State ex rel. Lucas Cnty. Republican Party Exec. Comm. v. Husted

• Decision Date: 01 October 2015
• Docket Number: No. 2014–1123.,2014–1123.
• Citation: 144 Ohio St.3d 352,2015 Ohio 3948,43 N.E.3d 411
• Parties: The STATE ex rel. LUCAS COUNTY REPUBLICAN PARTY EXECUTIVE COMMITTEE v. HUSTED.
• Court: Ohio Supreme Court

144 Ohio St.3d 352

43 N.E.3d 411

2015 Ohio 3948

The STATE ex rel. LUCAS COUNTY REPUBLICAN PARTY EXECUTIVE COMMITTEE

v.HUSTED.

No. 2014–1123.

Supreme Court of Ohio.

Submitted May 19, 2015.

Decided Oct. 1, 2015.

The Law Offices of William M. Todd, Ltd., and William M. Todd, Columbus, for relator.

Michael DeWine, Attorney General, and Tiffany L. Carwile and Ryan L. Richardson, Assistant Attorneys General, for respondent.

PER CURIAM.

{¶ 1} Relator, the Lucas County Republican Party Executive Committee ("LCRP"), seeks a writ of mandamus compelling respondent, Ohio Secretary of State Jon Husted, to appoint Kelly Bensman and Benjamin Roberts to seats on the Lucas County Board of Elections. We deny the writ.

Background

The history of trouble at the Lucas County Board of Elections

{¶ 2} On December 9, 2011, Ben Roberts resigned as director of the Lucas County Board of Elections after five months on the job. In his resignation letter, Roberts described the board as "a caustic environment" and alleged e-mail fraud, document destruction, and a lack of policies and procedures. Roberts wrote that he was resigning because "it has been made nearly impossible for me to make a difference" at the board.

{¶ 3} Meanwhile, a Democrat on the elections board, James Ruvolo, told the Toledo Blade that "[e]ver since I got on the board, it has been obvious there are certain members of the board who create chaos and enjoy it." Messina, Elections Director Resigns Post, Toledo Blade (Dec. 9, 2011). Ruvolo clarified that he was referring specifically to Republican board member Jon Stainbrook. A reporter for the Toledo Free Press, writing two months later, stated that board meetings "typically escalate to heated altercations and eye-rolling among board members and sighs or hushed laughter from the public attending." McGlade, BOE Yet to Investigate Questionable Office Hours, Toledo Free Press (Feb. 19, 2012), A8.

{¶ 4} On August 13, 2012, Secretary of State Husted placed the Lucas County Board of Elections under "administrative oversight" after the board missed a deadline to produce a bipartisan organizational chart with position descriptions. This was the second time in 17 months that Husted had placed the Lucas County board under administrative oversight; the first such period ran from March to October 2011. As part of the second oversight, Husted relieved the director and deputy director of their responsibilities and appointed two special masters to conduct the daily operations of the board. In addition, Husted appointed two "bipartisan election administration consultants" to prepare a report on long-term solutions for the board.

{¶ 5} The report, prepared by former board member Ruvolo and former Assistant Secretary of State Jonathan A. Allison, was a harsh indictment of the board. The Allison/Ruvolo report concluded that "the Lucas County Board of Elections as presently situated is devoid of management leadership, is without most of the basic organizational structure, policies and procedures necessary to function as an accountable government entity, and is culturally plagued by mistrust and fear." The report continued:

It is difficult to describe in words the pervasive, underlying cultural problems at the Board. While we have earlier alluded to a genuine lack of trust, it is safe to say that mistrust and paranoia are pervasive at seemingly every level of the Board. Furthermore, an unhealthy, aggressive (both overt and passive) lack of trust and disdain exists between the director and deputy director. * * *

* * * Our interviews revealed instances where Board members openly demonstrated a rude, uncivil and unprofessional tone toward fellow Board members and toward Board employees.

The report recommended that the board remove both the director and the deputy director. Board member John Irish made a motion to adopt the Allison/Ruvolo report in its entirety, but the motion died for want of a second.

The transparency committee

{¶ 6} On April 2, 2014, Husted notified the board that he had appointed former Secretary of State Jennifer Brunner and former Assistant Secretary of State Scott Borgemenke as his representatives to assess the current state of the board's operations, policies, and procedures.

{¶ 7} Five days later, Husted issued Directive 2014–11 creating a four-member "transparency committee," consisting of Borgemenke, Brunner, Allison, and Ruvolo. The directive instructed the board to call a special meeting for April 9, 2014, and then turn the meeting over to the transparency committee, so it could inquire broadly about "individual-level and agency-wide policies, procedures and operations."

