COLUMBUS -- State lawmakers gave embattled Attorney General Marc Dann breathing room Tuesday that they hope will persuade him to voluntarily resign rather than be impeached.
The immediate threat of impeachment slowed in part because state lawmakers were grappling with the reality that they will be making history and setting legal precedent for perhaps centuries to come. Ohio has not used the impeachment process since 1820, and the last time someone was impeached and convicted was 1808.
Gov. Ted Strickland and all other state level Democrats told fellow Democrat Marc Dann in a letter Sunday that impeachment would begin immediately if Dann did not resign. Dann has refused their demands after admitting to an affair with a subordinate that he said contributed to an atmosphere in his office that led to sexual harassment claims.
Lawmakers had not yet settled on what impeachable offenses they would level against Dann and suggested they may give him the rest of this week before proceeding.
"I think there's a big difference between asking someone to resign and moving forward with the impeachment process," said House Speaker Jon Husted, a Kettering Republican. "What we do will set the standard for how anyone will be impeached in this state going forward and that is a serious constitutional concern."
House Democratic leader Joyce Beatty of Columbus said the lack of immediate action shouldn't be interpreted as a sign that lawmakers were rethinking their position.
"We simply said that we'd asked him to resign and I think we are giving him time to look at that and discuss that, as we take time to look at the legislative process and work together," Beatty said.
Lawmakers are struggling with what constitutes an impeachable offense.
There are two schools of thought on impeachment -- one a narrow view, and the other broader.
The Ohio Constitution explicitly mentions "misdemeanors" and specific crimes proscribed in law, while U.S. Supreme Court Justice Joseph Story, who served during the early 1800s, wrote that impeachable offenses include personal misconduct, gross neglect or habitual disregard of the public interests.
Constitutional scholars say misdemeanors, in the modern sense, did not exist when the state constitution was written and the word was used at the time to mean a wrong act.
Some of the allegations that have been made against Dann:
--Inconsistencies in Dann's testimony during the investigation of sexual harassment complaints against a top aide in his office. Dann amended his testimony to tell investigators that his scheduler, Jessica Utovich, spent the night at his apartment after first saying that he didn't know whether she had because he was barely there.
--Poor hiring decisions. Anthony Gutierrez, Dann's general services director, was found by an internal investigation to have sexually harassed two 26-year-old employees and was fired. Leo Jennings, Dann's communications director, was fired after investigators said he encouraged another employee to lie in her testimony. Ed Simpson, Dann's policy chief, resigned after investigators said he failed to adequately address evidence of employee misconduct. All three have known Dann for years, and Dann acknowledged that his office had engaged in cronyism.
--Drunk driving or misuse of state vehicles. Cindy Stankoski, one of the women who accused Gutierrez of sexually harassment, said Gutierrez bragged to her that he and Dann "broke the law" the first night Dann was in office by drinking and driving. Dann says that's not true.
--Misuse of state e-mail. Dann used his state e-mail to exchange playful messages with his scheduler, and oversaw an office where profanity and unprofessionalism were the norm.
--Mismanagement. Dann himself admitted his failures in managing a large office, saying his election to the agency much larger than anything he had ever run came as a surprise.
Steve Steinglass, a professor at Cleveland-Marshall College of Law who has written a book on the Ohio Constitution, was skeptical Dann's actions rose to the level of impeachable offenses.
But "if the decision-makers believe that, cumulatively, these smaller things add up to a very, very serious set of misdeeds they could act on," Steinglass said.
At least one Democrat believed the Legislature could be overstepping.
"The accusations don't rise to the level of impeachment and I seriously believe that we have to move very carefully in this chamber and to show respect, because if it is only infidelity, we'd be here a long time," said state Rep. Bob Hagan, a Youngstown Democrat.
The House would need to draft specific articles for Dann's impeachment that would read like an indictment. To be upheld, each count would need at least 50 votes from the 99 House members.
Any counts that received enough votes in the House would then be investigated in a trial-like setting in the 33-member Senate, which would need a two-thirds vote for any count to result in Dann's removal from office.
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