IN THE CLEVELAND MUNICIPAL COURT

CLEVELAND, OHIO

IN RE: )
)
Kevin Kelley ) JUDGE
)
) Affidavit of Person Having
) Knowledge of Offense R.C.
) 2935.09 2935.10
)
) Ord. No. 615.06 Obstructing Official
) Business
)
) Ord. No. 615.09 Personating an Officer
)
) Ord. No. 615.12 Dereliction of Duty

STATE OF OHIO )
) SS:
COUNTY OF CUYAHOGA )

Now comes, Eric Jonathan Brewer, and after being duly-sworn according to law, deposes and states

that he is of full legal age, has personal knowledge of all matters stated herein, and is otherwise competent

to testify to the matters set forth below.

Further, Affiant states the following:

1. My name is Eric Jonathan Brewer.

2. I am a resident of Cleveland, Ohio in Cuyahoga County and have been for more than six months

prior to this Affidavit.

3. I am the former Mayor of the City of East Cleveland, a former Special Assistant to the Mayor of

Cleveland, former Chief of Staff to the Mayor of East Cleveland; and a veteran journalist with

extensive knowledge of Cleveland municipal government and its officials that dates back to 1979.

4. I have had the opportunity to review events leading up to the enactment of Ord. No. 305-17 and

Ord. No. 469-17 on April 24, 2017, and to compare the acts of Council's president to Cleveland's

charter, ordinances and general laws governing municipal corporations. Both are the ordinances

Kevin Kelley led Cleveland city council to deliberate and vote on that awarded $88 million to
 support funding the renovation of The Q sports arena.

5. Kevin Kelley at all relevant times during the acts that are the subject of this Affidavit served in the

official capacity as President of Cleveland City Council and was administered oaths to perform the

duties of a single legislative officer of the municipal corporation.

6. On April 24, 2017 Kelley, in his capacity as President of Council, scheduled and presided over a

3:00 p.m. news conference and delivered an announcement on the front steps of 601 Lakeside

Avenue that weekend negotiations had resulted in community benefits agreement. The

agreement purported to support Kelley's intent to deliver an $88 million deal that favored

Cuyahoga County Executive Armond Budish and Cavaliers owner Dan Gilbert's desire to obtain

funds from the City of Cleveland to renovate The Q Arena.

7. The attached Cleveland Scene news story written by Sam Allard, and dated April 25, 2017,

confirmed that Kelley, a member of the City of Cleveland's legislative branch of government,

performed administrative contract negotiation and preparation duties Ohio law and Cleveland's

charter reserved for the mayor and director of law. Specifically, Allard wrote the following:

According to Frank Jackson, it was Kelley himself who worked this weekend to negotiate these

additional community benefits.

8. Allard obtained the information for his news story from a video recording Mayor Frank Jackson

uploaded to the city's website on Tuesday, April 25th. At 10 minutes and 33 seconds into the

recording, Jackson spoke the following words to describe Res. No. 469-17: This second piece is

one that I have to give the council president a lot of credit for. He worked this arrangement along

with many others. But primarily him. And this gives us the best community benefits that I've ever

witnessed in my life as a public official since 1990.

9. Four hours after Kelley's news conference, and at the 7:00 p.m. regular meeting of Cleveland city

council, he presided over a vote to ratify the duty exceeding community benefits agreement he

secretly negotiated on behalf of the municipal corporation, and in criminal violation of general state

laws and ordinances that did not authorize a member of the legislative branch of government to
 perform the administrative duties of the Mayor and Director of Law.

10. Ord. No. 469-17 was not placed on the agenda and the public was given no advance notice of its

existence pursuant to Cleveland's Charter and Ohio's open meetings laws. Neither were members of

the city's legislative authority who learned of Kelley's legislation at 7 p.m.. It was not read three

separate times as required by the Ordinance Enactment procedure identified in the city's Charter. It

did not meet the definition of an emergency as prescribed by the Charter.

11. Kelley then presided over a voiced yea or nay vote on Ord. No. 469-17 and enacted it as an

emergency with some of the following language: Section 1. That the President of Council is

authorized to accept commitments memorialized in this legislation and in Supplemental Agreement

No. 1 to the Cooperative Agreement between the City of Cleveland and the County of Cuyahoga

and the Cavaliers Operating Company LLC relating to the 2017 Quicken Loans Arena Project,

which commitments include the following:

12. Kelley then followed with a vote to enact Ord. No. 305-17, which was referenced in Ord. No. 469-

17.

13. To enact Ord. No. 305-17, Kelley chose not to preside over a voiced yea or nay vote Chapter 5,

Section 30 of Cleveland's charter requires. Ord. No. 305-17 was enacted under the assumption

that the council members who'd voted on April 7, 2017 would vote the same way. There was no

roll-called yea or nay vote on Ord. No. 305-17.

14. During the regular council meeting on April 24, Assistant Director of Law Richard F. Horvath

informed members of council that the Department of Law was not involved in Kelley'scommunity

benefits negotiations. Horvath is the city's chief corporate counsel.

15. Kelley is not an attorney licensed to practice law in Ohio nor is the President of Council authorized

under any general law, Cleveland's charter local ordinance to perform legal duties on behalf of the

municipal corporation.

