Dayton City Charter Changes 2014- issues 13, 14, 15, 16

Finding the summary put out by the city of these charter changes is pretty easy- although it’s not in HTML format- just a PDF:

http://cityofdayton.org/cco/Documents/November2014CharterSummary.pdf

The summary makes it all seem nice and easy.

The current Dayton Charter is here: http://www.daytonohio.gov/cco/Documents/DaytonCityCharter.pdf but not accessible to me at this time (luckily I already had a copy of the charter).

However, the ballot language is a mangled mess- and not easily available. Several people have contacted me already to ask “what is this all about.” I attended one of the meetings of the committee, which was handpicked by the powers that be- to be as non-representative of the citizens of Dayton as possible. Looking around the room, you’d think the unions run the city (they still think they do- hand in hand with the politicos).

If you go here: http://www.voterfind.com/montgomeryoh/ballotlist.aspx the BOE will let you look at a sample ballot in advance.

The language is overly verbose- and not accessible to copy and paste easily into this site. Issue by issue- here is the synopsis.

Issue 13 should be voted for. It changes the requirements for number of signatures required to propose changes or overturn votes by the city commission to a reasonable number. The existing charter language depended on a percentage of registered voters- which had zero connection to the numbers of existing voters- setting the bar too high to be attainable.

Once issue 13 is passed, we, the voters, may be able to change the requirements for recalling commissioners or the required numbers of signatures on obsolete petitions- something this committee refused to address.

Issue 14 should be voted for. The Dayton budget and compensation rules are arcane and obtuse. Not that a ton of progress is being made in the way we spend and track our money (we had an employee in the law department stealing considerable sums despite our current rules).

Issue 15 should be voted for. The current charter has a bunch of really antiquated rules- that need to go. This issue takes care of that.

Issue 16 is the one where we should really look twice.

Currently section 2 of the Charter is short and sweet:

Sec. 2. [Enumeration of Powers.]
The enumeration of particular powers by this Charter shall not be held or deemed to be exclusive, but, in addition to the powers enumerated herein, implied thereby or appropriate to the exercise thereof, the city shall have, and may exercise, all other powers which, under the constitution and laws of Ohio, it would be competent for this Charter specifically to enumerate.

They want to change it to:

Sec. 2 Powers of the City
The city shall have all powers of local self-government possible for a city to have under the constitution and laws of the state of Ohio as fully and completely as though they were specifically enumerated in this Charter.
A. The powers of the city under this Charter shall be construed liberally in favor of the city, and the specific mention of particular powers in the Charter shall not be construed as limiting in any way the general power granted in this article.
B. The city may participate by contract or otherwise with any governmental entity of this state or any other state or states of the United States in the performance of any activity which one or more such entities has the authority to undertake.
C. All powers of the city shall be vested in the Commission, except as otherwise provided by law or this Charter, and the Commission shall provide for the exercise thereof and the performance of all duties and obligations imposed on the city by law.
D. The City Manager shall be the chief executive officer of the city, responsible to the Commission for the management of all city affairs placed in the manager’s charge by law or this Charter.
E. The Commission may elect to operate under state municipal law in lieu of the provisions of this Charter or §171 thereof pertaining to limitations on the manner, form, or uses of taxes, fees, assessments, and other revenue sources. However, any such measure shall clearly state this intent, may not be passed by emergency legislation and shall require four votes for passage.
On this one, I’m asking for your help in figuring it out. The city explanation of all this legalese is:
Issue 16: Powers of the City
Dayton is referred to as the first city to adopt the City Manager form of government. The 1914 Charter was new ground and the writers tried to ensure Dayton would have broad powers to serve its citizens. But they could not have guessed what might happen 80, 90, or 100 years later and now Dayton is hampered by that 1914 language. Today, the Ohio General Assembly is making changes in how cities operate and Dayton needs to have all the powers that other cities and villages are given.
This does not change the way the City of Dayton operates. We will still have a City Manager form of government and the members of the Commission will still be elected in the same way and represent the entire city. This is designed to ensure that Dayton has the maximum flexibility to respond to a changing environment.
Dayton has to fight hard to attract businesses, residents and amenities; we can’t afford to have one hand tied behind our back by archaic language. With the serious conversations being held about the State changing municipal income taxes, Dayton has to be able to respond immediately to potentially devastating changes in the law. This Charter change provides us with the same flexibility every other city has. (Section 2)
The line “Dayton has to fight hard to attract businesses, residents and amenities; we can’t afford to have one hand tied behind our back by archaic language.” makes me not want to vote for this change. I’ve already seen how our lovely commission believes it’s ok to hand over millions to a private developer- IRG getting the Emery/UPS building at the airport- which they scrapped and profited from, or the deal to give GE, one of the nation’s largest tax avoidance companies get a 30-year tax abatement in the “name of economic development.”
Since Nan Whaley appointed herself queen, we got shafted with a street light assessment, we voted to make a temporary tax permanent, and we watched property values plummet.
At this point, I’m inclined to vote no. I don’t trust the commission to be allowed to pick and choose which State laws benefit them most (remember, State law is mostly formulated by our Republican leadership these days).
Let’s stick with the Charter we have on this- just to show them they need to do a better job of informing us of proposed changes in advance. So YES, YES, YES, NO is my current suggestion.

