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Supreme Court of Ohio Clerk of Court - Filed October 05, 2015 - Case No. 2015-1472

In the

Supreme Court of Ohio STATE OF OHIO ex rel. Michael T. McKibben, an Ohio Citizen Relator, vs.

Case No. 2015-1472 Original Action in Mandamus

OHIO ETHICS COMMISSION, MICHAEL V. DRAKE, Ohio Public Servants, Respondents.

FIRST AMENDED COMPLAINT FOR WRIT OF MANDAMUS AND OPPOSITION TO RESPONDENT MICHAEL V. DRAKE’S MOTION TO DISMISS RELATOR’S COMPLAINT FOR WRIT OF MANDAMUS

Michael T. McKibben 1676 Tendril Court Columbus, Ohio 43229-1429 (614) 890-3141 [email protected] RELATOR, PRO SE

Michael J. Hendershot (#81842) Assistant Attorney General 30 East Broad Street, 17th Floor Columbus, Ohio 43215 (614) 466-8980 [email protected] Molly J. Bruns (#70972) Investigative Attorney Ohio Ethics Commission William Green Building 30 West Spring Street, L3 Columbus, OH 43215-2256 (614) 466.7090 [email protected] Counsel for RESPONDENTS

TABLE OF CONTENTS Case Caption ........................................................................................................................ i Request for Relief Summary.............................................................................................. iii Table of Contents .................................................................................................................v Exhibits .............................................................................................................................. vi Table of Authorities ........................................................................................................... vi Tables, Figures, Other ...................................................................................................... viii Why is Michael V. Drake going to such great lengths to avoid disclosing his personal financial holdings? .......................................................1 Respondent’s Motion to Dismiss should be denied .............................................................1 First Amended Complaint for Writ of Mandamus.........................................................3 Relator’s Inspection of Records Request and Response from the Ohio Ethics Commission and Dave Yost — Auditor of State .............................................3 Relator’s Complaint to the Ohio Ethics Commission ..........................................................4 Relator’s Complaint to the Ohio Auditor of State ...............................................................4 Ohio Ethics Commission joined to this action.....................................................................4 Michael V. Drake refuses to provide information that he has a duty to disclose ................5 Public Records Act must be construed liberally in favor of broad access ...........................5 Drake agrees that stock and bond portfolio companies held in mutual funds are readily available for review, yet has not disclosed his mutual funds .........................6 Mutual funds have become a way to hide white-collar bribery ...........................................8 Drake wastes many peoples’ valuable time .........................................................................9 OEC and Sunshine Complaints prove Respondent is incorrect .........................................12 Michael V. Drake knew or should have known that his Financial Disclosure was improper ..................................................................13 No investment disclosure ........................................................................................16 No mailing address..................................................................................................17 Ambiguous food and beverage disclosure.............................................................17 All beneficial interests should be disclosed .......................................................................18 Public persons must err on the side of disclosure, not concealment ..................................20 Drake’s omissions and false statements shifted the privilege of construing the Advisory’s mutual fund ambiguity in favor of Ohio citizens .............................21 The public must impute mischief given the withheld disclosures .....................................22 $100,000 per year Bank of the West director fees .............................................................22 University of California Irvine conflicts of interest policies .............................................22 -iii-

University of California Irvine fertility clinic scandal and cover-up of the sale of human eggs and fertilized embryos .........................................................22 Charles D. Martin Relationship......................................................................................23 “46 boards of directors of public and private companies .........................................24 “Over 80 CEOs of California companies..................................................................24 Eastman Kodak (John C. Lane, Chief Investment Officer, OSU) ............................24 Engineering physics degree and five majors (physics, mathematics, chemistry, electrical engineering and business) ............24 Ford, Vistage (OSU Fisher School of Business) ......................................................24 GE (OSU College of Engineering) ...........................................................................24 Knowledge Universe (Joseph A. Steinmetz, M.O.O.C., Oracle)..............................24 Larry Ellison, Oracle (Jeffrey Wadsworth, Alex R. Fischer, Joseph A. Steinmetz, M.O.O.C.) ........................................................................24 Michael Milken, securities fraud felon .....................................................................24 Martin Ford Foundation link creates likely OSU Trustee conflicts............................24 David L. Goldwyn is a controversial public figure whose stance on fracking, for example, is of obvious interest to the citizens of Ohio .............................................26 To what degree are Ohio State’s priorities being secretly driven by Jeffrey Wadsworth, Alex R. Fischer, Michael V. Drake, Battelle, The Ford Foundation, James P. Chandler and the U.S. Department of Energy?..........................................26 Hazem Chehabi Relationship .........................................................................................27 Close association with Syrian dictator and war criminal Bashar Al-Assad..............27 James V. Mazzo Relationship .........................................................................................28 Federal indictment on 13 counts of insider trading in a medical company ..............28 Abbott Labs relationship (OSU Medical Center) .....................................................29 Microsemi relationship (Battelle, Jeffrey Wadsworth, Alex R. Fischer) .................29 Drake’s Affirmative Certifications ....................................................................................30 REQUESTS FOR RELIEF .............................................................................................31 EXHIBITS A.

Notice to Parties (McKibben, M., Bruns, M.). (August 28, 2015). Sunshine Audit Complaint. David Yost, Ohio Auditor of State.

B.

Michael V. Drake, Form No. OEC-2013, Financial Disclosure Statement, submitted to the Ohio Ethics Commission, September 29, 2014.

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C.

Ohio Ethics Commission, Information Sheet: Advisory Opinion No. 2011-01, Disclosure of Investments, January 13, 2011.

D.

Unruh-Haxton v. Regents of Univ. of Cal., 76 Cal.Rptr.3d 146 (2008), 162 Cal.App.4th 343.

E.

Charles D. Martin biography. Paul Merage School of Business, University of California Irvine.

F.

David J. Goldwyn biography. (ca. August 2009). Hillary Clinton FOIA email released by U.S. Department of State, Aug. 31, 2015. U.S. Department of State, Case No. F-2014-20439, Doc. No. C05760586, Date: 06/30/2015, ¶4 (“affiliated with the Ford Foundation”).

G.

Congressional Record, Senate No. 15682. (July 13, 1999). Executive Session, Department of Energy, GPO (“David L. Goldwyn, of the District of Columbia to be an Assistant Secretary of Energy (International Affairs).”).

H.

David L. Goldwyn email to Hillary Clinton staff. (August 26, 2009). Hillary Clinton FOIA email released by U.S. Department of State, Aug. 31, 2015. U.S. Department of State, Case No. F-2014-20439, Doc. No. C05764560, Date: 07/31/2015, ¶4 (Self-identifies title as “David L. Goldwyn, Coordinator for International Energy Affairs, S/CIEA, Room 4880, U.S. Department of State, 2201 C St., NW, Washington, DC 20520, Phone: (202) 647-8543, Fax: (202) 647-7453”)

I.

David L. Goldwyn online biographies: The Brookings Institution, Goldwyn Global Strategies and personal LinkedIn profile. Accessed September 2, 2015.

J.

Annual Report. (2014). National Academy of Engineering (NAE) [Official publication]. Accessed September 2, 2015.

K.

Jeffrey Wadsworth biography. The Ohio State University Board of Trustees. Accessed September 2, 2015.

L.

Armstrong. (August 28, 2015). Update: How Hillary Clinton and David Goldwyn sold fracking. LittleSis. See also David L. Goldwyn Conflicts Map.

M.

Schaefer, S. (April 5, 2012). Interfaith groups urge removal of Dr. Hazem Chehabi. The Orange County Register; See also Nouh, Y. (Mar. 22, 1012). Hazem Chehabi Is Syrian President Bashar Al-Assad’s Man in OC. OC Weekly News.

N.

Primack, D. (Sep. 25, 2014). Feds indict venture capitalist [James Mazzo] for insider trading. Mazzo is accused of leaking info on a pending merger to his ballplayer pal, who then made a bundle. Fortune.

O.

U.S. v. James V. Mazzo et al, SA CR No. 12-269 (B)-AG (C.D. CA 2013).

P.

SEC. (Aug. 17, 2012). New Charges in Insider Trading Case Include Former CEO and Professional Baseball Player [Press release].

Q.

James V. Mazzo (Accessed Sep. 01, 2015). Executive Profile. Abbott Laboratories. Bloomberg; also Noe, T. (undated). Abbott Laboratories Contributes to Ross Heart Hospital. The Ohio State University, Cardiovascular Medicine.

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R.

