Cuyahoga County Prosecutor Michael O’Malley is asking for a special prosecutor to assist in a challenge alleging Cleveland Councilman Jeff Johnson is ineligible to hold public office.

O’Malley’s request for assistance from Ohio Attorney General Mike DeWine was declined Tuesday afternoon. He had suggested that DeWine’s office is best suited to provide guidance on an issue that has statewide implications.

AG Mike DeWine RE Elections Board by Anonymous TKE8QNYOdo on Scribd

DeWine's office, however, declined the appointment, citing their own potential conflicts and separation of powers concerns. The office noted that the Secretary of State office may be asked to break any tie votes, should the elections board take action.

As a result, O'Malley's office reached out to Summit County Prosecutor Sherri Bevan Walsh, who agreed to handle the case.

The special prosecutor is responsible for providing legal advice and opinions to the elections board members.

O’Malley, who like Johnson is a Democrat, also wrote in his letter that he is seeking a special prosecutor to avoid the appearance of a conflict of interest.

At issue is whether Johnson’s 1998 conviction for violating the federal Hobbs Act constitutes bribery, therefore making him ineligible under Ohio law to serve on the council or serve as mayor, a position is he now seeking.

A similar challenge has apparently never happened in state history. And Johnson’s ability to serve in public office has never formally been challenged, despite his election to council eight years ago.

The county elections board has scheduled a May 15 hearing to consider a citizen’s complaint filed last month that asks that Johnson be removed from office and the September mayoral ballot. That meeting could be postponed, if a special prosecutor is assigned.

Ohio law specifically sets a lifetime ban on holding public office for anyone convicted of bribery. Johnson was convicted of taking thousands of dollars in cash from local merchants in exchange for his help in obtaining political favors. The exchanges were recorded by the FBI.

Johnson was indicted on Hobbs Act violations and contends that his conviction stems from extortion and not bribery, and he is thus not subject to the ban.

“The (Department of Justice) chose to charge me with a Hobbs Act violation – not with bribery,” Johnson wrote in a three-page statement sent to the elections board this week. “If I had committed bribery, the DOJ would have charged me with a bribery violation…”

He also said that a county judge in 2008 granted his request, “expunging and sealing my federal court conviction.”

Jeff Johnson Response to Protest by Anonymous TKE8QNYOdo on Scribd

Johnson did not include a copy of the order with his filing.

However, “This [expungement] is not the reason I believe I am legally qualified for public office,” Johnson wrote to the board. “I am legally qualified to hold public office because I have NOT been convicted of bribery.”

Edwin Davila, who filed the complaint against Johnson and his candidacy, disagrees with Johnson’s interpretation. He points to U.S. Supreme Court rulings that found that the Hobbs Act includes bribery.

Davila Letter by Anonymous TKE8QNYOdo on Scribd

In addition, federal prosecutors use the Hobbs Act to investigate corruption by local and state public officials. The federal bribery statute is reserved for federal public office holders and workers.

Davila, a former attorney who lost his license following a money laundering conviction, has also now filed an 18-page response alleging that Johnson’s conviction constitutes bribery. He also cited a prior U.S. Supreme Court ruling that held the Hobbs Act is “the rough equivalent of what we would now describe as taking a bribe.”

Davila contends that the board would set a bad precedence, if it allowed Johnson to serve. Others convicted of violating the Hobbs Act include former Commissioner Jimmy Dimora.

"Allowing Johnson to run for office would open the floodgates for all similarly situated individuals who have been convicted of bribery to hold office after obtaining  a state court expungement," he wrote.  "Such individuals would include Jimmy Dimora and others convicted in the massive Cuyahoga County corruption scandal."