 

Dayton Charter review committee: second report

I went to what was to be the last official meeting of the Dayton Charter Review Committee. Former Mayor Richard Clay Dixon was nice enough to recognize me and allow me to participate- at least for a little bit, until the FOP rep decided to be a jerk.

Interestingly- the committee is only working on what it was told to work on by the commission. My questioning of changes needed in the petitions for Commission, with their high propensity for filing failure, were sort of ignored: “that wasn’t on the list.”

Although changes are coming that would make it possible for citizens to finally petition the government to change the charter or to force a vote on commission passed legislation. Currently, it takes 10% of REGISTERED voters to put an initiative on the ballot- which works out to somewhere around 10,000 signatures (Mayor Whaley only had 9,000 votes in the last election as a point of comparison). In the future- 2,500 votes will guarantee an opportunity to get an issue on the ballot.

On those petitions- they will no longer have the “Ward and Precinct” boxes which are on the current petitions- but are tacitly ignored by the Board of Elections- which is odd, because everything else on the form is ironclad required. I’m still not sure if they are going to require notarized signatures of signature gatherers- an absolutely meaningless step that only does one thing- guarantees that last-minute signatures are almost impossible to collect. Having a Notary witness a signature of a petition gatherer has zero relevance over the validity of any of the collected signatures- so what’s the point?

No mention of the elimination of the “Nominating committee” as well. This archaic idea makes zero sense- and was proved to mean nothing when William Pace turned in over 650 legitimate signatures on petitions- but wasn’t allowed on the ballot because he hadn’t signed a clause that he would accept the chance to run. If the nominating committee was “empowered” by the 500+ valid signatures- then they should have been able to pick any qualified candidate they like- regardless of if William had “accepted” the nomination. And besides, no nomination is valid until the “handwriting experts” at the Board of Elections certify a petition- so how can you accept something you aren’t qualified to run for yet?

Apparently- much of the committee’s time was spent arguing over protecting the hiring practices that are in place, with the FOP, IAFF and AFSCME reps all voting to delay the final work of the committee to the commission until they have another meeting- which is scheduled for tomorrow, Monday, Aug. 4, at 3:30.

Generally, the meeting was run by former city Planning Director, Paul Woodie, the go to guy for anyone who wants anything done in Dayton. He left the city to work for Premier Health Network for quite a while- kicking off the changes in the Fairgrounds neighborhood – which is now becoming more UD housing despite promises by the city and MVH for it not to be.  Paul pushed off the discussion of the last issue that the Commission chartered them with investigating- the ability to create townships within the city- a bizarre request, which he claimed would require too much investigation into State law. I can just see it now- as South Park would petition to become a Township- eliminating the city income tax- and expanding our boundaries to include UD- since we already have MVH within our planning district. Another tax free haven… to pretend to be a part of our community like Washington, Miami, Harrison, Butler, etc., townships- where drama and mismanagement are the norm.

I’m posting PDF’s of the documents I picked up. I’m not sure what the city commission will do with these recommendations- or if they even have to abide by them. Our Charter is an antique that’s desperately in need of updating- but, there weren’t very many engaged people in the meeting I sat through- with one exception- one young lady who did want to know why the petitions weren’t part of the discussion (I circulated a proposed redesign of the current petition)  and she also caught a double negative that they were proposing as a change.