Complaint, (V), Specific Allegations, (I) Michael V. Drake, Financial, Attachment, p. 4, Ohio Ethics Commission. TABLE OF AUTHORITIES OHIO CASES

Byrd v. Smith, 110 Ohio St.3d 24, 2006-Ohio-3455............................................................................18 City of Mentor v. Giordano, 9 Ohio St. 2d 140, 144 (1967) ............................................................................1,20,21 Ohio State University v. Kinkaid, 48 Ohio St. 3d 78, 80 (1990) ......................................................................................20 Phung v. Waste Management, Inc., 23 Ohio St. 3d 100 (1986) ............................................................................................2 Rockey v. 84 Lumber Co. (1993), 1993-Ohio-174, Ohio St.3d.........................................................................................8 Royce v. Smith, 68 Ohio St. 2d 106 (1981)...........................................................................................2 Roxane Laboratories, Inc. v. Tracy (1996), 75 Ohio St.3d 125, 127 ...............................................................................................17 State ex rel. Bush v. Spurlock, 42 Ohio St. 3d 77 (1989) ..............................................................................................1

State ex rel. Dann v. Taft, 109 Ohio St.3d 364, 2006-Ohio-1825 ................................................................ 5 State ex rel. Dann v. Taft, 110 Ohio St.3d 252, 2006-Ohio-3677 ..........................................................................5 State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs. (1992), 1992-Ohio-73, Ohio St.3d........................................................................................2,4 State ex rel. Wilke v. Hamilton Cty. Bd. of Commrs., 90 St.3d 55, 59, 734 N.E.2d 811 (2000) ..................................................................1,3

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CALIFORNIA CASES Unruh-Haxton v. Regents of Univ. of Cal., 76 Cal.Rptr.3d 146 (2008), 162 Cal.App.4th 343.....................................................23 FEDERAL CASES U.S. v. James V. Mazzo et al, SA CR No. 12-269 (B)-AG (C.D. CA 2013) ............................................................28 U.S. Department of State, Case No. F-2014-20439 ............................................................................................25 OHIO ETHICS COMMISSION Complaint, (V), Specific Allegations, (I) Michael V. Drake, Financial, Attachment, p. 4, Ohio Ethics Commission.................................................. Ex. R,4 Advisory Opinion No. 2011-01 ....................................................................................15,31 Advisory Opinion No. 75-036 ...........................................................................................21 Advisory Opinion No. 89-014 ...........................................................................................21 Advisory Opinion No. 93-004 ...........................................................................................21 Advisory Opinion No. 93-010 ...........................................................................................21 Ohio Ethics Commission .......................................................................... 1-4,9-13,15,18,21 OHIO AUDITOR OF STATE Notice to Parties (McKibben, M., Bruns, M.). (August 28, 2015). Sunshine Audit Complaint. David Yost, Ohio Auditor of State. ..............Ex. A,1-4,9,11-13 U.S. SECURITIES & EXCHANGE COMMISSION U.S. Securities & Exchange Commission. (Aug. 17, 2012). New Charges in Insider Trading Case Include Former CEO and Professional Baseball Player [Press release] ......28 U.S. Securities & Exchange Commission. Final Rule: Shareholder Reports and Quarterly Portfolio Disclosure of Registered Management Investment Companies, Securities and Exchange Commission, 17 CFR Parts 210, 239, 249, 270, and 274, [Release Nos. 33-8393; 34-49333; IC-26372; File No. S7-51-02], RIN 3235-AG64 ....6,22 UNIVERSITY OF CALIFORNIA IRVINE UC Irvine, Policies & Procedures, Sec. 700-09: Policies on Gifts, Gratuities and Conflicts of Interest ....................................................................................22

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OHIO STATUTES Ohio Code of Judicial Conduct Rule 2.11 (A)(3) ................................................................7 O.R.C. 102.02, Ohio Ethics Law ............................................................1,4,5,9,16,21,30,31 O.R.C. 124.34 .................................................................................................................1,30 O.R.C. 2731.02 ....................................................................................................................3 O.R.C. 2921.13(A)(&) .......................................................................................................30 O.R.C. 3.04 .....................................................................................................................1,30 Constitution of the State of Ohio .........................................................................................3 TABLES 1.

Michael V. Drake, Form No. OEC-2013, OEC, Financial Disclosure Statements, Sec. 1, Sources of Income ...................................15

2.

Michael V. Drake, Form No. OEC-2013, OEC, Financial Disclosure Statements, Sec. 8, Investments over $1,000 ..........................15

3.

Michael V. Drake, Form No. OEC-2013, OEC, Financial Disclosure Statements, Sec. 1(F), Sources of Income, State of California Form 700 attachment, Schedule D, Income – Gifts. .....................................................................................18 FIGURES

1.

Charles D. Martin. Photo: UC Irvine. .......................................................................23

2.

David L. Goldwyn. Photo: Goldwyn Global Strategies ...........................................25

3.

Hazem Chehabi, MD. Photo: Newport Diagnostic Center .......................................27

4.

James V. Mazzo, Photo: Fortune Magazine .............................................................28 OTHER

Annual Report. (2014). National Academy of Engineering (NAE) (The Ford Foundation donation, $25+ million; Battelle, $1-5 million).............................25 Confidential, Ohio Ethics Commission Allegation Form, Michael T. McKibben, submitted Oct. 20, 2015 ............................................................................................ Ex. R,4 Guide to Judiciary Policy, Ethics & Judicial Conduct, Vol. 2B, Ch. 2. U.S. Courts, United States Department of Justice ................................................................................................7

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NOW COMES the State of Ohio, on relation to one of its citizens, Michael T. McKibben (“Relator”), and hereby files a First Amended Complaint for Writ of Mandamus and Opposition to Respondent Michael V. Drake’s Motion to Dismiss Relator’s Complaint for Writ of Mandamus, and alleges as follows. At the outset, a reasonable person will ask why Michael V. Drake (“Drake”) is going to such great lengths to avoid disclosing his personal financial holdings to Ohio citizens. The valuable time and energy of many people, including this Court, Relator, Ohio Ethics Commission, Ohio Auditor of State and Attorney General could be spent more productively if Drake would simply comply with his public duty of disclosure. This Court explained in City of Mentor v. Giordano, 9 Ohio St. 2d 140, 144 (1967) that ethics statutes: "must be construed in light of the mischief they are designed to combat."

A.

RESPONDENT’S MOTION TO DISMISS SHOULD BE DENIED 1.

Relator shall first dispense with Respondent’s motion to dismiss based

erroneously on Rules 12(B)(1), 12(B)(2) and 12(B)(6) and Supreme Court Rule 12.04(A)(1). See State ex rel. Bush v. Spurlock, 42 Ohio St. 3d 77 (1989). 2.

Rule 12(B)(1) (lack of subject matter jurisdiction). This Court has

unquestionable subject matter jurisdiction over a writ of mandamus. See State ex rel. Wilke v. Hamilton Cty. Bd. of Commrs., sub. 3.

Rule 12(B)(2) (lack of jurisdiction over person). This Court, as Ohio’s

highest court, has unquestionable personal jurisdiction over Michael V. Drake as an Ohio citizen as well as an Ohio public employee. In fact, Drake himself confirmed this on Form OEC-2013 pledging fealty to O.R.C. 102.02(D), 2921.13(A)(7), 3.04 and 124.34. Further, Respondent’s argument that Drake is not subject to a writ of mandamus imputes novel exemptions into O.R.C. 102.02 and related statutes. The argument is that

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only the Ohio Ethics Commission, and not Drake, is subject to mandamus—even after Drake has refused to provide the information to the Commission. Common sense alone says that both the Commission and Drake are public entities subject to mandamus. If the legislature had intended to shield recalcitrant public officials from writs of mandamus, it would have said so. In any event, Relator now joins the Ohio Ethics Commission to this action to close this legal innovation. Exhibit B, Sec. 13. 4.

Rule 12(B)(6) (failure to state a claim upon which relief can be granted).

Respondent argues that Relator has not first exhausted lower remedies, which is in error, as verified by Relator’s affidavit and by the Notice to the Parties by Auditor of State, Dave Yost (Exhibit A). “[T]he court is obliged to assume as true the factual allegations of the complaint.” Phung v. Waste Management, Inc., 23 Ohio St. 3d 100 (1986) at 102. At best the motion is premature since no discovery has occurred. In any event, additional detail about Auditor Yost’s verifications is included herein. "In order for a court to dismiss a complaint for failure to state a claim upon which relief can be granted (Civ. R. 12[B][6]), it must appear beyond doubt from the complaint that the plaintiff can prove no set of facts entitling him to recover. (Conley v. Gibson, 355 U. S. 41, followed.)" Royce v. Smith, 68 Ohio St. 2d 106 (1981) at 108.

5.

Supreme Court Rule 12.04(A)(1) (insufficient complaint). Respondent

fails to differentiate this claim. The Complaint includes ample facts, affidavits, relief sought and memoranda of support. The First Amended Complaint includes additional information to further satisfy this Rule. 6.

Respondent has failed to prove beyond doubt that no set of facts entitle

Relator to relief. The motion attempts to have this Court summarily review the merits and prematurely dispose of the case as if the facts are clear and incontestable, which is impossible since the only facts presented so far support Relator. State ex rel. Hanson v. -2-

Guernsey Cty. Bd. of Commrs. (1992), 1992-Ohio-73, Ohio St.3d (Mandamus - Civ.R. 12(B)(6) motion to dismiss improperly used by court when court uses the motion to summarily review the merits of relator's claim and to prematurely dispose of the case.) 6.

