Board of Elections hands tied by legal oddity


By Lorna Hart - lhart@civitasmedia.com



According to the Ohio Revised Code (ORC) 3501.11, the Secretary of State and the county board of elections have the duty to examine all original campaign finance reports filed with their offices, and the power to investigate irregularities by election officials or violations of election and campaign finance laws.

Summarized, the county board of elections is responsible for every aspect of voting including:

establishing election precincts

providing places for registration and for holding primaries and elections

the purchase, preservation and maintenance of all materials and equipment used in registration, nominations, and elections

printing and delivery of ballots

receive the returns of elections

report voter information to the secretary of state

determine the residence qualifications of electors

establish and maintain a voter registration database of all qualified voters

maintain voter registration records and give approval to ballot language for any local question or issue

review, examine, and certify the sufficiency and validity of petitions and nomination papers

POMEROY — With the March 15 Primary Election just a few days away, the role of the Board of Elections should be clarified.

The powers and limits of the board of elections as it pertains to certifying the sufficiency and validity of petitions was discussed during a special meeting of the Meigs County Election Board on Jan. 20. The hearing was called as a result of a protest filed challenging the validity of Larry Tucker’s candidacy for Meigs County Commissioner in the March 15 primary.

The Ohio Revised Code(ORC) specifies the first recourse given to a citizen who questions the validity of a candidate is to file a protest with the accountable Board of Elections.

As covered in a previously published report by the Daily Sentinel, current Meigs County Commissioner Smith, seeking his second term in office, brought forth the issue to election board officials of whether his opponent, Larry Tucker, was “unclassified” or “classified” in regard to his employment with the Village of Middleport as a jail corrections officer.

The distinction would be critical, as Smith submitted documentation of both Meigs County and the Village of Middleport policies that forbid classified employees from certain political activity, namely running for partisan political offices. In addition, he cited Section 124.57 of the Ohio Revised Code which also prohibits such political activities.

According to the ORC, new government hires are deemed unclassified and remain so for ninety days. Unless the employee signs a form presented by his or her employer during that period advising the employee of their unclassified status, they automatically become classified. Smith stated no record was found in the Meigs County Auditor’s Office or the Meigs Court of Common Pleas declaring Tucker to be unclassified and cited Section 124.11 of the Ohio Revised Code in opposition of Tucker’s candidacy.

A document provided by Middleport Mayor Sandy Iannarelli dated Jan. 20 regarding Tucker’s status indicated that the village regarded him as classified.

The Daily Sentinel obtained an official recording of the hearing, which lasted nearly an hour.

Acting in his role as legal advisor for the board of elections, Assistant Prosecutor Jeremy Fisher explained his findings.

Fisher stated that “the BOE just looks at the sufficiency of a petition, whether they have valid signature signatures, standard requirements,” but lacks enforcement powers depending on the violation. In this case, he concluded “no where in the ORC does it say the BOE can prevent a classified employee to circulate petition or run for office.”

“According to ORC 123. 1-46-02, partisan activity on the part of a candidate does not give a protest option to the BOE as a remedy. ORC 124.57 also addresses partisan activity, so it is our opinion, whether a candidate is classified or unclassified, it is irrelevant (to their decision).

Fisher cited Ohio Attorney General opinion 2000 -2- 200, which quotes “even if the BOE had been aware of the candidates employment as a classified employee when he filed the declaration and petition prior to any primary election, it would not have had to reject the candidacy to election.”

The board members sought clarification that running for office while a classified employee constituted a criminal matter. The Assistant Prosecutor agreed it appeared to be a minor misdemeanor, but said specifics like a fine or possible jail term were outside the scope of both the hearing and the offered legal counsel.

During Smith’s turn at closing statements before the board voted, he said, “I want to make clear, I’m not asking the BOE to make a determination or whether he is violating the law, I’m asking that if he is prohibited by law, if his political activities are limited to voting and supporting a candidate, I cannot see how the petitions could possibly be valid.”

Tucker also made a closing statement. “My wife and I are very hard workers in this community.” He continued “I work 80, 90 hours a week. I feel like I’m being punished here for that. I am ready to resign my Middleport post and take a temporary leave of absence until after the election, if that will satisfy your curiosity, or whatever, I will resign.” He then clarified, “NOT resign, the mayor and my boss down in Middleport said I can take this leave until after the primary, if that’s what I need to satisfy everyone in this room.”

Tucker also asserted that uncertainty of his status was a new issue, only learning the night prior that he may be classified. “Until eight o’clock last night, my two immediate supervisors and the mayor of Middleport were unaware of whether I was classified or unclassified, so how am I to know if they don’t know?”

Following an executive session motioned by Rita Slavin, the board ruled unanimously to deny Smith’s protest. The board fully described their reasoning during the open session, and so the ruling did not necessitate issuing a formal statement at the close of the meeting.

However, Former Ohio State Senator and Representative and current BOE board member Jimmy Stewart elaborated this week when asked for comment.

“The Ohio Revised Code says if you are in a classified position, you cannot seek a partisan position. The law has a remedy or penalty, if someone chooses to run, but the law does not say the person is to be taken off the ballot by the BOE and it does not give the board the authority to remove the candidate for that reason, it is a matter for the prosecutor.”

He continued, and said the law does spell out occasions where they have the authority to take someone off the ballot.

“For instance, the board could take someone off the ballot if they were under or over the age requirement. Another example, someone is running for office and the board finds out they have a felony conviction, the board has the authority to remove them from the ballot. But in this event, the law doesn’t give the BOE the authority (to do so).”

“And while there might be a penalty, it isn’t being taken off the ballot. It is not a question of what the law ought to be, it is what it is and the board must follow it. We can only do what the law allows.”

When asked if a candidate has to prove to the BOE if they are classified or unclassified, he answered that even if the board knew the day a candidate filed, they still do not have the authority to disqualify them.

“The board heard the evidence, and the vote was unanimous, we had to comply with the law.”

Adding to the late-hour campaign drama, the Village of Middleport Solicitor Richard Hedges issued a legal opinion on February 3 that holds all Village employees are unclassified, which would include Tucker. Such an situation would possibly expose any current Village employee to removal without cause, as they would no longer receive the protections enumerated under classified status.

However, those developments, and the potential criminal matter hovering over the election, remain outside the purview of the Election Board.

During the recording of the special meeting, BOE Chairman Charles Williams said, “So far, we have heard from the prosecuting attorney’s office, and we have no option but to accept it, beyond that, if it is a criminal case, it needs to be decided by someone other than the election board, that is my interpretation.”

“The board of election relies on the advice of our legal counsel when this type of issue occurs,” Williams had said in an earlier interview. “We can only do what the ORC allows us to do.”

By Lorna Hart

lhart@civitasmedia.com

According to the Ohio Revised Code (ORC) 3501.11, the Secretary of State and the county board of elections have the duty to examine all original campaign finance reports filed with their offices, and the power to investigate irregularities by election officials or violations of election and campaign finance laws.

Summarized, the county board of elections is responsible for every aspect of voting including:

establishing election precincts

providing places for registration and for holding primaries and elections

the purchase, preservation and maintenance of all materials and equipment used in registration, nominations, and elections

printing and delivery of ballots

receive the returns of elections

report voter information to the secretary of state

determine the residence qualifications of electors

establish and maintain a voter registration database of all qualified voters

maintain voter registration records and give approval to ballot language for any local question or issue

review, examine, and certify the sufficiency and validity of petitions and nomination papers

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