If the recommendations all make it to the ballot this fall, it may be possible for us to fix the petition process in the March primary once and for all. They are also setting a ten-year requirement for review- something that is currently missing.

Of course, no changes are being made to the current language for a recall- which requires 25% of the registered voters’ signatures- or 25,000 signatures. Nope, Mayor Nan and Crew likes their cushy safe jobs; too much to risk having to answer to the public.

Typically, the charter has only been revised when the commission has needed to change something like how bonds are handled or taxes raised to keep the city out of trouble. To proactively fix fundamental flaws is a rare occasion. We will see what makes it from this committee onto the ballot soon enough.

The Dayton Charter review committee

Not that anyone cares, but the Dayton City Commission appointed a charter review committee to clean up the City Charter. which is an old and tired document.

I’ve been calling for changes to the recall and charter change requirements for years. Of course, I wasn’t invited to work on the committee.

Here is who the commission appointed:

  • Richard Clay Dixon – Chairperson
  • Jason Antonick
  • Jimmy Calhoun
  • Mike Galbreath
  • Gaye Jordan
  • Marcia Knox
  • John Lumpkin
  • Pat Rickman
  • Greg Scott
  • Manicka Thomas
  • Dave Williamson

They’ve already completed most of their meetings, and a Freedom of Information Act request got me the following minutes: 2014 Charter review committee minutes from which I culled the following:

Meetings are held in the City Manager’s Large Conference Room, Second Floor, City Hall on Thursdays:

  • June 12, 3:30-5:00
  • June 26, 3:30-5:00
  • July 10, 3:30-5:00
  • July 24, 3:30-5:00

and if needed- an additional one Thursday, July 31, 3:30-5:00

I’ll be attempting to visit the final scheduled meeting tomorrow to clarify the following:

4. Change special elections to require 50% of voting.
Members directed that no additional action be taken on this tiem (sic).

Mr. Gray explained that the commission did not expect to put each item up for a separate vote or to put all the items in one package for a single vote. He explained that the commission would welcome suggestions from the committee on how to organize the items into a few ballot issues.

While this is a great start to make changes to the former rules that were based on number of total registered voters, which could exceed the number of residents over the age of 18 due to rules of the Board of Elections- nothing is mentioned about the petitions, their language and the obsolete requirement of having a notary sign off on petitions. I hope to bring this up tomorrow.

They are still planning to discuss language for the following:

  • Ensuring that the City has the power to levy service charges, fees and taxes granted by the state to local governments
  • Permitting the City to levy special assessments using the standard provisions of state law that may change from time to time.
  • Permitting the City to enter into arrangements and contracts with other governments. The absence of this provision in our Charter could be used against us since it is in most city charters.

Considering they just popped the street light assessment on residents without a vote, I would think more people would be upset about additional ways to levy taxes without votes by the public.

Please consider joining me at the meeting on the 24th.

 

 

 

In Dayton, it’s impossible to recall the mayor or commission

Mayor Gary Leitzell brought this up to the commission after I pointed out the problem with the commission. They did nothing. I also suggested changing the petition forms- since we seem to have so many failed applications. They did nothing. Finally- today (after the election fiasco- where nobody voted) they point it out:

Dayton would require 23,403 signatures. That’s because Dayton’s charter language requires approval by 25 percent of registered voters. For context, only 16,137 people voted in Dayton’s race for mayor this month.

via ‘Ford-like’ mayor could be removed in Ohio | www.mydaytondailynews.com.

Of course, there is more to the story (that they don’t tell) in that the Board of Elections will routinely throw out between 12% and 40% of petition signatures turned in because their “graphologists” (handwriting experts, who are generally not accepted in courts of law in the United States) will find fault with the signature, date, address or any of a multitude of reasons.

So, to remove Nan Whaley for acting like Toronto Mayor Rob Ford- who is behaving like a moron, is impossible in Dayton.

It’s part of the reason the commission can hold the public in contempt and do as they please and never have to worry about their jobs.