For the reasons set forth herein, Relator respectfully requests that this

Court deny Respondent’s Motion to Dismiss. B.

FIRST AMENDED COMPLAINT FOR WRIT OF MANDAMUS 1.

Michael T. McKibben (“McKibben” or “Michael McKibben”) is a citizen

of the State of Ohio and a resident of Franklin County, Ohio. 2.

Michael V. Drake (“Drake” or “Michael Drake”), upon information and

belief, is a citizen of the State of Ohio and a resident of Franklin County, Ohio. 3.

The Ohio Ethics Commission (the “Commission”) was established as part

of the Ohio Ethics Law in 1973. The Commission has jurisdiction over Ohio's Executive Branch that is for all public officials and employees at the state and local levels of government, except legislators, judges, and their staffs. 4.

Relator’s Inspection of Records Request and Responses. This petition

follows verification by Dave Yost, Auditor of State, that all lower appeals have been exhausted and that this matter is ripe for intervention by this Court. No other Relator mandamus actions are pending in this matter. Exhibit A. Under Section 2(B)(1)(b), Article IV of the Ohio Constitution, the Supreme Court has original jurisdiction in mandamus actions * * *.” State ex rel. Wilke v. Hamilton Cty. Bd. of Commrs., 90 St.3d 55, 59, 734 N.E.2d 811 (2000); see also O.R.C. 2731.02 (“The writ of mandamus may be allowed by the supreme court, the court of appeals, or the court of common pleas * * *”).

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5.

On Oct. 20, 2014, Relator filed a Complaint with the Ohio Ethics

Commission regarding, among other things, the Commission’s failure to provide a complete financial disclosure by Michael V. Drake. See Exhibit R; Secs. 27, 28. 6.

On Jun. 26, 2015, Relator filed a Complaint with the Ohio Auditor of

State for a Sunshine Audit of the Ohio Ethics Commission regarding the Commission’s failure to provide Michael V. Drake’s complete financial disclosure. See Secs. 29,30. 7.

On Sep. 4, 2015, Relator filed a Complaint for Writ of Mandamus.

8.

On Sep. 30, 2015, Respondent filed a Motion to Dismiss.

9.

At present, the matter before this Court is Respondent’s Motion to

Dismiss which is not a pleading and does not constitute evidence. Under Civ.R. 7(A), only complaints, answers and replies constitute pleadings. Nonetheless, Relator is compelled to respond to Respondent’s factual assertions out of an abundance of caution to preserve claims. 10.

Relator hereby amends the original complaint as a matter of right. See

State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs. (1992), 1992-Ohio-73, Ohio St.3d (Relator is entitled under Civ.R. 15(A) to amend his complaint because a motion to dismiss is not a responsive pleading; also, Mandamus - Civ.R. 12(B)(6) motion to dismiss improperly used by court when court uses the motion to summarily review the merits of relator's claim and to prematurely dispose of the case.) 11.

The Ohio Ethics Commission is added as a Respondent.

12.

Ohio Revised Code 102.02 is binding upon all Ohio public officials and

the public bodies to whom they are responsible. However, Respondent argues that Drake, as a public entity, is not subject to writs of mandamus under O.R.C. 102.02 “the

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statutory scheme.” However, the 102.02 statute is silent on enforcement for a public official who is uncooperative with the Commission regarding withheld disclosure. Commission re. Michael V. Drake’s financial disclosure: “The Commission has no jurisdiction over a public entity’s refusal to release public records.” See Sec. 28.

13.

The notion that Drake may refuse to provide the omitted disclosures, then

be shielded from a writ of mandamus, cannot ever have been contemplated by the General Assembly as a permitted act. 14.

This Court concurs and has reinforced this principle numerous times: “It has long been the policy of this state, as reflected in the Public Records Act and as acknowledged by this court, that open government serves the public interest and our democratic system. We have repeatedly espoused this principle: “ ‘R.C. 149.43 [the Public Records Act] is construed liberally in favor of broad access, and any doubt is resolved in favor of disclosure of public records.’ ” (Brackets sic.) Gilbert v. Summit Cty. 104 Ohio St.3d 660, 2004-Ohio-7108, 821 N.E.2d 564, ¶ 7, quoting State ex rel. Cincinnati Enquirer v. Hamilton Cty. (1996), 75 Ohio St.3d 374, 376, 662 N.E.2d 334, cited in State ex rel. Dann v. Taft, 110 Ohio St.3d 252, 2006-Ohio-3677 at ¶21. (Emphasis added.)

In short, the Court cannot permit public officials to skirt their disclosure responsibilities with procedural smokescreens. 15.

At minimum, any privileges of nondisclosure asserted by Respondent

must be determined liberally in favor of disclosure. This principle supersedes the general procedural notions asserted by Respondent that Relator as an Ohio Citizen has no “clear legal right” to obtain any Drake disclosures. Such a notion turns the open government public disclosure principle on its head. Id. 16.

Respondent asserts that Drake is not required to disclose the asset

composition in his mutual funds, or fill out his Statement of Interest form. Even if both were true, which Relator contests, Respondent sidesteps the elephant in the room— the fact that Drake did not even disclose the names of his mutual funds.

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17.

Respondent contradicts his claim that mutual fund portfolio holdings do

not have to be disclosed by arguing that the stock and bond portfolio information from mutual funds “are publicly available on the Internet. Anyone who knows what mutual fund a person owns, also can know with a few clicks what companies that mutual fund has invested in through quarterly filings required by the Securities and Exchange Commission, which are available on the Commission’s website.” (Emphasis added.) Respondent agrees with Relator on this important point: that the stocks and bonds portfolio information of mutual funds is readily available and should be consulted when evaluating the stock holdings of a mutual fund held by an Ohio public official. Therefore, Relator is free to assess the contents of Drake’s mutual fund holdings for conflict of interest, once Drake has disclosed the holdings pursuant to this requested Court’s order. 18.

Respondent makes an inapposite argument about the alleged fluid nature

of the stock and bond portfolios in mutual funds, as if this excuses disclosure. This argument is akin to refusing to report income to the IRS because one’s bank account fluctuates. This argument is a red herring. The fact is, the names of the major stock and bond holdings of a mutual fund, sometimes valued into the billions of dollars per holding, do not change as often or as dramatically as Respondent implies. Even so, this is not the point. For ethics purposes, the public interest is more in knowing the names of the companies whose stocks and bonds are held, and is less concerned about how many are held. The de minimis argument is also a red herring since, using Respondent’s logic, Respondent would, for example, label a $100 million investment in the midst of a $5 billion fund de minimis. Few Main Street Ohio citizens would consider a $100 million

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stock holding de minimis no matter how many other stocks are held in the fund. Any decision in favor of that company benefits the holder. In any event, it is in the citizens’ interest to have this information and make the determination of conflict, rather than relying on the biased judgment of the holder. Respondent makes further inapposite arguments about judicial ethics rules which are irrelevant to Drake’s Ohio statutory duties. Most troubling is Respondent’s attempt to juxtapose a self-serving federal judicial Canon 3(C)(1)(c) that defines “financial interest” exclusively for federal judges and judicial employees, and in a manner that is wholly inconsistent with the ordinary definition as defined by a large body of law guiding the U.S. Internal Revenue Service (“IRS”), U.S. Securities & Exchange Commission (“SEC”), well-settled accounting standards and the Business Judgment Rule. Ambiguous or contradictory definitions in law must be resolved by the superior, controlling definition and common sense. See Rockey v. 84 Lumber Co. (1993), 1993Ohio-174, Ohio St.3d. (resolving conflicting rules and statutes). 19.

Drake is neither a federal official or judge, yet Respondent relies on the

Federal Guide to Judiciary Policy, Vol. 2B, Ch. 2, Advisory Opinion No. 106 (2009). While inapposite as a guide for assessing Drake’s Ohio duties, the Guide is also internally inconsistent. Advisory Opinion No. 20 in the same Guide states that “[o]wnership of even one share of stock by the judge’s spouse would require disqualification.” Relator asserts that the “even one share” principle in Advisory No. 20 speaks more clearly and unambiguously to the letter and spirit of open government and full disclosure, whereas the machinations surrounding concealment of the underlying stock

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and bond holdings violates foundational ethical principles of transparency and has become a license for concealing “old boy” investments behind mutual funds. 21.

Respondent incorrectly differentiates the Ohio Code of Judicial Conduct

Rule 2.11 (A)(3) by attempting to apply the self-serving federal redefinition of judicial financial interest to Ohio law. Judges beneficially enjoy the profits and losses from their mutual fund holdings and must pay taxes on those holdings to the IRS. Therefore, they have a very real financial interest in the portfolio holdings of a mutual fund. A mutual fund makes no money apart from the profits and losses of its underlying holdings. Therefore, exemption of mutual funds from disclosure for any reason is wholly inconsistent with sound ethical principles. 22.

