law in the underhanded way he had conducted negotiations for the sale of the building, the Foundation would not agree to return all the money it had received but only whatever portion of it that remained at such time that it might return it. The high-handed attitude of our King George can be explained by the unwritten rule that possession is ninth-tenths of the law, even if what you possess you acquired illegally.

But Johnson and the Foundation did not stop there: he also set conditions that the city would have to meet before the Foundation would turn over what ever remained of the $2,000,000, for there was no guarantee that the $1,405,000, with fluctuations in the market, would not shrink some more. Here is the relevant passage from the agreement:

“The Foundation agrees to deliver the Foundations Assets” [that is, the money the Foundation obtained illegally from the city], if “The City agrees that the Foundation Assets shall be used exclusively for one (1) or more of the following purposes: City Police Station, Portsmouth City Offices, or a national or regional retail establishment . . . The City agrees that the Foundation Assets may be used for rehabilitation and renovation of 807 Washington Street, commonly known as the Adelphia Building, for a Permitted Use; and/or (ii) the balance, including any sums which the City shall decide not to allocate to the use and purpose described in Clause (i) herein, to rehabilitate and renovate, or to tear down and rebuild at the main Marting Building, 515 Chillicothe Street, and any other of the Marting Properties, for a Permitted Use."

Imagine a con artist being arrested for illegally selling a worthless painting for $2,000,000, and then agreeing to return only part of the $2,000,000 but only if the defrauded party agrees to keep the painting and spend a specified amount of the returned money on restoring the worthless painting. Oh, and in addition, the con artist insists that any money left over should be spent on restoring another painting of dubious value (the Adelphia building).

We mustn’t lose sight of the fact that con artist King George is not asking for the Marting building back. If you miss that point, you miss everything. Hell, that Old Maid is the last thing he wants back in his hands. No one in his right business mind wants a square foot of that property. As a former employee of Marting's says in Recall, "I know every stinking inch of that building." Johnson's got the city’s money, and he doesn’t want to spend another nickel on that 100-year-old worthless old maid.

But King George the con artist is not done dictating conditions in the Agreement, for the city has to submit a specific plan for a Permitted Use (that is, plans for the Marting and possibly the Adelphia building) within 36 calendar months or lose all claims to the Foundation’s assets (i.e., the city money it holds). "Do exactly what I tell you to do in the time I have told you to do it or you will not get a cent of your money back!" Our spineless and corrupt city government is reduced to being a pawn of this small town dictator.

In his memo to the city officers, accompanying the “Marting’s Foundation Grant Agreement and Release,” solicitor Kuhn wrote, “Please review the agreement carefully, so that the time constraints are met in order for the City to take full advantage of the Agreement.” The city take full advantage of the Agreement? Anyone who reads the agreement carefully should conclude that it is the city that is being taken full advantage of. What the solicitor is really saying is let’s push this crooked deal through as fast as we can, for what the “Marting’s Foundation Grant Agreement and Release” really is, I say on this 4th of July weekend, is a royal screwing.