The solution is to adopt Ohio Revised Code- which bases the number on the actual voters in an election- not the number on the voter rolls. Which if it was based on the election the person was voted in on- means we’d only need about 3,200 signatures to meet the 25% threshold ( to remove Ms. Whaley if we wanted- as compared to about 6,000 to remove sitting Mayor Gary Leitzell who had about 17,000 votes four years ago.

Even the 25% threshold is rather high. ORC makes it 15%

Recall. Certain municipal office holders can be recalled under state law but not state officeholders. A recall under state law requires petition signatures of at least 15 percent of registered voters who cast ballots in the most recent municipal election. The law details the removal and replacement process once sufficient petition signatures are submitted. -ibid

To begin to change the charter only takes 3 commission votes- but if a citizen wants to do it, it takes 10% of the registered voters, which currently means about 12,000+ signatures. This also needs to be addressed.

 

Leitzell calls for opinion on Pace case and charter changes at Commission meeting

I reported last week that the Mayor was asking for discussion about the William Pace case against the Board of Elections and the City of Dayton in the State Supreme Court about his legal right to run as a write in: Leitzell calls for charter change discussion on petitions During today’s commission meeting he brings it up and asks the commission to weigh in publicly on what the direction should be.

Matt Joseph takes the weeny position that this has to be discussed in executive session because it’s a legal matter and the rest, follow suit. Except for Dean Lovelace who asks “is the system broken?” which is funny, because Lovelace was the leading advocate of electing commissioners by district after he had lost twice in general elections. Once he won in a special election to fill the seat that was vacated by Mark Henry, he forgot all about it.

This is not a case where there will be monetary damages against the city. This is one of procedural law, based on if the Charter or Ohio Revised Code takes precedence on the matter of write in candidates. The fact that they didn’t immediately go into executive session shows that the four Democratic commissioners have no interest in doing anything on this case.

As to the petition changes, they can’t take action either, other than to recommend it for consideration by a charter review committee. How hard is it to take a stand?

Apparently, Nan Whaley and Joey Williams need to go check with their benefactors to ask what position to take. When you spend a quarter of a million dollars of Other Peoples Money to get 5000 votes in a special election, you have to check with your bosses.

Leitzell calls for charter change discussion on petitions

Mayor Gary Leitzell in an internal email to the City Manager and the City Commission calls for the city to no longer waste money trying to keep candidates off the ballot:

I have read through the material submitted in the case that William Pace has filed against the Board of Elections. In that case he has named the City of Dayton as a defendant. The Board of Elections was fully responsible for the decision in his situation. As such, I want to go on record stating that the City of Dayton should not spend one dime of public money defending this case against the BOE. I would like to see this as a short discussion item on next Wednesday’s commission meeting.

That being said, I think it is time to make some charter changes regarding the petition process. We need to make the form simpler. A simple sign and print your name, eliminate the requirement of a notary and we need to bring the recall and public petition process in line with the State of Ohio to require 25% of the general electorate based on total votes in the last governor election.

Every election cycle someone takes issue and goes to the courts. This costs time and money for all concerned. Let us take this situation to make some positive changes for the future and simplify things so we no longer have to defend ourselves for misunderstandings that should not be occurring in the first place.

Gary Leitzell

It’s about time this discussion came out. Pace is simply asking for the right to run as a write-in candidate, where he has zero chance of winning. Of course, if he gets that right, the possibility of Leitzell running as a write-in as well may come up (although by being eliminated in the primary, he may be explicitly barred). Would write-in candidates upset the process? Probably not, especially in the no cost barred mayoral race. But, thanks to Leitzell being out of the fall election, he’s able to ask the question which would guarantee voters knowing how Williams and Whaley stand on these long needed changes, possibly becoming a campaign issue.

For the record, these are the minimal changes I asked for in the commission meeting weeks ago- even giving the commission a sample version of a simplified petition. Thank you, Mayor Leitzell.

The new SOP at the BOE and the SOS to hide from the public

Apparently, I did something wrong when I recorded my conversation with Montgomery County Board of Elections director Steve Harsman- because now, I’m getting punished. No matter who I call to talk to, the call gets routed to Harsman. There seems to be a directive against speaking to me. I wasn’t recording the call on Wednesday when I was following up on an email request I sent to Denis Aslinger in campaign finance for a fresh copy of the voter database, but Harsman came online and told me that all my requests had to be via a “formal public records request” and would be handled in the order they are received.