In any event, Drake is not a judge subject to the Ohio definition of

“economic interest” cited by Respondent. Following Respondent’s faulty logic anyway, Ohio judges must nonetheless disclose holdings (even mutual funds) where “the interest could be substantially affected by the outcome of a proceeding before a judge.” Relator differentiates the strong possibility of such circumstances below. In any event, unless the holdings are disclosed, the public cannot evaluate whether or not the judge could be substantially benefitted—further dictating openness and disclosure rather than concealment of mutual fund stocks and bonds behind a Wizard of Oz procedural curtain. See Rockey, supra. 23.

Mutual funds have become a way to hide white-collar bribery by

deep-pocketed companies wanting Ohio contracts and favors. The bottom line is that mutual fund holdings have become the new bribery playground for deep-pocket companies who seek contracts and favors from Ohio public officials. Surely the mutual

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fund disclosure exemptions were never intended by the Ohio legislature for such nefarious purposes. The public interest is in knowing with certainty (instead of being forced to read the tea leaves and guess) whether or not Drake participates in these fraudulent schemes. Since Respondent agrees that the mutual fund portfolio information is readily available from the SEC, then Respondent agrees with Relator that the portfolio assets inside his mutual funds can and should be evaluated. 24.

Drake wastes the time and expense of many in his failure to disclose.

Respondent’s “no legal right” argument contradicts the right of Ohio citizens for full and liberal conflict of interest disclosures from their public officials. The fact that Drake has refused the Ohio Ethics Commission’s request to provide the disclosure information removes the protection privilege that he might have otherwise enjoyed. Indeed, Drake has forced Relator to consume much time and expense to obtain what Drake should have provided automatically. Drake’s nondisclosure also wastes considerable State resources in chasing Drake around and then having to defend his misconduct. 25.

Respondent’s assertion that Drake is not accountable to the plain words

of the O.R.C. 102.02 statute as a public official is remarkable. This proposition is soundly contradicted by both the Ohio Ethics Commission and the Ohio Auditor as differentiated below. 26.

Respondent argues that Drake is not required to complete the Statement

of Interest Form—even after Drake obliquely disclosed some of his conflicting relationships in an income attachment. Respondent spends an entire page arguing that Drake is not involved with or in a school district, educational service center and that he

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is neither a superintendent, treasurer nor business manager. Drake is all of these, in spades. Indeed, Ohio State employs personnel as well as maintains relationships and partnerships with hundreds of educational bodies at all levels within the State of Ohio. The clear intent of the Ohio Assembly is to have educators with fiduciary responsibilities disclose their conflicts of interest and not parse words in an evident effort to skirt the duty of disclosure. Respondent’s hair-splitting is troubling. 27.

On Oct. 20, 2014, Relator filed a confidential complaint with the Ohio

Ethics Commission (“OEC Complaint”) that stated in pertinent part: “Michael V. Drake knowingly failed to disclose his financial holdings in his 2014 disclosure; disclosing his third party broker instead. Never mind that the broker was his bank, the fact is his ambiguous disclosures of “Bank of the West Mutual Fund/Investment Accounts” and “Bank of the West Investment / Mutual Funds” are fraudulent since no such mutual fund exists, and further investigation has discovered that this group is merely a broker of over 100 different mutual funds. A reasonable person can only assume it was willful since he is a director of Bank of the West which he disclosed as his broker. He was not asked for the identity of his broker, yet he volunteered that irrelevant information in lieu of the material information he was required to disclose. Therefore, Mr. Drake misrepresented material information upon which the citizens had a right while assessing his suitability to be president of The Ohio State University.” (V). Specific Allegations, (I) Michael V. Drake, Financial, Ohio Ethics Commission Complaint, Attachment, p. 4. Exhibit R.

28.

On Jun. 8, 2015, after a number of replies to requests for status updates

about when a fully responsive Drake financial disclosure would be provided, the Ohio Ethics Commission responded: From: Bruns, Molly [mailto:[email protected]] Sent: Monday, 8 June, 2015 11:40 AM To: [email protected] Subject: RE: Status of Michael V. Drake ethics inquiry? Good morning Mr. McKibben -

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The Commission has no public records in response to your request. The Commission has no jurisdiction over a public entity’s refusal to release public records. Public records disputes can be directed to: Attorney General of Ohio (614) 466-4320 www.ag.state.oh.us or Ohio Auditor of State (800) 282-0370 www.auditor.state.oh.us If you have further questions, please feel free to call me. Molly Molly J. Bruns [email protected] Investigative Attorney Ohio Ethics Commission William Green Building 30 West Spring Street, L3 Columbus, OH 43215-2256 614.466.7090 – Phone 614.466.8368 – Fax www.ethics.ohio.gov

29.

On Jun. 26, 2015, Relator filed a Sunshine Audit Complaint against the

Ohio Ethics Commission with the Ohio Auditor of State, who responded: From: Melissa J. Crocker [mailto:[email protected]] Sent: Friday, 26 June, 2015 2:28 PM To: [email protected] Subject: RE: Auditor of State Request Dear Mr. McKibben: Thank you for the clarification; it was very helpful. The Sunshine Audit will be filed against OEC, as they are the entity you requested records from. I will begin the process. Thank you, Melissa Crocker

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30.

On Jul. 21, 2015, in response to a status request, the Ohio Auditor of

State responded: Dear Mr. McKibben: The Sunshine Audit program cannot compel a state entity to turn over public records. However, we are reviewing your Sunshine Audit complaint and will inform you of our finding once we have finished our review. Thank you, Melissa Crocker

31.

On Aug. 28, 2015, the Ohio Auditor of State provided its opinion. Exhibit A.

32.

The OEC Complaint and the Sunshine Audit Complaint prove that

Respondent’s primary assertion in the Motion to Dismiss is incorrect—that Relator has not exhausted lower remedies prior to filing the Complaint. Relator has indeed exhausted all lower remedies, as shown herein. 33.

The Ohio Ethics Commission states that they have “no jurisdiction over a

public entity’s refusal to release public records.” 34.

The Ohio Auditor of State states that he “cannot compel a state entity to

turn over public records.” The Auditor also stated “An audit released by this office has the presumption of validity when introduced as evidence.”

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35.

In summary, Relator is left with no recourse other than to petition for a

writ of mandamus from this Court since: (a) Michael V. Drake has not complied with Ohio Ethics laws, (b) the Ohio Ethics Commission says it has no jurisdiction over Drake’s refusal to provide the information, and (c) the Ohio Auditor of State states that it cannot compel the Ohio Ethics Commission to turn over the records (which it says Drake refused to give them). Relator has a right to rely on these representations. 36.

Relator’s Catch-22 is evident and can only be remedied by this Court

since it is no longer apparent which public servant (Drake and/or the Ohio Ethics Commission) is at fault. 37.

Therefore, Drake’s assertion that Relator has not exhausted all prior

appeal opportunities is incorrect. 38.

On September 29, 2014, Michael Drake filed a Form No. OEC-2013,

Ohio Ethics Commission, FINANCIAL DISCLOSURE STATEMENT with the Ohio Ethics Commission (“Financial Disclosure”). Exhibit B. 39.

Drake pledged that the disclosure was complete, truthful and correct under

threat of penalties including fines, imprisonment, removal from public office, or dismissal from public service for knowingly false statements. Financial Disclosure, Sec. 13. 40.

However, Michael V. Drake knew or should have known

that his Financial Disclosure was improper. His woefully incomplete disclosure: (a) falsely certified that he provided his correct mailing address, when in fact, no address was provided—Drake’s argument that the address was redacted is pure speculation since no redaction notices appear; (b) omitted material disclosure of investments and income, with the exception of $960.00 in meals and one Wells Fargo account containing “less than $50,” thus evidently mocking Ohio’s disclosure requirements (Tables 1 & 3);

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(c) omitted disclosure of his fiduciary interests, including contingent liabilities in, with and to: i. concealment from more than 300 patient-victims of a University of California Irvine (“UCI”) fertility clinic scheme to harvest eggs and fertilized embryos, sell some as human tissue for research, and implant others in third parties, possibly resulting in live births—Drake was silent in response to this evident contingent liability; ii. Hazem Chehabi, a UCI trustee with close ties to Syrian dictator and mass murderer, Bashar Al-Assad, thus bringing into question Drake’s sources and uses of funds, his fund raising ethics, and his association with a notoriously known war criminal; iii. James Mazzo, a UCI trustee who was indicted on 13 counts of insider trading in a medical company scheme where he tipped off a friend to a pending securities transaction where the friend “made a bundle,” just four days before Drake filed his Financial Disclosure, thus bringing into question Drake’s choice of donors and recommendations; and iv. Charles Martin, a California venture capitalist, who claims: 1. to have graduated from Ohio State with a degree in engineering physics and “five majors (physics, mathematics, chemistry, electrical engineering and business),” thus stretching credulity; 2. relationship to convicted securities fraud felon, Michael Milken, thus bringing into question the propriety of the company Drake is willing to keep at the expense of his integrity and the University’s honor; 3. relationship to approximately 150 companies—including vendors and research collaborators to Ohio State and Ohio State trustees and executives, including: a. Jeffrey Wadsworth (Oracle, Larry Ellison); b. Alex R. Fischer (Oracle, Larry Ellison); c. John C. Lane (Eastman Kodak); d. Joseph A. Steinmetz & M.O.O.C. (Massive Open Online Course)(Oracle, Larry Ellison, Knowledge Universe, the University Innovation Alliance); e. OSU College of Engineering (General Electric) f. OSU Fisher School of Business (Ford, Vistage); and g. Others? Are there more devils in the details of Charles Martin’s hundreds of other undisclosed relationships? The Ohio public has

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an interest in knowing since Drake has surfaced his name in an ambiguous food income attachment. 41.

