LFC Comments: Here is a copy of an email written by Armen Tovmasyan, Candidate for Willoughby Hills City Council, to the Lake County Board of Elections.
It looks like Ms. Julie Belich has filed a complaint, with the help of Willoughby Hills’ Law Director Mike Lucas, with the BOE against her own mistake of filing a faulty petition. We may have to get our own detectives, Holmes and Watson, on this case that is starting to have the aroma of a rotting carcass.
Dear Board of Elections Members:
I am writing to formally protest the petitions of Julie Belich. I have become aware that Belich, with the assistance of the Willoughby Hills Law Director Michael Lucas, may be attempting to change the seat she is running for from the Council-at-Large seat commencing on January 2, to the Council-at-Large seat commencing January 1. I am protesting this change.
It is my understanding that the Willoughby Hills Law Director Michael Lucas, has attempted to usurp the power of the Board of Elections by intervening on behalf of the personal interests of Belich, before the Board of Elections has even considered Belich’s petitions. Lucas demanded that the Director of the Board of Elections submit a notice to Belich that her petitions were unspecifically insufficient based on his personal review of the petitions, which he has no authority to do. Presumably, Lucas wanted the notice so it would trigger the ten-day cure period under Section 8.32 of the Willoughby Hills Charter. If Lucas is successful in intervening on behalf of Belich in this way, this would give Belich the ability to change the information on her nominating petitions and essentially choose whichever seat she would like to run for after the filing deadline. This is specifically prohibited by ORC 3513.052 because it essentially allows Belich to run for two seats and choose which one she wants to drop out of.
Moreover, Belich had a sufficient number of signatures more than a week before the filing deadline, yet chose to file her petitions on the last day of filing. If Belich filed them when she had more than adequate signatures, she would have been alerted of the fatal error on her petitions and had plenty of time to refile petitions for any seat she wished. Waiting to the last minute and with Lucas’s intervention, Belich seeks to choose the municipal office she wants to file for after the filing deadline, essentially running for two seats and dropping out of the one she no longer wants to run for with the information she has about who else is running for each office.
Shockingly, Lucas seems to think he has unlimited discretion under the cover of “home rule” to allow any candidate he chooses to change seats after the filing deadline in violation of Ohio law. No other Willoughby Hills candidate enjoys such a privilege and would be essentially punished for complying with the law why Belich would be rewarded with free legal representation paid for by taxpayers and the ability to pick and choose her opponent.
A NOMINATING PETITION MUST IDENTIFY ONLY ONE OFFICE
ORC 3513.251 governs the process for nominating candidates for municipal office. It requires that “Nominations of candidates for election as officers of a municipal corporation having a population of two thousand or more shall be made …by nominating petition”. The Charter defines officer to include members of its Council. Section 3.12.1 of the Charter delineates four distinct officers in the form of Council-At-Large Seats:
ORC 3513.251 requires the filing of nominating petitions for one, identifiable municipal office. ORC 3513.052 prohibits any candidate from running for more than one office. In this case, there were four sections of the petition form filed by Belich in which she identified the municipal office she was running for: two entries of title of office and two entries of term commencement date of the office. Belich consistently entered the term commencement date twice for the Council-At-Large II seat but two different titles of office, one of which could be any of the four Council-At-Large Seats and one of which did not match the term commencement date. It is up to this Board of Elections to determine whether Belich’s petitions substantially comply with the petition form requirements. Only the Board of Elections can determine if there is a defect on petitions and identify what that defect is.
THE WILLOUGHBY HILLS CHARTER DOES NOT REMOVE THE AUTHORITY OF THE BOARD OF ELECTIONS TO DETERMINE THE SUFFICIENCY, VALIDITY OR DEFECTS OF NOMINATING PETITIONS
Section 8.32 of the Willoughby Hills Charter provides a particular two-step procedure for the review of petitions. First:
Within ten (10) days after the filing of any petition, the Director of Elections … shall examine each part of the petition to see if it is sufficient and in proper form, and certify his findings to the Board of Elections.
If any petition is found insufficient or incorrect in form or substance, the petitioners shall be notified of the findings, including what particulars have been found defective.
Step one requires that the Director of the Board of Elections review petitions for sufficiency and proper form and report his findings to the Board of Elections within ten days of the filing. The Charter is silent about what form this certification should take. Is the Director’s verbal findings enough? What form has this certification taken in the past? Has it always been strictly adhered to? Were the Director’s findings on my petitions certified?