What used to be a same day turn-around is now a several day wait.

This is flagrant politicization of office, discrimination and further indication that Harsman and company are unfit for office.

Ohio doesn’t require that you notify someone that the conversation is being taped- as long as one party knows, it’s legal.

Furthermore, I have multiple sources that confirm that party endorsed candidates’ petitions are checked in advance by BOE employees before turn-in. Had Mr. Pace had the same courtesy, he would have been on the ballot, as would many others before him. It’s time to fully investigate the politicization of the Board of Elections, especially in this nonpartisan election.

If I don’t see a csv file in my email tomorrow, the next step will be evaluated and pursued.

One other note, in public records requests over the William Pace denial from the ballot, an internal email (below) from Kery Gray, who works for the City Commission and is a Nan Whaley campaign minion, clearly shows that Gray knew in advance of my questioning about the lack of an agenda for the illegal BOE meeting where Pace was ruled off the ballot, that Pace had problems:

From:Gray, Kery
Sent:Wednesday, March 13,20131:45 PM
To:Leitzell, Gary; Leitzell, Gary
Cc:’HarsmanS@mcohio.org’
Subject:Dave Esratl Phone Call

At about 8:45, Dave Esrati called and left a message for Mayor Leitzell and I saying “BOE meeting today@ 4:00 they
(BOE) won’t provide agenda.” BOE is Board of Elections.
I returned his call 11:00 ish and left a message as he was out. I also called Steve Harsman who indicated that they had
publicly declared the meeting and produced an agenda, and that he believed Mr. Esrati’s Issue was a dissatisfaction with
the specificity of the agenda.
About 1:00, Mr. Esrati called me back and he said that the City Charter states the City runs its election (which we do by
contracting with BOE) and that the agenda ought to have the results as they are best known on it so that interested
parties could determine If they wanted to attend the meeting. He cannot attend the 4:00 meeting because he is
celebrating his father’s birthday. He indicated that Mr. Harsman said they were doing third counts of signatures; Mr.
Esrati believes that the first and second counts must indicate something and those results should be on the agenda or
available to the public. Mr. Esrati also thought that If the Mayor wants to know the results ahead of time, he should be
able to know them ahead of time.
I agreed to share his thoughts with the Mayor and Mr. Harsman. Between the three of us, I assume that BOE does not
want to present tentative results and the third count is a step in determining the Board’s decision. This is my own
thought, based on what I know about election procedures and is not based on a conversation with Mr. Harsman.
I indicated to Mr. Esratl that if Mr. Harsman provides additional information to Mayor Leitzell and the Mayor shares it
with me, I would share it with him.
Finishing the conversation, Mr. Esrati and I had a brief pleasant conversation about restaurants.
I don’t think there is really anything to do about this. Mr. Esrati seems mostly to be unhappy that the agenda does not
reflect what he thinks it should reflect.
Kery Gray
Executive Assistant to the City Commission
City of Dayton
101 W. Third Street
Second Floor
Dayton, OH 45402

Note, on March 8, 2013 Gray was cc’d on a memo from Law Director Danish to Harsman:

March 8. 2013
Mr. Steven P Harsman. Deputy Director
Board of Elections
14 West Fourth Street
Dayton. OH 45402
RE: Petitions for City of Dayton Candidates
Dear Mr. Harsman.

You requested an opinion March 4. 2013. with regard to petitions for election to the office of
Mayor of the City of Dayton. Specifically, you ask, pursuant to the Dayton Charter, 1) whether a
candidate may notarize the affidavit of a petition circulator and 2) whether a candidate must sign
and accept the candidacy on each petition subm1tted…

There is no requirement that a candidate accept the candidacy as part of the nominating papers. A candidate
is permitted to either file his or her acceptance on n separate instrument with the Board of
Elections or as part of the nominating papers, so long as it is filed timely. Accordingly, it is the
opinion of the Law Department that a candidate is not required to sign and accept the candidacy
on each petition submitted.