{¶ 8} At the first transparency-committee session, director Gina Kaczala, deputy director Dan DeAngelis, and the four board members (Ron Rothenbuhler, Stainbrook, Tony DeGidio, and Irish) testified for six hours. They described an organization in disarray, plagued by discord, and lacking basic employee policies and procedures as well as a working system for placing discussion items on its meeting agenda. In fact, the board members conceded that they routinely convened special meetings (i.e., executive sessions, at which, by law, the agenda would be restricted) and very rarely held regular meetings with open agendas.

{¶ 9} Of greater concern, board members and staff admitted that the board had not reviewed or voted to refer mandatory campaign-finance audit reports to the Ohio Elections Commission in over two years. Moreover, the deputy director testified that someone had tampered with the board's list of volunteer poll workers, but that he had neither investigated the matter nor informed the board of his concerns.

{¶ 10} The witnesses also alleged that the board staff failed to post a list of approved candidates until after the deadline for filing candidacy protests had passed, employees and board members secretly tape-recorded one another, someone improperly wiped a computer hard drive, Stainbrook routinely berated and insulted other board members, and an employee had filed a criminal complaint against Stainbrook for assault.

{¶ 11} The second session of the committee occurred six days later, on April 15, 2014. Witnesses, including board employees, revisited issues such as the lack of policies for handling campaign-finance reports and board-meeting agenda items, as well as the accusations of harassment and threats. In addition, the committee heard about security lapses at the board offices and an allegation that the board allowed voters to cast ballots on untested voting machines (an allegation that another witness disputed).

{¶ 12} The third session, on April 23, 2014, featured allegations that Stainbrook sent a text message to employees at the board's warehouse division instructing them to "work [as] slowly as possible and do not report any errors," in order to sabotage the upcoming election; that board staffers falsified information on the opposing party's poll-worker database; and that a board employee was arrested for getting high on bath salts and biting part of a woman's hand off.

{¶ 13} Robert Walden Jr., the board's IT manager for GEMS,¹ testified that on election night in November 2013, he was working on the computer server in a roped-off area to tabulate results. However, a group of people near the rope line were distracting him. A woman he later realized was Kelly Bensman was using her cell phone apparently to take pictures, which, along with the boisterous conversation, Walden found very disruptive. So Walden said to Bensman and the others, "[C]an we just do this later," which provoked Stainbrook to jump up and come running at Walden. And as this was going on, Walden stated, Bensman was "calling [him] all kinds of names, how the whole election is screwed up because of [him], blah, blah, blah."

{¶ 14} The fourth and final commission session occurred on May 9, 2014, after the primary election. By all accounts, election night was chaos at the board of elections.

{¶ 15} Stainbrook was involved in two separate incidents that evening. The first was an argument he and former board director Meghan Gallagher had with Kaczala over who had the authority to administer oaths to election observers. Kaczala testified that as Gallagher and Stainbrook were confronting her, Bensman, who was one of the observers waiting to take her oath, joined in by hurling insults at Kaczala and making fun of her makeup and appearance.

{¶ 16} Later that evening, as the tabulation process dragged on, a second shouting match erupted. The issue, according to Stainbrook, was that five voting-machine data cards were missing. Whatever the impetus, Kaczala said, "Mr. Stainbrook began to yell at me and he called me a liar * * *. [I]t all went chaotic because Jon was just screaming at me."

{¶ 17} At the close of the May 9, 2014 meeting, the committee publicly recommended the removal of Stainbrook, DeGidio, and Rothenbuhler from the board. In addition, the committee recommended the termination of Kaczala and DeAngelis.

{¶ 18} Husted then appointed his director of elections, Matt Damschroder, as a hearing officer to allow the officials an opportunity to explain why they should not be removed from office. DeAngelis voluntarily resigned. The others attended a seven-hour session on May 15, 2014, at which they had the opportunity to defend themselves from accusations recited by the members of the transparency committee.

{¶ 19} On June 4, 2014, Damschroder issued a report recommending that the secretary remove Director Kaczala and the three board members. The next day, Husted removed Stainbrook, DeGidio, and Rothenbuhler from their positions and suspended Irish until new board members were sworn in. However, he allowed Kaczala to stay on as interim director.

The rejection of Bensman and Roberts

{¶ 20} A county board of elections consists of four members, appointed by the secretary of state. R.C. 3501.06(A). Seats are apportioned between the two major political parties. R.C. 3501.06(B). Appointments for new...