At the time of this financial activity, upon information and belief, Drake

lived and worked in the State of California as chancellor of the University of California Irvine. Therefore, he submitted this disclosure as a private person, prior to his appointment at The Ohio State University. 42.

Under Section 1, Sources of Income, Michael Drake disclosed:

No.

Source of Income

Service Provided

A.

Bank of the West

B.

Bank of the West IRA

Savings and checking accounts-interest Retirement savings

D.

Bank of the West Investment / Mutual Funds

Retirement savings

E.

Wells Fargo

Savings and checking accounts-interest

F.

University of California-Irvine

Employment-Chancellor

Amount

Less than $50

See attached State of California Form 700 Table 1: Michael Drake filed a Form No. OEC-2013, Ohio Ethics Commission, FINANCIAL DISCLOSURE STATEMENT, Sec. 1, Sources of Income.

43. No. A. B.

Under Section 8, Investments over $1,000, Michael Drake disclosed:

Corporation, Trust, Business Trust, Partnership, or Association Bank of the West Investment / Mutual Funds Bank of the West IRA

Nature of Investment Retirement Retirement

Table 2: Michael Drake filed a Form No. OEC-2013, Ohio Ethics Commission, FINANCIAL DISCLOSURE STATEMENT, Sec. 8, Investments over $1,000.

44.

The Ohio Ethics Commission, Advisory No. 2011-01 (“OEC-2011-01” or

“Advisory”), states that Ohio Ethics Law exists: “(1) To remind public officials and employees of their holdings and assist them in avoiding conflicts of interest related to those holdings; and (2) To disclose information about the financial interests of public officials and employees to the Commission and the public in order to assist the public and

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the Commission in monitoring conflicts of interest.” (Emphasis added.) Exhibit C.

45.

Michael Drake’s Financial Disclosure fails on its face to assist the public

and the Commission in monitoring Drake’s conflicts of interest. 46.

Ohio Revised Code 102.02(A)(3) requires all filers to disclose business

entities in which they have investments. Drake disclosed only “Bank of the West IRA, Investments and Mutual Funds.” Merely disclosing one’s broker or account manager is knowingly insufficient disclosure. 47.

The Advisory, p. 4, ¶1 states clearly and unambiguously: “A financial disclosure filer is required to disclose the qualifying business that manages the investment account and the individual stocks, bonds, mutual funds, and other investments that are held in his or her brokerage account. This is true whether the filer personally chooses or directs the investments within the account or has empowered another person to direct investments on the filer’s behalf . . . a filer is required to disclose investments he or she makes and those made by any other person for the filer’s use and benefit, such as investments made by the manager of a trust for the trust beneficiary.” (All emphases in original.)

48.

No investment disclosure. Remarkably, the Financial Disclosure

contains no disclosure of investment holdings―which is a primary purpose of the Ohio Ethics financial disclosure law. O.R.C. 102.02(A)(2)(b)(i) clearly states: “(2) The disclosure statement shall include all of the following: ... (i) . . . identification of every source of income” (Emphasis added.)

The clear language of the statute does not exempt the portfolio holdings of mutual funds. The fact that such exemptions have crept into common practice does not override the public’s interest in full disclosure, as affirmed by this Court multiple times.

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This Court stated in Roxane Laboratories, Inc. v. Tracy (1996), 75 Ohio St.3d 125, 127, p. 3, ¶3: “The principles of statutory construction require courts to first look at the specific language contained in the statute, and, if the language is unambiguous, to then apply the clear meaning of the words used.”

The Ohio Ethics statute never mentions mutual funds and does not exempt filers from disclosing the portfolio holdings within the funds. Therefore, mutual fund exemptions from disclosure are improper on their face. The statute requires disclosure of “every source of income.” A mutual fund produces no work or wealth. Indeed, its sources of income are the underlying stocks and bonds held. Therefore, according to the clear and unambiguous words of the Ohio statute, the sources of income in a mutual fund —the portfolio stocks and bonds—are the components of a mutual fund that should be disclosed, not merely the fund’s name. A mutual fund is merely a middleman for the underlying sources of income. The Ohio legislature did not exempt mutual funds from disclosure of their portfolio holdings. If the legislature had intended to exempt mutual funds, it would have said so in the statute. The fact is, mutual fund portfolios are generally large companies, in whom the mutual fund is invested, sometimes substantially, and who may be seeking contracts with the State of Ohio that can be beneficial to the fund’s value. Therefore, it is in the public’s interest not to conceal portfolio holdings of mutual funds from public scrutiny. Therefore, Michael Drake should be compelled to disclose the stock and bond portfolio holdings of his undisclosed mutual funds, as further differentiated below. 49.

No mailing address. The Financial Disclosure contains no mailing

address. Therefore, this certification is false on its face: -17-

“I swear and affirm that . . . the address listed on page 1 is a correct mailing address.” Financial Disclosure, Sec. 13, bullet 1.

Respondent argues that the address was redacted, however this is pure speculation since Drake’s disclosure contains no such redaction notices or markings. 50.

Ambiguous food and beverage disclosure. The Financial Disclosure on

Sec. 10, Food and Beverage is ambiguous. Therefore, since both assertions cannot be true, one or the other is false on its face: Either this is true: “I have no sources of meals, food, or beverage that I am required to list.” Financial Disclosure, Sec. 10. Or, this is true: Financial Disclosure, SCHEDULE D attachment. See Table 3 below. Name of Source

Date

Value

Description of Gift(s)

John Croul Charles Martin Charles Martin Charles Martin Geoffrey Stack Hazem Chehabi Hazem Chehabi James Mazzo James Swinden

02/21/13 02/19/13 07/11/13 07/23/13 08/14/13 02/21/13 12/12/13 04/02/13 03/22/13

$120.00 $100.00 $200.00 $100.00 $100.00 $40.00 $40.00 $160.00 $100.00

Business Dinner (incl. Mrs. Drake) Business Dinner Business Dinner (incl.Mrs.Drake) [sic] Business Dinner Business Dinner (incl.Mrs.Drake) [sic] Business Lunch Business Lunch Dinner(incl.Mrs.Drake) [sic] Dinner(incl.Mrs.Drake) [sic]

Table 3: Michael Drake filed a Form No. OEC-2013, Ohio Ethics Commission, FINANCIAL DISCLOSURE STATEMENT, Sec. 1(F), Sources of Income, State of California Form 700 attachment, Schedule D, Income – Gifts.

51.

These contradictory assertions regarding food and beverage render public

assessment impossible, and as a result, they prevent any benefit of the doubt that might otherwise be applied in Drake’s favor. See Byrd v. Smith, 110 Ohio St.3d 24, 2006Ohio-3455 (“A movant’s contradictory affidavit will prevent summary judgment in that party’s favor.”).

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52.

All beneficial interests should be disclosed. The Advisory makes an

ambiguous distinction between a mutual fund and an investment account. On the one hand, the Advisory requires disclosure of the stocks and bonds in an investment account. But, on the other hand, the Advisory does not require disclosure of underlying stocks and bonds in a mutual fund. This mutual fund Advisory waiver is a distinction without a difference since both are taxable beneficial interests in the underlying stocks and bonds that comprise the holding. Indeed, a mutual fund creates no income separate and apart from the stocks and bonds in its portfolio for which the mutual fund holder enjoys a pro rata percentage. Put another way, any decision made by Michael Drake that benefits an underlying portfolio holding in his mutual funds, benefits him personally. Therefore, the public’s interest is best served by disclosure, and can only be harmed by lack of disclosure. For example, whether or not Michael Drake’s name is on the Oracle stock certificate held in his mutual fund, if his mutual fund is the beneficiary of Oracle gains or losses, then so is Michael Drake, in direct proportion to his holding. Without disclosure of the Oracle financial interest, Michael Drake’s prospective decisions favorable to Oracle will be hidden from public review. Disclosure of the mere name of a mutual fund does not serve the public’s interest in assessing conflicts of interest. Put another way, the mutual fund exemption in the Advisory discloses only the outside wrapper rather than its substantive contents. Many sins can be covered by a pretty wrapper. The public’s interest is in knowing the actual values that accrue to the holder. Indeed, both angels and devils can be hidden in the portfolio of a mutual fund. This

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becomes all the more important given Drake’s ambiguously disclosed income relationships to Charles Martin, Hazem Chehabi, James Mazzo and the extent to which those companies are portfolio stocks in mutual funds held by Drake. For example, Martin claims relationship to Bank of America (“BofA”), a major contributor of stocks and bonds held in many mutual funds. The public has a clear interest in assessing Drake’s potential conflicts of interest in prospective dealings with BofA. Logic says that if Drake is colluding with Bank of America, BofA would simply arrange for XYZ Mutual Fund to acquire BofA stock, then Drake would invest in XYZ. Thus, Drake’s secret BofA relationship is conveniently concealed by the XYZ Mutual Fund. Since those Bank of America holdings inside mutual funds will never be disclosed in the current mutual fund waiver fever, the American public is being hoodwinked by mutual funds who hide their crony relationship behind the mutual fund exemption. James Mazzo is under indictment on 13 counts of insider trading by the Justice Department. The public has an interest in exploring this Drake relationship. Ironically, in Ohio State University v. Kinkaid, 48 Ohio St. 3d 78, 80 (1990), this Court stated: “[T]he object of interpreting a statute is to ascertain and give effect to the intent of the General Assembly.”