Gray was in full knowledge at the time of my call that Pace’s petitions had problems and that there may be good reason for him to attend the meeting of the BOE. Had Gray disclosed this to me, or to the public in general, Pace would have had time to submit his acceptance of candidacy.

The question is, do you want civil servants that actually serve you? Or serve the political system in Montgomery County- dedicated to keeping those in power, in power?

 

 

Court of Appeals smacks down William Pace

In a ten-page decision, the Montgomery County Court of Appeals ruled that based on a 1941 decision, that technicalities take precedent over the will of 650+ registered voters on placing Mr. William Pace on the Dayton City Commission ballot. Voters aren’t supposed to make decisions on who advances to the general election in Montgomery County- the Board of Elections is.

This is a travesty of the Voting Rights Act and makes a mockery of our system of “Free” elections. There are other issues- still unresolved. What about the rights of the nominating committee? Or the fact that if the Board of Elections found the petition insufficient, they were supposed to return it to Mr. Pace. It’s obvious, that they found it insufficient days before his deadline for submitting a signature- and instead, the Board of Elections schemed to make it impossible for Mr. Pace to remedy the one signature issue.

Here is the complete decision as a PDF: Pace Decision 4-2-13

William Pace Trial, part 2.

I attended the second hearing of the Montgomery County Court of Appeals today where there were many questions about “substantial compliance” including the part about “what the certificate of candidacy” actually means.

All of it was horse hockey. Early voting starts tomorrow and the judges were thinking it was too late to put Pace’s name on the ballot. They asked what the credentials of both the candidate and the circulator were, and if a candidate could sign his own petition (no).

After the two lawyers danced around legal precedent and not-knowing what was really going on, I asked if I could approach as a friend of the court and answer some of their questions. I was denied- although during the discussion- I did answer as many of the questions as I could.

A few things about “Substantial compliance”- no one is questioning that Pace had over 500 legitimate signatures, which is substantial compliance considering you only need 50 to run for Congress. Not only that, the Board of Elections took money from Mr. Pace, $45, which should indicate that not only did he wish to be a candidate, that they had accepted his application of candidacy. They further contacted him, asking him how he wanted his name on the ballot, and told him he had over 500 signatures.

The purpose of filing to be a candidate is to let the voters decide who they want to lead them, it’s not up to the Board of Elections to make that decision for the voters.

Not only that, in the “Certificate of Candidacy” part of the form, it clearly says “This petition, if found insufficient, shall be returned to William Pace at his address.” We know that Mr. Harsman at the BOE found the petition to be potentially insufficient days before the deadline for submission of his signature on a certificate of candidacy and did nothing to return the petitions to Mr. Pace.

The form is fundamentally flawed in so many places, that in many instances, filling it out differently has no effect on the candidacy of the petitioner. In fact, since no one knows whether there will be a primary until the petitions are turned in and validated, it’s fundamentally flawed with its dates that are presented to the voters, since they may or may not vote for the candidate in the primary- or the general election and either date could be entered on the first part of the form.

I also believe that this form doesn’t nominate a candidate in any way- it grants a nominating committee the right to place a candidate on the ballot. Therefore, regardless of the actions of Mr. Pace per the petition- the nominating committee is still in existence and valid, having over 650 valid signatures.

If the court of appeals doesn’t rule in Mr. Pace’s favor, this case should be continued and appealed to the next higher level. This is a clear instance of a partisan board of elections interfering with access to the ballot in a non-partisan election, because of a form, designed to keep partisan politics out of the process and let the people decide who shall lead them.

What good are elections if we can only choose between candidates whom the parties select, vet, and verify?

Pace gets his day in court

It was more like a half day, running from 2 p.m. to 4:45. I was a witness, and was ordered to be sequestered for the first hour so as not to hear BOE director Betty Smith’s testimony, so I couldn’t cover the whole thing for you.
I did tape my part of the proceedings and as long as I could stay- which was until 3:50, and will be posting it as a podcast at the end of this post.

Mark Gokavi from the Dayton Daily news was a bit perturbed, getting this assignment dumped on him at the last minute (they do read my site) and wrote a cursory story for tomorrow’s paper:

The Board of Elections ruled March 14 that Pace did not qualify to run for Dayton City Commission on the May 7 ballot because of a problem with his acceptance of candidacy — basically a signature — which had to be filed by March 13, according to Dayton’s city charter.

