Legal opinion rejects charging police commander
An independent prosecutor has determined that a Columbus police commander should not be charged with dereliction of duty after sending emails containing allegations of child abuse to his junk email folder.
Dayton City Attorney Barbara J. Doseck wrote in a three-page opinion to Columbus City Attorney Zach Klein that, although the statute of limitations has not expired for any possible charges, there is no probable cause to charge Cmdr. Mark Gardner.
State Rep. Bernadine Kennedy Kent, D-columbus, has accused Gardner of dereliction of duty after Gardner said in a 2014 deposition in a civil case that he sent her emails to his junk folder. Gardner’s deposition is available on Youtube.
Columbus police legal adviser Jeff Furbee had determined that the statute of limitations to charge Gardner had lapsed. Klein reviewed that opinion last year and asked Doseck to make a determination as an independent prosecutor.
“Obviously, an attorney or prosecutor has looked at this and determined there was no wrongdoing by Cmdr. Gardner, as he has expressed all along,” said Keith Ferrell, president of Fraternal Order of Police Capital City Lodge No. 9, which represents commanders and others in the Police Division below the rank of deputy chief. “We consider the matter closed.”
Kennedy Kent has made regular appearances at Columbus City Council meetings over the past year to ask for an investigation of Gardner’s actions.
“I’m very disappointed. I do not accept it because there has been no investigation,” Kennedy Kent told The Dispatch on Wednesday.
Doseck’s legal opinion points out that Ohio law defines dereliction of duty as a public official failing to perform a duty “expressly imposed by law.”
“There is no duty expressly imposed by law mandating a police department or, in this case, a commander reopen an investigation that, in his professional opinion, was investigated thoroughly,” Doseck wrote. “… There is no duty expressly imposed by law mandating a police officer review emails.”
Kennedy Kent said her messages were more than emails.
“What they call emails were child-abuse reports. They were in writing, and it was an email, but it was a child-abuse report,” she said.
Gardner’s attorney, Russell E. Carnahan, said in an email to The Dispatch that Doseck’s review confirms that Gardner “did nothing wrong with respect to his handling of repetitive harassing emails” from Kennedy Kent.
“Ms. Kent’s claim that her emails contained ‘allegations of child abuse’ is simply not accurate. Unfortunately, because investigations of alleged child abuse are protected and must be kept confidential, the public cannot be provided additional information that describes the entirety of the events in this matter,” Carnahan said.