Spencer Township trustees in Lucas County improperly declared that a trustee on military leave vacated his office and the trustees then illegally replaced him with an outgoing trustee who lost his re-election bid, the Ohio Supreme Court ruled today.

The Supreme Court unanimously found Spencer Township broke the state law that allows township officers to retain office while on active U.S. military leave when it declared that Shawn Valentine vacated his post. The Court also ruled the trustees violated the Open Meetings Act when appointing D. Hilarion Smith to office.

The per curiam opinion sides with Lucas County Prosecutor Julia Bates who sought to have Smith barred from exercising the powers of the office and receiving compensation, and to have Valentine restored to the position. The Court declared that any official township actions taken by Smith since Jan. 1, 2016 are invalid.

Valentine Deployed While in Office
Valentine was elected to a four-year term as trustee in November 2013, and in the spring of 2015 the Ohio Army National Guard reservist was notified that he would be deployed for active military service, which started in June 2015. Valentine notified fellow trustees Smith and Michael Hood of his deployment and that he did not intend to resign but to maintain the position as provided by R.C. 503.241.

According to the statute, a township officer who is absent from the township for 90 days has vacated the office and can be replaced. However, the law explicitly exempts township officers on active U.S. military leave.

Last-Minute Effort to Stay in Office
In November 2015, Smith lost his re-election bid and his term was scheduled to end on Dec. 31, 2015. At a morning meeting the day before Smith’s term ended, Hood presented a petition from residents requesting that Valentine resign at a trustee meeting. Smith then read into the record three resolutions he intended to present to Bates seeking Valentine’s resignation, inquiring about her opinion on suspending payments to Valentine, and asking her to request official documentation from the federal government regarding Valentine’s length and location of deployment.

The meeting adjourned at 11:15 a.m. without announcement of any emergency or emergency meeting, but later in the day a paper notice was posted on the township hall door for an “emergency meeting” the next morning at 11 a.m. At the meeting, Smith and Hood voted to declare Valentine’s office vacant because he had been gone more than 90 days for “nonmilitary absences,” and the two then appointed Smith to Valentine’s seat.

Valentine, Prosecutor Object to Removal
Valentine was stationed with the U.S. Army at Guantanamo Bay, Cuba when Bates filed a petition for a writ of quo warranto with the Ohio Supreme Court. The writ can be brought by a prosecuting attorney to litigate the right of a person to hold a public office. Bates argued the removal of Valentine violated R.C. 503.241, and the appointment of Smith was invalid because it violated the 24-hour public meeting notice requirement of R.C. 121.22 (F).

The Court found Valentine did not vacate the office and rejected Smith and Hood’s rationale that Valentine did not provide the proper formal notice that he was on military leave.

“This section does not require notice to the township by the active military service member. Nevertheless, the board minutes show that the township trustees knew that Valentine was absent due to active military service,” the opinion states. “Regardless of notice, under R.C. 503.241, Valentine’s office was unlawfully deemed vacant. Smith has usurped the title and authority of the office.”

The Court found that the declaration of vacancy and appointment of Smith have no legal effect because the meeting violated R.C. 121.22, the Open Meetings Act. The Court noted the law prohibits a public body from holding a special meeting unless it gives at least 24 hours of advanced notice to the media except “in the event of an emergency requiring immediate official action.”

Smith and Hood’s notice on the door was less than 24 hours before the meeting. While public bodies have considerable discretion to determine what constitutes an emergency, a public body cannot call an emergency session as a pretext for avoiding public scrutiny of their actions, the Court ruled.

“In this case, the December 30, 2015 trustees meeting ended at 11:15 a.m., with no suggestion in the minutes of any emergency, let alone one that would compel another meeting in less than 24 hours,” the Court wrote.

The Court found Valentine is entitled to exercise the power of the office and receive compensation for it, and the Court charged the costs of the proceeding to Smith and Hood.

2016-0134. State ex rel. Bates v. Smith, Slip Opinion No. 2016-Ohio-5449.

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