Thursday, June 04, 2009

Brunner rejects LCRP request to change Board of Elections members

I've previously written about the request made to Ohio's Secretary of State by the Lucas County Republican Party Executive Committee to remove Patrick Kriner from the Board of Elections and replace him with LCRP Chairman Jon Stainbrook.

Here is her response:

Jennifer Brunner
Ohio Secretary of State
TEL: 1-877-767-6446 FAX: 1-6 1 4-644-O649

June 3,2009
Via U.S. Mail & E-mail (
Hans Schnapp
Secretary, Lucas County Republican Party
10 S. Superior
Toledo, Ohio 43604

Re: Appointment of Patrick Kriner

Dear Mr. Schnapp:

This letter is in response to your letter of May 29, 2009, sent by you in your capacity as Secretary to the Lucas County Republican Party Executive Committee, and received by this office on June 2, 2009. In your letter, you request that I "appoint Jon Stainbrook to the vacant position as a member of the Lucas County Board of Elections * * * by the close of business on June 3, 2009." You enclosed with your letter a completed Form No. 301 (Recommendation for Unexpired Term Appointment of Member of Board of Elections) and Form No. 302 (Questionnaire for Prospective Appointment as a Member of the Lucas County Board of Elections).

This office has not received a resignation letter from Mr. Kriner or any other documentation of a vacancy on the Lucas County Board of Elections. R.C.3501.07 provides that the executive committee of a county party may meet and recommend a qualified elector to serve on the board of elections within fifteen days after a vacancy occurs on the board.' Because no vacancy existed when the party met on May 28, 2009 and recommended Mr. Stainbrook to serve on the board, the party's recommendation is premature and must be rejected as a matter of law.

The records of this office reflect that, on January 19, 2008, the Lucas County Republican Party Executive Committee recommended the re-appointment of Patrick Ki'iner to a full term on the Lucas County Board of Elections. In accordance with this recommendation and with the appointment procedure established in RC.3501.07,1 appointed Mr. Kriner to serve a four-year term on the board beginning March 1, 2008. The forms filed by die Lucas County Republican Party Executive Committee with this office in connection with the recommendation of Mr. Kriner were, on their face, proper, and I was not aware of any facts that brought Mr. Kriner's competence into question. For the past sixteen months since the filing of the recommendation, neither you nor anyone else has raised with this office any concerns regarding either the process by which Mr. Kriner received the party's recommendation for the appointment or Mr. Kriner's service on the board.

It appears from reading the January 20, 2008 Toledo Blade article included with your letter that Mr. Stainbrook may have contemporaneously raised with the party an objection to the party's recommendation process. However, to my knowledge, Mr. Stainbrook did not, prior to the date of Mr. Kriner's appointment, raise an objection with this office or seek from the Lucas County Court of Common Pleas injunctive relief to enforce Ohio's Open Meetings Act as authorized by R.C.121.22(I).2

As Secretary of State, I do have the authority to remove members of boards of elections, including Mr. Kriner, for "neglect of duty, malfeasance, misfeasance, or nonfeasance in office, for any willful violation of Title XXXV of the Revised Code, or for any other good and sufficient cause. * * R.C.3501.16. You assert that the process by which the party recommended Mr. Kriner for the appointment violated the Open Meetings Act and that this is "good and sufficient cause" for me to remove him from the board. The Revised Code does not, however, vest in me the authority to adjudicate legal issues arising under the Open Meetings Act. Nor has Mr. Kriner had the opportunity to present any facts or arguments that he might wish to be considered concerning the issues you raise.

Even assuming, arguendo, that errors or irregularities occurred during the party's January 2008 recommendation process in violation of Ohio's Sunshine Laws, Mr. Kriner is, at a minimum, a de facto member of the Lucas County Board of Elections. Moreover, because Mr. Kriner held the position on the board prior to the recommendation process in question, Ohio law requires that Mr. Kriner continue to serve until a successor has been duly appointed. R.C.3.01.3

For the reasons stated herein, and in the absence of a judicial determination to the contrary, I decline at this time to remove Mr. Kriner from the Lucas County Board of Elections. Unless and until a vacancy occurs on the board, I cannot appoint Mr. Stainbrook to a position on the board as you request.

Sincerely yours,

Jennifer Brunner

1 R.C.3501.07 states:
[a]t a meeting held * * * within fifteen days after a vacancy occurs in the board, the county executive committee of the major political party entitled to the appointment may make and file a recommendation with the secretary of state for the appointment of a qualified elector. The secretary of state shall appoint such elector, unless he has reason to believe that the elector would not be a competent member of such board. * * *If no such recommendation is made, the secretary of state shall make the appointment. (Emphasis added.)

2R.C.i2i.22(I) provides as follows:
[a]ny person may bring an action to enforce this section [Ohio's Open Meetings Act]. An action under division (I)(i) of this section shall be brought within two years after the date of the alleged violation or threatened violation. Upon proof of a violation or threatened violation of this section in an action brought by any person, the court of common pleas shall issue an injunction to compel the members of the public body to comply with its provisions.

3 "A person holding an office of public trust shall continue therein until his successor is elected or appointed and qualified, unless otherwise provided in the constitution or laws of this state."

(cross posted on Eye On Toledo page)

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