Secretary of State Jon Husted had the right to declare two Lucas County Republicans incompetent to be on the county board of elections because he deemed them central figures in the “environment of dysfunction and distrust” surrounding the board, the Ohio Supreme Court ruled today.

In a 4-0 per curiam opinion, with three justices not participating, the Supreme Court ruled that Husted did not abuse his discretion when he rejected the nominations of Kelly Bensman and Benjamin Roberts by the Lucas County Republican Party to be the GOP representatives on the four-member county board. The Supreme Court denied a writ of mandamus sought by the party to overturn Husted’s decision and place the two on the board.

Troubled History of Elections Board
At the time he rejected the nominations of Bensman and Roberts, Husted told the party that for three years his office has had to regularly intervene in the county board’s operations to ensure proper administration of elections. He first placed the elections board under “administrative oversight” from March to October of 2011. During part of that time Roberts was elections board director, but in December 2011, he resigned. In his resignation letter, Roberts described the board as a “caustic environment” and said part of the reason he was resigning was because it was “nearly impossible for me to make a difference.”

In August 2012, Husted again placed the board under administrative oversight after the board missed a critical deadline for providing Husted key organizational information. He fired the director and assistant director, and he appointed two special masters to operate the board and two administrative consultants to prepare a report about the board. Assistant Secretary of State Jonathan Allison and former board member James Ruvolo produced the report and found the board “devoid of management leadership” and without the necessary structure, policies, and procedures to function as a government body. The two reported the board “is culturally plagued by mistrust and fear,” and recommended the board adopt new policies and procedures.

The board did not adopt the findings of the report, and in April 2014, Husted appointed a “transparency committee” that included Allison, Ruvulo, former Democratic Secretary of State Jennifer Brunner, and former Republican Assistant Secretary of State Scott Borgemenke to examine the operations. The committee took extensive testimony from the board’s director, Gina Kaczala, and deputy director, Dan DeAngelis, and the four board members, Republicans Jon Stainbrook and Tony DeGidio, and Democrats Ron Rothenbuhler and John Irish. Based on the findings, Husted removed Stainbrook, DiGidio, and Rothenbuhler from the board, suspended Irish, and allowed Kaczala to stay on as interim director. DeAngelis resigned.

Appointees Recommended by Parties
By law, vacancies on boards of elections are filled by appointments from the parties. R.C. 3501.06 provides a process for parties to recommend replacements and directs the secretary of state to select the recommendations unless the secretary “has reason to believe that the elector would not be a competent member of the board.” Stainbrook, as chairman of the Lucas County Republican Party, delivered a letter to Husted recommending Bensman and Roberts. Husted rejected the recommendation and provided written reasons for the rejection. The party then had two choices, either recommend others or seek a writ from the Supreme Court to overturn his ruling. The party sought the writ.

Husted then accepted the Democratic nominee to replace Rothenbuhler, reinstated Irish, and appointed two Lucas County Republicans whom he selected himself, so that the board had four members and continued to operate during the appeal process.

Board Must Prove Appointees Are Qualified
The Court explained that state law expressly places the burden of proof on the party to prove the nominees are qualified, and that Husted has discretion to determine the competence of recommended candidates. The Court noted it will overturn the secretary’s rejection of a recommendation “only to correct an abuse of discretion.”

Citing the Supreme Court’s 1974 State ex rel. Lucas Cty. Democratic Executive Commt. v. Brown decision, the Court noted that competence to serve is more than just having the qualities of intelligence and integrity. “It also includes the basic ability to get along with co-workers and inspire confidence in the election system,” the opinion stated.

Regarding Bensman, who is a hydrogeologist with an engineering firm, the party described her as “politically active” and “generally familiar” with the board’s operations. Husted wrote, however, the reports he received found Bensman to be “a central figure in creating an environment of dysfunction and distrust” at the board.

“Appointing a board member with her long history of disruptive and confrontational behavior, who was repeatedly described as engaging in intimidating tactics and abusive language with board members and staff, would ill-serve Husted’s goal of restoring public confidence in the Lucas County Board of Elections,” the Court concluded.

Aside from serving five months as board director, Roberts has spent 15 years as an executive in a management consulting company. Husted described Roberts as incompetent to be on the board because Roberts indicated in his resignation letter he was “not up to the job” of changing the culture of the board. The Court found that Husted was within his rights to interpret the word “competence” to include the ability to change the culture of the board and the Court deferred to Husted’s decision. It held the county GOP was not entitled to have Roberts or Bensman appointed.

Justices’ Votes
Chief Justice Maureen O’Connor and Justices Paul E. Pfeifer, Terrence O’Donnell, and William M. O’Neill joined the majority opinion.

Justices Judith Ann Lanzinger, Sharon L. Kennedy, and Judith L. French did not participate in the decision.

2014-1123. State ex rel. Lucas Cty. Republican Party Executive Commt. v. Husted, Slip Opinion No. 2015-Ohio-3948.

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