This Court explained in City of Mentor v. Giordano, 9 Ohio St. 2d 140, 144 (1967) that ethics statutes: "must be construed in light of the mischief they are designed to combat."

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53.

Public persons must err on the side of disclosure, not concealment.

O.R.C. 102.02, the Ohio Ethics Law, establishes a standard of conduct for all public officers and employees within the State and prohibits them from using their official positions to benefit their private interests or the interests of others with whom they hold certain business or personal relationships. See Advisory Opinion No. 93-010 (citing Ohio Ethics Commission Advisory Opinion. No. 93-004 and Advisory Opinion No. 89-014). Normally, an ambiguous provision in Ohio Ethics Law will be construed liberally in favor of the accused. Advisory Opinion No. 75-036 (“In construing Section 102.02 (A) of the Revised Code strictly against the state and liberally in favor of the accused.”) However, the statute is clear: “every source of income.” Nowhere does the statute say every source of income, unless it’s in a mutual fund, in which case it can be concealed. As a joined party to the First Amended Complaint, the Ohio Ethics Commission is free to resolve the mutual fund guideline ambiguities identified herein. 54. Drake’s omissions and false statements shifted the privilege of construing the Advisory’s mutual fund ambiguity in favor of Ohio citizens. Drake has waived this presumption by making multiple false and ambiguous statements and material nondisclosures. The public interest must now determine if mischief is afoot. As a result, the Court is free to follow its City of Mentor decision that this issue “must be construed in light of the mischief they are designed to combat." Advisory Opinion No. 93-010, p. 3, ¶1.

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Therefore, Drake should be compelled to disclose the underlying stock portfolio holdings of each mutual fund which are readily available, by date, at the U.S. Securities & Exchange Commission site at http://www.sec.gov/edgar/searchedgar/companysearch.html Drake receives reports of his portfolio stock and bond holdings in his mutual funds four times a year, by statute. Therefore, the reporting of this portfolio is not burdensome in the least.1 55.

The public must impute mischief given Drake’s withheld disclosures.

By Drake’s failure to disclose even one investment, the public must reasonably impute mischief and be given the benefit of the doubt in analyzing the stocks and bonds held within Drake’s mutual funds. 56.

Drake disclosed that he received over $100,000 as a director of Bank of

the West. As a highly paid bank director, the public can only presume that he is a sophisticated investor, experienced company director, and savvy public employee who knows the ethical requirements of proper financial disclosure. 57.

While Drake was chancellor of the University of California, he enforced

a robust set of policies and procedures on conflicts of interest. See UC Irvine, Policies & Procedures, Sec. 700-09: Policies on Gifts, Gratuities and Conflicts of Interest, http://www.policies.uci.edu/policies/pols/700-09.html 58.

A particularly troubling professional ethics controversy swirled at UCI

while Drake was chancellor. This matter at least shows that Drake is aware of the impact of professional ethics nondisclosures.

Final Rule: Shareholder Reports and Quarterly Portfolio Disclosure of Registered Management Investment Companies, Securities and Exchange Commission, 17 CFR Parts 210, 239, 249, 270, and 274, [Release Nos. 33-8393; 34-49333; IC-26372; File No. S7-51-02], RIN 3235-AG64 http://www.sec.gov/rules/final/33-8393.htm#IB. 1

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UCI Medical Center had victimized over 300 fertility clinic patients by failing to disclose financial conflicts of interest. UCI settled with three UCI employee whistleblowers for $1 million who were gagged from contacting the victims of the scheme to harvest eggs and “pre-embryos” (fertilized and frozen) after which some were sold as “genetic material for research,” and others were implanted into different women without the patient’s consent, possibly resulting in live births. UCI (including Drake) never contacted the victims individually, contrary to their many public statements that they had notified the victims. See Unruh-Haxton v. Regents of Univ. of Cal., 76 Cal.Rptr.3d 146 (2008), 162 Cal.App.4th 343 at 153, 166. Exhibit D. Therefore, the Ohio public has an interest in assessing Drake’s contingent liability in this fertility clinic scandal, since accusations of fraud do not shield him from liability. These kinds of controversies also speak to leadership and moral character. The public has an interest in such assessments. 59.

Charles D. Martin Relationship.

Drake failed to adequately disclose his relationship to “Charles Martin” (“Martin”) who is mentioned in a Schedule D attachment, but not in his ambiguous Food & Beverage disclosure. Sec. 10. Martin’s UCI biography states that “He graduated from Ohio State University in 1960 with a degree in Engineering Physics and five majors (physics, mathematics, chemistry,

Figure 1: Charles D. Martin

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Photo: UC Irvine.

electrical engineering and business). In 2007, he was awarded the alumni-of-the-year, Lamme Medal” at Ohio State. Exhibit E. Martin’s biography describes relationships to the following individuals and organizations (currently noteworthy ones in bold underline): a. b. c. d. e. f. g. h. i. j. k. l. m. n. o. p. q. r. s. t. u. v. w. x. y. z. aa. bb. cc.

“Over 80 CEOs of California companies” AT&T Bank of America Chapman University ClearLight Partners Common Fund Dartmouth Eastman Kodak Enterprise Partners Ford Foundation General Motors George Argyros Harvard Knowledge Universe Larry Ellison “46 boards of directors of public and private companies” Merage School of Business, UC Irvine Michael Milken Mont Pelerin Capital Ohio State University Orange County Museum of Art Princeton TEC International UC Irvine University of California Regents Vedax Sciences Corporation Vistage Westar Capital Yale

Given the mischievous manner in which Charles Martin’s name appears in the Financial Disclosure, the public interest requires that Drake fully disclose his past and current financial and business dealings with Charles Martin, especially considering his ties to: a. Ohio State; b. Ohio State vendors and investment executives;

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c. “Over 80 CEOs of California companies;” d. “46 boards of directors of public and private companies;” e. well-known felon, Michael Milken; f.

Knowledge Universe, Larry Ellison, Oracle connections to OSU Provost Joseph A. Steinmetz’s Massive Open Online Course (M.O.O.C.) initiative that he is currently pressing, including the “outsourcing” (move off campus) of Ohio State’s digital infrastructure through the Office of the Chief Information Officer. https://ocio.osu.edu/; and

g. other interests that may or may not be operating in Ohio State’s best interests.

60.

Martin’s Ford Foundation link creates likely OSU Trustee conflicts

Martin highlights his association with The Ford Foundation, but Drake discloses no association. However, The Ford Foundation is a $25+ million donor to the National Academy of Engineering (“NAE”) where Battelle Memorial Institute is a donor. Battelle CEO Jeffrey Wadsworth is also an NAE member. Exhibit J; Exhibit K.

Figure 2: David L. Goldwyn. Ford Foundation affiliations are not disclosed in public biographies, but was exposed in U.S. State Department release of Hillary Clinton emails on August 31, 2015. Goldwyn is therefore associated with Bill Clinton’s chief Department of Energy counsel, Professor James P. Chandler. Photo: Goldwyn Global Strategies.

On August 31, 2015 at 9 p.m., the U.S. State Department released the latest batch of previously stonewalled Hillary Clinton emails. Among the emails is a Goldwyn biography describing his affiliation with The Ford Foundation. Goldwyn became Hillary’s

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Coordinator for International Energy Affairs. Exhibit F. In 1999, he had worked as Assistant Secretary of Energy under Bill Clinton. Exhibit G; Exhibit H. However, Goldwyn’s public biographies never mention his Ford Foundation connection (National Academy of Engineering). Exhibit I. That affiliation ties together Martin, Drake, Wadsworth and Battelle. The public interest is best served by full disclosure of these interconnections. 61.

