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Ex-justice touches JobsOhio in new role

Julie Carr Smyth, AP Statehouse Correspondent

FILE-In this Monday, Feb. 11, 2013 file photo shows Ohio State Auditor David Yost discussing the latest results of his probe into school districts' alleged tampering with school attendance data in Columbus, Ohio. Former Republican Ohio Supreme Court Justice Robert Cupp sat on the court when it began weighing a pivotal question in the constitutional challenge to JobsOhio. Now, he's top lawyer to Yost, who subpoenaed private financial documents from JobsOhio in a high-profile faceoff.(AP Photo/Andrew Welsh-Huggins, File)

COLUMBUS, Ohio (AP) -- A former Ohio Supreme Court justice's new state job is raising unique ethical questions in the ongoing legal battle over Gov. John Kasich's nonprofit job-creation agency.

The former justice, Republican Robert Cupp, sat on the court when it was asked to weigh pivotal questions in the ongoing constitutional challenge to JobsOhio, the nonprofit Kasich created to expedite economic development. The nonprofit's unusual semi-private structure has raised a host of legal, ethical and transparency issues.

Now, Cupp is top lawyer to Auditor Dave Yost, who recently subpoenaed private financial documents from JobsOhio in a high-profile faceoff with the Kasich administration.

Having a former Supreme Court justice on his staff gives Yost access to a wealth of information about the judicial process, information that could bump up against ethical boundaries depending on what or how Cupp might advise on the JobsOhio audit.

Cupp attended a pair of meetings with representatives of JobsOhio and Kasich's office days before JobsOhio both complied with Yost's subpoena and announced it was returning all its public startup money on March 19, records obtained by The Associated Press show.

The JobsOhio meetings organized by Yost took place March 13 and March 14. Besides him and Cupp, Kasich chief of staff Beth Hansen and JobsOhio president John Minor attended, according to the documents.

Cupp said the JobsOhio meetings didn't approach ethical restrictions he might face surrounding JobsOhio because of the nature of Yost's dealings with the agency.

"The question before the state auditor didn't have anything to do with standing or the constitutionality of JobsOhio," he said.

He said he's on the lookout for such conflicts in his new job "not only with JobsOhio but any issue that might come up affecting a court case or confidential information that was obtained in my role as a justice."

Yost spokeswoman Carrie Bartunek said the audit is not connected to a lawsuit against JobsOhio that argues it's illegal to invest state money in private companies and to pass bills creating special corporate powers.

Yet relinquishing all its public funds could potentially impact JobsOhio's status under the lawsuit.

The liberal think tank ProgressOhio and two Democratic state lawmakers originally filed the suit in 2011. The lawsuit landed at the Ohio Supreme Court on appeal last July, while Cupp was still on the bench. He left in January after failing to win re-election in November, just before the court announced it would take the appeal.

Cupp dissented in September in a 4-2 decision to toss a complaint that state officials hoped might resolve legal concerns over JobsOhio and seal its right to run the state liquor business and use its profits.

Cupp playing a role in Yost's negotiations with JobsOhio raises unique questions — and a potential red flag, said Judge Mike Fain of the 2nd District Court of Appeals, who has written on judicial ethics for the Ohio State Bar Association.

"The thought would be that in a multi-judge court — either a Court of Appeals or a Supreme Court — you are privy to the thinking of your recent colleagues that goes beyond what appears in the actual opinions," he said, "and that that could give you an insight that would be kind of unfair in knowing how to approach the issues, how to frame them, how to argue them, what's likely to work and what isn't."

Laura Jones, a spokeswoman for JobsOhio, declined to discuss the substance of the meetings. She said the agency had always intended to return the public money it received once its bond offering had been completed.

"It was a way to put those dollars back into the state's pockets, since that funding was now in place," she said.

Cupp said JobsOhio's decision to return the public money came as a surprise to him. He said he read about it in the paper.

Cupp could not predict whether his representation of Yost in the dispute over JobsOhio audit would ever come to a point where he had to step out of discussions.

"I would certainly be alert for that," he said.