16. The net effect of Horvath's public statement was that Kelley and other unnamed legislative officials

had exceeded the authority of the public offices they hold and usurped the administrative authority
 of Mayor and the Director of Law to negotiate and prepare contracts on behalf of the municipal

corporation under Ohio law and Cleveland's Charter.

17. Kelley is a member of Cleveland city council who was elected by a majority of the members of the

legislative authority to perform the duties of the President of the Council pursuant to Chapter 5,

Section 30 of Cleveland's charter. The duties prescribed to the President of Council were for Kelley

to preside at meetings of the Council and perform such duties as presiding officer as may be

imposed upon him by the Council.

18. In his official capacity as Council President, Kelley knew or should have known that Chapter 5,

Section 26 of Cleveland's charter imposed the following limitations on his conduct as a member of

the legislative branch of government. No member of the Council shall, except in so far as is

necessary in the performance of the duties of his office, directly or indirectly interfere in the

conduct of the administrative department ...

19. In his official capacity as Council President Kelley knew or should have known that R.C. 731.05, an

unsuspended general law of the State of Ohio, instructed him not to perform any administrative

duties of the municipal government that were reserved to the office of Mayor and Director of Law.

The powers of the legislative authority of a city shall be legislative only, it shall perform no

administrative duties, and it shall neither appoint nor confirm any officer or employee in the city

government except those of its own body, unless otherwise provided in Title VII [7] of the Revised

Code.

20. Kelley further knew or should have known that in addition to R.C. 731.05's instructions above, he

was also guided by the following words in the statute: All contracts requiring the authority of the

legislative authority for their execution shall be entered into and conducted to performance by the

board or officers having charge of the matters to which they relate. After the authority to make

such contracts has been given and the necessary appropriation made, the legislative authority

shall take no further action thereon.

21. Kelley knew or should have known that Chapter 5, Section 36 of Cleveland's Charter did not
 authorize the President of Council to preside over a meeting where emergency legislation was being

introduced in violation of it. ... no measure making a grant, renewal or extension of a franchise

or other special privilege, or regulating the rate to be charged for its services by any public utility,

shall ever be so passed.

22. Kelley knew or should have known that pursuant to Chapter 11, Section 70 of Cleveland's charter,

The executive and administrative powers of the City shall be vested in the Mayor, directors of

departments and other administrative offices provided for in this Charter or by ordinance.

23. Kelley particularly knew Chapter 11, Section 71 of Cleveland's charter spelled out in no uncertain

terms that there can only be one duly-authorized mayor in charge of the city's administrative affairs,

and that the section of the charter affirming this mayoral duty had remained unchanged since

November 9, 1931. It shall be the duty of the Mayor to act as chief conservator of the peace

within the City; to supervise the administration of the affairs of the City; to see that all ordinances

of the City are enforced; to recommend to the Council for adoption such measures as he may deem

necessary or expedient; to keep the Council advised of the financial condition and future needs of

the City; to prepare and submit to the Council such reports as may be required by that body, and to

exercise such powers and perform such duties as are conferred or required by this Charter or by the

laws of the State.

24. Kelley knew pursuant to Chapter 15, Section 83 of Cleveland's Charter, under the heading Director

of Law, that voters on November 9, 1931 enacted the unchanged duties of the official. The

Director of Law shall be an attorney at law admitted to practice in the State of Ohio. He shall be

the legal adviser of and attorney and counsel for the City, and for all officers and departments

thereof in matters relating to their official duties. He shall prosecute or defend all suits for and in

behalf of the City, and shall prepare all contracts, bonds and other instruments in writing in

which the City is concerned and shall endorse on each his approval of the form and correctness

thereof. No such bond, contract or instrument shall become effective without such endorsement by

the Director of Law thereon.

 25. The official duties of the President of Council as a single member of a 17-member legislative

authority did not grant Kelley any legal authority whatsoever to negotiate and prepare a legal

document he created and captioned a community benefits agreement or any other agreement that

binds the municipal corporation of Cleveland.

26. More specifically, upon examination of the City Record for 2016 and 2017, there is no record of

legislation council enacted authorizing the Mayor or Director of Law to negotiate or prepare a

contract with the officials of Cuyahoga County, the Gateway Economic Development Corporation

or the Cavaliers to deliver them $88 million in public funds to renovate The Q.

27. Absent any authorizing legislation prior to Kelley's secret weekend negotiations, no municipal

official was granted any advance authority to otherwise engage or negotiate Q renovation or

community benefits agreements with county and corporate officials.

28. The evidence and facts support the Affiant's R.C. 2935.09 claim that Kelley acted in excess of the

duties granted to Presidents of Council under Cleveland's Charter and Ohio law when he personally

negotiated a legal matter on the City of Cleveland's behalf, and that in so doing he obstructed the

official business of the City of Cleveland by personating to others that he was the duly-authorized

law enforcement officer of the municipal corporation with the authority to perform administrative

duties granted to the Mayor and Director of law.

29. Affiant requests this Honorable Court to cause Kelley's arrest and prosecution pursuant to R.C.

2935.10, and for the offenses identified herein.

FURTHER AFFIANT SAYETH NAUGHT

____________________________________
Eric Jonathan Brewer / 216-310-1110

Sworn to and subscribed in my presence this ______ day of April, 2017.

_________________________________
Notary Public