Steve Harsman, deputy director of the BOE, told the Dayton Daily mews earlier this month that his office received the signed acceptance from Pace via a fax, time-stamped 7:38 p.m. March 13. Pace had learned at 5:45 p.m. that he had not signed the statement on his previously filed petitions. Pace said Thursday he raced down March 13 to add his signature but that doors were locked at the county administration building.

The BOE met the morning of March 14, and Harsman said the body asked for a legal opinion from the city of Dayton’s law director, John Danish. Harsman had said that the BOE had not accepted faxed or e-mailed signatures in the past.

Danish said Pace’s fax was not sufficient.

“Our charter requires a candidate to file an acceptance of the candidacy,” Danish said. “And the word ‘filing,’ I believe under court cases, means physical delivery to a government office, and that a facsimile does not qualify.”

Pace’s attorney, C. Ralph Wilcoxson, questioned BOE Director Betty Smith on Thursday about why she didn’t match Pace’s faxed signature against those on his petitions and she said it was because it was not an original signature in ink. She also said a 2011 Ohio Secretary of State directive prohibits board of elections from pre-checking forms to ensure they satisfy the requirements of law.

Montgomery County Prosecutor’s Office civil attorneys John A. Cumming and Maureen Yuhas argued that Pace didn’t follow the law and making exceptions for candidates could lead to more risk of abuse and favoritism.

The three-judge panel of Judges Jeffrey Froelich, Mike Fain and Jeffrey Welbaum said they would deliberate and have a decision by April 8.

via Court to decide if candidate can appear on Dayton ballot | www.daytondailynews.com.

Fain was the presiding judge, and shocked me when he attempted to swear me in and couldn’t remember the line most kids can recite by heart when playing lawyer “Raise your right hand, do you swear to tell the truth, the whole truth and nothing but the truth so help you God?”- Fain failed- needed prompting from Froelich and myself.
I’ve already posted some of the evidence in this case in prior posts. Unfortunately, we have a legal system, not a justice system, and process can interfere with common sense. The County prosecutors would have lost had there been a jury, with their constant motions and interruptions. Fain often ruled over them, to see where this was going, but their strategy was shaking Pace’s attorney from his game plan.
I don’t know what was discussed while I was in the hall, but, apparently getting testimony from only one source was good enough in some instances (which I found odd).

The key issue of what standing the nominating committee has, may not be included in this decision, thanks to an omission in Pace’s motion. While it may not have been in the brief, this could end up reopening the case again after the ruling. In the meantime, Pace is left without a definitive answer on his candidacy, and the clock to the primary is ticking down. The judges don’t help matters by giving themselves until the “drop dead date” for putting Pace on the ballot, a quicker ruling would be the better option on this time sensitive matter.

The key questions weren’t really discussed while I was in the court room, nor was I questioned properly to get the answers the court needed.

  • The first is why the meeting wasn’t held at its normal Tuesday at 11 a.m. time. I was asked if I knew what a quorum was by an irate Mr. Cumming- to which I gave more of an answer than he wanted by suggesting that the BOE members are paid $20K a year for 24 meetings, (or around $800 a meeting) and there is no excuse for the delay in holding this meeting. Harsman knew well in advance that he could knock Pace off the ballot, by requesting a decision from the law director. This piece of evidence almost didn’t make it into the record, as the prosecutors were trying to claim my publishing of it was just hearsay, despite it being public record.
  • The issue of Harsman evading supplying an agenda, and violating the Sunshine laws wasn’t argued at all, because no one believes the Sunshine Laws mean a damn thing.
  • And lastly, the standing of the nominating committee, who have been properly nominated, should be able to name someone to appear on the ballot, regardless of what the BOE says- since they met the required number of signatures.

Every time I go into a court, I’m reminded of how fragile our legal system is. In the right hands, it can be bent and manipulated into accomplishing almost anything- like getting OJ off. In amateurs’ hands, it’s brutal.

The will of the 500+ voters is the last thing to anyone involved in these proceedings, it’s all about nitpicking and exercising power.

The recording is lame, I did it covertly, but if nothing else, listen to the first minute to judge for yourself if Mike Fain is all there?