David L. Goldwyn is a controversial public figure whose stance on

fracking, for example, is of obvious interest to the citizens of Ohio on all sides of this public debate. See Armstrong. (August 28, 2015)/ Updated: How Hillary Clinton and David Goldwyn sold fracking. LittleSis. Exhibit L. Battelle, Wadsworth and Fischer have obvious U.S. Department of Energy dogs in this hunt. Michael Drake’s nondisclosure of his Ford Foundation’s associations to Battelle, Wadsworth and Fischer raises serious concerns of propriety. Indeed, had the State Department not released Hillary’s FOIA emails, these secret associations would have remained concealed from public scrutiny. A reasonable Ohio citizen will certainly ask: “To what degree are Ohio State’s priorities being secretly driven by Jeffrey Wadsworth, Alex R. Fischer, Michael V. Drake, Battelle, The Ford Foundation, James P. Chandler and the U.S. Department of Energy?”

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62.

Hazem Chehabi Relationship. Drake failed

to properly disclose his relationship to “Hazem Chehabi” (“Chehabi”) who is mentioned in a Schedule D attachment, but not in his ambiguous Food & Beverage disclosure. Sec. 10. A California weekly describes Chehabi’s intimate relationship with Syrian dictator and war criminal, President Bashar Al-Assad. Drake supported Chehabi in the face of a campus campaign to have him removed, including an interfaith group of Orange County, California Muslims,

Figure 3: Hazem Chehabi, MD Photo: Newport Diagnostic Center

Christian and Jewish organizations. According to the Orange County Register, Chehabi donated $1 million to the University of California Irvine while Drake was chancellor. Al-Assad is engaged in a civil war with his citizenry where over 300,000 citizens have been killed, and millions have fled their homes and are now refugees spread across the planet. Drake’s mischievous disclosure of Chehabi, in a food income form attachment, dictates that he come clean about his relationship to Chehabi and Chehabi’s Middle East interests. Only then can the public assess whether the Drake-Chehabi relationship is a conflict of interest. Exhibit M. A reasonable person can only conclude that for Drake to so inauspiciously introduce his relationship to such a controversial public figure as Chehabi―in an ambiguous Food and Beverage form—raises serious questions of Drake’s propriety. The public has an interest in exploring this potential conflict of interest.

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63.

James V. Mazzo Relationship. Drake failed to properly disclose his

relationship to “James Mazzo” (“Mazzo”) who is mentioned in a Schedule D attachment, but not in his ambiguous Food & Beverage disclosure. Sec. 10. On Sep. 24, 2014, just four days before Michael Drake filed the Financial Disclosure, his colleague, James Mazzo, was indicted on 13 counts of insider trading in a medical company scheme.

Figure 4: James V. Mazzo. Indicted on 13 counts of insider trading in a medical company Photo: Fortune.

See Primack, D. (Sep. 25, 2014). Feds indict venture capitalist [James Mazzo] for insider trading. Mazzo is accused of leaking info on a pending merger to his ballplayer pal, who then made a bundle. Fortune. Exhibit N; See U.S. v. James V. Mazzo et al, SA CR No. 12-269 (B)-AG (C.D. CA 2013). Exhibit O; and See SEC. (Aug. 17, 2012). New Charges in Insider Trading Case Include Former CEO and Professional Baseball Player [Press release]. Exhibit P.

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Mazzo’s executive biography at Bloomberg describes relationships with the following organizations, Exhibit Q: a. b. c. d. e. f. g.

Versant Ventures, Inc.; Neurotech Pharmaceuticals, Inc.; California State University; Abbott Laboratories; Allergan Inc.; Beckman Coulter, Inc.; Microsemi Corporation;

h. Abbott Medical Optics Inc.; i. Advanced Medical Technology Association; j. Aerie Pharmaceuticals, Inc.; k. OCTANe; l. OCTANe LLC; and m. University of California Irvine.

At least two of Mazzo’s clients, Abbott Laboratories and Abbott Medical Optics Inc. contribute to OSU’s Ross Heart Hospital. Another of Mazzo’s clients, Microsemi Corporation, is believed to have relationships with Battelle Memorial Institute where OSU Trustee President Jeffrey Wadsworth is CEO and Trustee Alex R. Fischer was formerly employed. 64.

Given the mischievous manner in which James Mazzo’s name appears in

the Financial Disclosure, the public interest requires that Drake now fully disclose his past and current financial and business dealings with James Mazzo, especially considering his: a. indictment on 13 counts of insider trading and securities fraud involving a medical company; b. ties to Ohio State vendors; and c. potential plans to arrange OSU Medical Center contracts for Mazzo’s companies with Michael Drake’s assistance. 65.

After considering the scope of Michael Drake’s nondisclosures, a

reasonable person will ask how the OSU Trustees missed this information in the process of offering Drake a $1.2 million per year salary. On August 28, 2015, the OSU Trustees began deliberations to increase Drake’s salary still further. The public has an interest in evaluating whether these are wise choices.2

Edwards, M. (August 28, 2015). Trustees to set rules for Ohio State salaries. The Columbus Dispatch. http://www.dispatch.com/content/stories/local/2015/08/28/trustees-to-set-rules-for-osu-salaries.html; See 2

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656.

Michael Drake stated: “I swear or affirm that this statement and any

additional attachments have been prepared or carefully reviewed by me, and constitute my complete, truthful, and correct disclosure of all required information, and that the address listed on page 1 is a correct mailing address.” Sec. 13, bullet 1. Given Drake’s woeful lack of disclosure, this is a false statement. 67.

Drake stated “I acknowledge and understand that, among other potential

violations and penalties, knowingly filing a false statement is a criminal misdemeanor of the first degree, in violation of Sections 102.02(D) and 2921.13(A)(&) of the Revised Code, punishable by a fine of not more than $1,000, imprisonment of not more than six months, or both.” Sec. 13, bullet 2. 68.

Drake stated: “I acknowledge and understand that filing a false statement

may be grounds for removal from public office or dismissal from public employment pursuant to Sections 3.04 and 124.34 of the Revised Code.” Sec. 13, bullet 3. 69.

Drake agreed that “Any person who fails to file a complete statement by

the appropriate filing deadline will be assessed a late filing fee and may be subject to criminal penalty.” Financial Disclosure, Sec. 13, callout. 70.

Ohio Revised Code 102.02 states that: (C) No person shall knowingly fail to file, on or before the applicable filing deadline established under this section, a statement that is required by this section. (D) No person shall knowingly file a false statement that is required to be filed under this section.

also Knox, T. (Aug. 28, 2015). Jon Waters drama at the Ohio State Trustees meeting. Columbus Business First. (“The meeting . . . featured more praise for President Michael Drake, the target of much of the ire from Waters’ supporters.”). http://www.bizjournals.com/columbus/blog/2015/08/jon-waters-drama-at-theohio-state-trustees.html.

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The evidence is unmistakable. Michael Drake’s Financial Disclosure is not just incomplete, it is flippant in its noncompliance to Ohio Ethics Law. As an experienced public employee, former chancellor of a major university, bank director and medical ethicist, he has no excuse. 71.

Michael V. Drake knew or should have known that his financial disclosure was improper.

The evidence on its face shows that Michael Drake has willfully and knowingly violated Ohio Revised Code 102.02 by making false statements and failing to disclose material information in violation of Ohio Ethics Law. REQUEST FOR RELIEF WHEREFORE, Relator respectfully requests that the Court deny Respondent’s Motion to Dismiss. WHEREFORE, Relator respectfully requests that the Court resolve the ambiguity between the O.R.C. 102.02 statute requiring disclosure of “all sources of income” and the OEC-2011-01 Advisory Opinion that exempts a filer from disclosing the stock and bond portfolio holdings within their mutual funds. WHEREFORE, Relator requests a Writ of Mandamus ordering Michael V. Drake to: (1) make available fully compliant versions of Form Nos. OEC-2013 and OEC-2014 for inspection and copying without further delay; (2) make available the financial disclosure information that Drake submitted to the Ohio State Trustees during his interview process; and (3) include in each mutual fund financial disclosure the most recent S.E.C. Form N-CSR3 that was released prior to the end of the subject reporting year that provides the actual stocks and bonds held by the fund. 3

Securities & Exchange Commission, Annual Certified Shareholder Report, Form N-CSR.

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WHEREFORE, Relator respectfully requests a Writ of Mandamus ordering Michael V. Drake to provide detailed disclosures of his past and current relationships, financial and otherwise, with and to the individuals identified on his Financial Disclosure, SCHEDULE D, Income - Gifts, California Form 700, namely 1. 2. 3.

Charles Martin; Geoffrey Stack; Hazem Chehabi;

4. 5. 6.

James V. Mazzo; James Swinden; and John Croul.

This disclosure should include detailed disclosure of historical and current relationships with the companies and individuals associated with each of these men, their companies and identified company relationships. These disclosures should include full explanations of networks and relationships including but not limited to: 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13.

Abbot Laboratories, all divisions; Alex R. Fischer; Bank of the West; Barack H. Obama; Bill Clinton; David L. Goldwyn; Eastman Kodak; Fracking; General Electric; Goldwyn Global Strategies; Hillary Clinton; Jeffrey Wadsworth; Oracle, Larry Ellison, M.O.O.C. and Knowledge Universe; 14. Professor James P. Chandler, III; 15. Michael Milken;

16. 17. 18. 19. 20. 21. 22. 23. 24.