Step two requires the Board of Elections to make the ultimate findings on the sufficiency and correctness of the form and substance of the petitions. It would make no sense for step one to require the Director to submit his findings to the Board of Elections if the Board of Elections was not to exercise its statutory authority to make the final determination on the sufficiency and correctness of the petitions. The Board of Elections is tasked with the exclusive authority and duty to make such findings under ORC 3501.11(K) Moreover, the Charter is silent about who makes these findings and when the CHarter is silent, state law prevails. Additionally, it is questionable whether a Charter could permit someone other than the Board of Elections to make such determinations even if it did so explicitly, because ORC 3501.11 has all the hallmarks of a general law of the state.
Additionally, while the Charter requires the Director to submit his findings on petitions to the Board of Elections within ten days of the filing deadline, the Charter is silent about how long the Board of Elections has to make its final determination or to send notice. Under Ohio law, ORC 3513.263, the Board of Elections has until the 78th day before a general election to make its final determinations.
Once this two-step process occurs–the Director reports his findings to the Board of Elections and the Board of Elections makes its final determination whether there is a defect in the petitions and, if so, notifies the petitioner of such defect–then and only then, does Section 8.32 of the Charter permit a petitioner to cure a defect on her petitions in certain circumstances:
The petitioner’s right to cure any defect only exists if the Board of Elections sends notice of a curable defect. If the Board finds no defect, then there is no need for notification. If the petitioner receives a notice that her petitions contain a defect determined by the Board of Elections, other than an insufficient number of valid signatures, she may recirculate petitions with the specified defect corrected and refile her petitions within ten days of the date the Board of Elections sends the notification.
In this case, pursuant to the Charter and Ohio law, only the Board of Elections may make the final determination whether there is a defect on Belich’s petitions, particularly whether the discrepancy between the two entries of the term commencement date and the one entry of the term title is a “defect” under Section 8.32 of the Charter that can be corrected after the filing date. The Charter is silent about what constitutes “petitions that are insufficient or incorrect in form or substance”. Again, because of this silence, state law prevails. ORC 3501.11(K) provides that the Board of Elections has the exclusive authority and duty to “[r]eview, examine, and certify the sufficiency and validity of petitions and nomination papers”. Only the Board of Elections may determine whether petitions are sufficient or whether they are insufficient or incorrect in form or substance, whether such insufficiency is a mere defect, and, if so, what the particular defect is and how a petitioner may correct it pursuant to Section 8.32 of the Charter.
BELICH’S PETITIONS CAN ONLY BE INTERPRETED TO BE A NOMINATION FOR THE COUNCIL-AT-LARGE SEAT WITH TERM COMMENCING ON JANUARY 2, 2022
It is not clear that Belich’s petitions are defective. The Ohio courts have long held that strict compliance is not required on nominating petition forms, rather “a declaration of candidacy should not be rejected by a board of elections for mere technical defects where the board is able to clearly determine from the petition the office for which the declarant is a candidate”. State ex rel. Cofall v. Bd. of Elections, 120 Ohio App. 64 (8th Dist. 1964). Based on the information Belich entered on her petitions, the only municipal office that one could reasonably conclude Belich wished to run for was the Council-at-Large II seat, commencing on January 2, 2022. Three of the four entries identifying the seat are consistent with the Council-at-Large II seat.
Moreover, the Ohio Supreme Court has held that where there are more than one term commencement dates for similar offices, the term commencement date is the determining factor for identifying the office a candidate seeks to run for. In this case, Belich consistently listed the term commencement date twice. State ex rel. Calhoun v. Scioto County Bd. of Elections, 36 Ohio St. 3d 164 (1988). The only reasonable conclusion that can be drawn is that either Belich substantially complied with the requirements of the form to be a candidate for the Council-At-Large seat with the term commencing on January 2, 2022, or that the “defect” on her petition was that for the one entry of “Council-At-Large I” could be changed to match the term commencement date of January 2, 2022 which was entered twice.
The only two reasonable findings on Belich’s petitions is that she substantially complied with all form requirements to run for the Council-At-Large II seat with the term commencement date that matches the two entries of January 2, 2022 on her petitions, or that the defect on her petitions is that the first entry of the office title is incorrect and pursuant to Section 8.32 of the Charter, she may recirculate petitions with either “Council-At-Large” to match the other entry or “Council-at-Large II”, either of which would then make the first entry of the office title consistent with the January 2, 2022 term commencement date. I would appreciate your consideration.
Very truly yours,