An affidavit filed in a $10 million lawsuit against the city of Toledo claims former Councilman Gene Zmuda and other council members knew in 2002 that Councilman Bob McCloskey was demanding that developers pay $100,000 if they wanted their property rezoned for the charter school they hoped to build in East Toledo.

John J.T. Stout, a special projects director of Leona Group LLC, an East Lansing, Mich., charter school operator, said in a sworn statement filed in U.S. District Court that Mr. Zmuda, now presiding judge of Toledo Municipal Court, participated in two discussions about Mr. McCloskey s request for payment before a council vote in August, 2002.

On Aug. 27, 2002, council voted 7-4 to defeat the rezoning after four members, including Mr. McCloskey, a Democrat, changed their votes from when the issue was voted on in committee a month earlier. Mr. Zmuda, a Republican, was one of the four council members who voted for the rezoning, along with Betty Shultz, George Sarantou, and Rob Ludeman.

Lawyers for the city of Toledo claim the majority decided against the rezoning because they wanted to preserve industrially zoned property for manufacturing uses.

Matthew Harper, a lawyer who filed suit against the city for EJS Properties, LLC, the charter school developer, wrote in a motion that the rezoning was rejected because of a scheme to coerce a bribe from EJS and Pilkington.

The city of Toledo knew about the scheme before the final vote of city council, but allowed Mr. McCloskey to carry out his threat by garnering the votes on council to deny the rezoning, Mr. Harper s motion says.

The Stout affidavit does not indicate what, if anything, Mr. Zmuda did to try to overcome Mr. McCloskey s opposition.

EJS Properties sued the city in 2004 after council voted to rezone the same parcel for a Toledo Public Schools middle school. The suit claims Mr. McCloskey had an interest in the payment he was seeking because he is a Pilkington retiree and because he harbored a grudge against Pilkington for allegedly reneging on a deal to pay for retirees prescription benefits.

Mr. McCloskey has not denied requesting the $100,000 to set up a fund to help Pilkington retirees deal with escalating prescription drug costs.

In his deposition, Mr. McCloskey declined to answer when asked whether his vote on the rezoning hinged on a payment of $100,000, asserting his fifth amendment right not to incriminate himself.

Lawyers for Mr. McCloskey and the city have formally denied the allegations in the lawsuit.

Records submitted in the lawsuit allege he threatened developers with defeating their rezoning request if they wouldn t make the $100,000 payment he was seeking.

The court filings allege Mr. McCloskey made requests for money in three taped voice mails in the weeks leading up to the council vote.

In one call, on Aug. 8, 2002, Mr. McCloskey left a message for Erich Speckin, the charter school developer: This is Toledo City Councilman Bob McCloskey ... This project is probably not going to happen. Pilkington and Libbey-Owens-Ford are not coming to the table with anything to help. I have the votes on council to stop this project.

On Aug. 20, 2002, Mr. McCloskey left a telephone message on the phone of John Keil, Pilkington s director of property management and environment affairs: Hi, John, it s Bob McCloskey ... I have not heard anything from Mr. [Randall] Berg or anybody else, but as far as I m concerned I will not move the project out of committee.

Mr. McCloskey was more direct with Pilkington s Randall Berg in an Aug. 21, 2002, voice mail: I am still looking to receive a check for $100,000 to the East Toledo Family Center.

Six days later, without delivery of a check for $100,000 from the charter school developer or from Pilkington, Councilman McCloskey switched his vote along with three fellow Democrats and voted against the rezoning, killing the developer s chances to build a charter school.

In the three-page affidavit filed recently, Mr. Stout describes two conversations in the lobby of Government Center involving him, Mr. Speckin, Mr. Keil, and Mr. Zmuda.

All four of us discussed Mr. McCloskey s request for monies. Mr. Zmuda knew about Mr. McCloskey s request and indicated others did as well, Mr. Stout said in the affidavit.

The same topic was discussed in a second meeting, Mr. Stout alleged.

During that conversation, Mr. Zmuda said to Mr. Speckin, Mr. Keil, and myself, don t panic, and I think I can fix it, Mr. Stout said. He said Mr. Zmuda supported the rezoning and was hopeful the legislation would still pass.

Lawyers for the city of Toledo and Mr. McCloskey have filed briefs to have the affidavit thrown out. They claim it was filed after the court s deadline for evidence to be introduced and that it is hearsay, which is not admissible in a trial.

They also claim that the affidavit is suspect because Mr. Keil s and Mr. Speckin s depositions don t mention Mr. Stout.

If allowed by the judge, the affidavit could undermine the city s defense that the entire council cannot be held liable for the improper actions of one council member.

In a motion for summary judgment, the city acknowledged that it could face a municipal-liability issue if it was proven that any of the other six council members who voted no on the rezoning knew about the demand for payment.

Judge Zmuda yesterday repeated to The Blade what he stated in his 2004 sworn deposition, that he did not recall hearing about a McCloskey demand for money in exchange for a property rezoning.

He said he would not comment further, based on the advice of the city lawyer handling the case.

The Lucas County prosecutor s office has said it is conducting an investigation into whether Councilman McCloskey violated any criminal laws. Frank Stiles, a retired Toledo police detective, is conducting the probe for the prosecutor.

Mr. McCloskey s legal defense is being paid by the city, for which council has authorized $90,000 so far.

Mr. McCloskey, a member of council since 1994, did not return a call seeking comment yesterday, but has recently declined to comment on the case based on advice from his lawyer.

Contact Tom Troy at: tomtroy@theblade.com or 419-724-6058.

First Published January 6, 2006, 12:54 p.m.