-32-

National Academy of Engineering; The Brookings Institution; The U.S. Department of Energy; The U.S. Department of Homeland Security; The U.S. Department of Justice; The U.S. Department of State; The Ford Foundation; The Syrian Civil War and Bashar Al-Assad; and Vistage.

Exhibit A Notice to Parties (McKibben, M., Bruns, M.). (August 28, 2015). Sunshine Audit Complaint. David Yost, Ohio Auditor of State.

Exhibit A, page 2

Exhibit A, page 3

Exhibit B Michael V. Drake, Form No. OEC-2013, Financial Disclosure Statement, submitted to the Ohio Ethics Commission, September 29, 2014.

13

Form No. OEC·2013 OHIO ETHICS COMMISSION

FINANCIAL DISCLOSURE STATEMENT

This statement is to be· filed in 2014 Financial information for calendar year 2013

Please tvP.e or print clearly. See instructions for assi~tance with this page. SECTION A. PERSONAl. CONTACT INfORMATION- - - -- - - - - - - - - - - - - - - - - ---, l ast Name First Name Ml J

0

IMichael

Drake

SECTION B. STATUS (Check ·all that apply)

D 0 0 0 0 l2l

0

Candidate Write-in Candidate Elected to an office Appointed to an une,xpired term in· elective .offic;e Public Offidal PubliC Employee VoluntafY Filer

FOR OFFICIAL USEONLY CANDIDATES: Please list the date of the first election (primary, special, or general) when your name will appear on the ballot.

FILED SEP 2 9 2014

~~th~.1 ____Y_e_ar____1 1

1

OHIO ETHICS COMMISSION

2o14

r SECTION C. PUBUC POSITION, OFFICE, OR JOB

0 fl1 0

Position/title (Example: council member, sheriff, board member. or jobtitle)

IPresident

Public Entity you serve in 2014. served in 2013, or will serve if elected

Seeking Hold Held

IThe Ohio Stata University Public Salary:

Start Date:

0

·Month I Day

0

·fl)·

Uncompensated less than $16,000. $16,000 or more

.End Date: Year

ro·la 13 o 1 2! o 11 141

I Month I I.

Year

Day

I I I

·--

0 0 0

Position/Title (Example: council member; sheriff. board member, or job title}

Public Entity you serve in 2014, served tn 2013, or will serve if elected

Public Salary:

0 0 0

Month I Day

Ur"ompeosated

I I

Less than $16,000 $16,000 or more

$eeking

I

J

I

Year

I. I

Held

r ·.

I

I

_JKI) Filer has answered every requlr·ed question. ~

rr FUer has not an:Swered these questions:

1\,)

·vear

I .I

1'?~:~,·;-,-,:]'r;~';.: ·~:1~ .}:_~-·~-.?~J:}!:i. /.?~£fo~ pJllq}rHi4:co~MiSSiON us_E ciN~Y, ·~ ~ ,. .; Wa . lk-in nter Office No Check d by: ::J(\

"'

-D

)> ·§

I Month 1·Qay

I

~

Hold

End Date:

Start Date:

·C,)

~

SECTION 0 , ADDITIONAL PUBLIC POSITION, OFFICE, OR JOB

w



Page 1 of4

N)

::,.,

~::u

("')('")

(J)rr, ·( '")-

e::><

.:r.~~·o (.'l ...,.,

--

~~-·~

::r.:

...'

":; .; ', :~-v · ·:-'.;;;;·:";¢.'r:~~~~"i.

Date incomplete form returned to filer: Date completed form : eturned to

·aec:

Exhibit B, page 2

:X:

0

1. SOURCES OF INCOME ·AU. FIURS MUST ANSWER THIS QUESTI ON:

0

(For help, see instructions page 4)

I have no sources of income that I am required to list. '

lA

.

Source of Income

,

-

-

Bank of the West

8 Bank of the West IRA

c

Bank of the West Investment / Mutual Funds

0 "Yells Fargo

Service Provided I ISavings and checking accounts-interest IRe tirement savings IRetirement savings ISavings and checking accounts-interest

E University of California-Irvine

IEmployment-Chancellor

F See attached State o f California Form 700

I

2. SOURCES OF GIFTS ~All FilERS MUST ANSWER THIS QUlSTION:

0

I

Amount

I

I I I I I

I

I I

less than $50

(For help, see instructions page 5)

I have no sources of gifts that I am required to list. ·, · :; .

source of~ift .

.. ... 1

·Source of Gift ·

ID

See attached State of California Form 700

3. NAMES OF SPOUSE RESIDING IN HOUSEHOLD AND ANY DEPENDENT CHILDREN· All fiURS MUST ANSWER llflS QUESllON:

0

(For help, see instructions page S)

There are no immediate family members whose name·s 1am required to list.

. •.<

.-

H~stiandhVife . .' . Resid.lng in·Household

' - • -:

.,

'

: :} ;

~

.-

Depen~ent Childr~n _•

~

Brenda Jackson Drake . ·-. : ·oependentcnlldren .- ,

. ..

. ..

---~ ·

'

i - - - - - -- --

.

.. .

-

1

I

~-----------------~-,

N/A

4. NAMES OF BUSINESSES· All FILERS MUST ANSWER THIS QUESTION: (For help, see instru,tions page 5) If you or anyone you listed in Question 3 owns or operates a business, list the name of the business.

0 ,.

There are no business names that I am requited to list.

::'f ... . . .

j •

.Business Na~e- ·.

.· s··

,; •



Business Name- -

lo (For i\elp~ . .. . . . .

5. LAND (REAL ESTATE) IN OHIO· All fiLERS MUST ANSWER THIS QUESTION:

!l) I have no real estate that I am required to list.

.

. . ..... . . . . . . '

A

..

...._

·:"!··t...·.•.> , ·...: · · . ·. ' La. rid (Real E.statetih ·otiio . . ' . . ~

~

.....

~

.- .·

· ..·

• ~

(List add~ess or., if·addtess _is unavailable, plat nu.mber and county)'

see. instructions page 6)

·..

'

. .. -

,.,_, '

'

.

:.'

·- ·

' .

8

-.I

c.

You are not required to disclose your personal residence or real property held primarily {or .penonal .re~reation.j Page 2 of4

Exhibit B, page 3

6. CREDITORS OVER $1,000 • All FILERS MUST ANSWER THIS Q.UEStiON:

(For help, see instructions page 6)

I have no creditors that I am requi red to list.



. Creditor;

Creditor

0 E

F 1. DEBTORS OVER $1,000 ·ALL FILERS MUST ANSWER THIS QUESnON:

Ill

(For help, see instructions page 6)

I have no debtors that I am required to list. · ~ebtor

~··---------------------~'-0--------------------~ 8. INVESTMENTS OVER $1,000- All FILERS MUST ANSWER THIS QUESTION:

0

(For help, see instructions page 6 and 7)

I have no investments that I am required to list.

.. :. ..£o·r·Ji~r~!icin, TruSt, _Bt,eslness Trust, Partn"er~hlp, fir ~rociatlon .

I I I I

A Bank of the West Mutual Fund/Investment Account

8 Bank of lhe West IRA

c

·Nature

of InveStment .

..

..

I I

Retirement Retirement

I

D

I I

E F

IF YOU NEED ADDITIONAL SPACE, PLEASE ATTACH A SEPARATE SHEET. 9. OFFICES/FIDUCIARY RElATIONSHIPS . All FILERS MUST ANSWER THIS QUESTION:

0

(For help. see instructions page 7)

I have no offices or fiduciary relationships that I am required to list.

~

··corporation, Tr~~t,:slisiness'Trust, Part-nershlp;or Asro~;iation :·

-

..

t



.._

-

..



• v

~

••

-

·

..-



.

Office or Nature of .. . Relationship..,_

,

A See attached State of California Fonn 700 and supplemental list 8

SKIP QUESTIONS 10 AND UIF YOU ARE A; • College or university trustee • Candidate for a city, township, school district, or ESC position that is paid less than $16,000 a year

• City, township, school district, ESC, or sanitary district official or emph;>yee serving in a position that is paid _____ -- --less than $16,000 a vear ---~------~---

tt9f-·herp~-;ee insttuc.tions page 8)

10. FOOD OR BEVERAGES· SKIP THIS QUESnON If USTEO IN BOX ABOVE:

Ill

I have no sources of meals, food, or beverages that I am required to list.

- .. .. l .

'

____..-.-------

___... ------

---

----

··~

'

-~t-..~

Page 3 of 4

-----.--

~



Exhibit B, page 4

-------

-----

----

.

Source ..of Food or Seve~ ages:"to .··

------------

11. TRAVEL EXPENSES· SKIP ntiS QUESTION If USTED IN BOX ON PAGE 3:

0

(For help, see in.structions page 8)

I have no sources of travel expenses that I am required to list.

, . ·.,-~.

Arne;unt .

.. Source ofTrave! Expenses

12. NON-DISPUTED INFORMATION • Allstate employees. stateoftodals and state board a!'!'f commi$sion me~bers le•csot wlleu

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