A question of law on valid petitions: Should Nan Whaley be on the ballot?

I’ve turned this over to the Dayton Daily News. I don’t know the answer, and don’t expect anything from the very partisan Montgomery County Board of Elections (they’ve split 2-2 on party lines twice in the last two months). I also doubt the city will enforce its own laws against an incumbent.

On Sept. 8, 2009, I posted “Political activity by city employees- could we have a ruling please?” where I posted City Code 2.03 The “Political activities policy” from the City Manager’s Office, issued Dec. 6, 2004. Both Mayor McLin and Joey Williams were on the Commission when this passed. Item 6 was highlighted:

6. No employee shall take any part in political campaign further than to express privately their opinions. Political campaigning includes any overt public expression or activity for or against a political organization or candidate such as a formal public endorsement, acting as a poll worker, circulating nominating petitions, distributing campaign material of any kind. or posting campaign material other than on one’s own person or personal private property.

Some of Commissioner Nan Whaley’s petitions were circulated by Russel M. Joseph and Mary Cunningham, who both show up on the list of City Employees provided to us with a Freedom of Information Act request. They may not be employees who report to the city manager, so this may give them wiggle room. They filed 86 signatures.

The city also says in item 5:

5. No employee shall take part in political management. Political management includes serving as an officer, ward or precinct leader of a political organization, acting as a campaign officer, publishing or editing a newsletter in the interest of a political organization or candidate, or acting as a delegate for a candidate to any nominating convention.

And we find a city employee, Lela Estes as one of Nan’s nominators. Again, wiggle room, Lela does not report to the city manager, she is a paid member of the Civil Service Board. This makes her a direct hire of the City Commission. Is this a conflict?

The most reprehensible part of a cursory examination of the petitions, when compared to the list of city employees are the actions of the Dayton Clerk of Courts, Mark E. Owens- who is also the Chair of the Montgomery County Democratic Party. Mark, apparently circulated Nan’s petition to people on the city payroll, possibly under his direct supervision. While Mark is paid by the city, he is an elected representative and does not fall under the rules of the city manager. However, the Hatch Act specifically bans this type of behavior. Owens would fall under the Hatch Act because part of his funding is probably supported Federally and “An amendment on July 19, 1940, extended coverage to state and local employees whose salaries include any federal funds.”

Last but not least, a majority of her petitions are notarized by either Owens- or an Anita Moneypenny- who does draw a salary from the taxpayers. Is it really the job of government employees to do political work for incumbent politicians, who may influence their careers?

I don’t believe that any government employee should be involved in partisan politics while on the job, or feel intimidated to get involved to be able to maintain his or her job.

There are also some issues with  Mayor McLin’s petitions, circulators, and notary stamps, but, none with the nominating committee. Remember, 11 people turned in petitions to run, and 6 were eliminated on technicalities, however, those who are sworn to uphold the law, may have been the ones who bent it the most.

We’ll wait to see what the Dayton Daily News finds out- and how and if these are more than a moral issue, raised by a challenger.

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4 Responses

  1. Ambrose September 24, 2009 / 10:48 am
    I don’t really have a problem with this as long as the employee does it on their own time. If someone wants to petition for a particular candidate or issue they believe during their personal time, then so be it. If I was a city employee, which I’m not, and wanted to take a 2 week vacation to promote Metro Parks or Gary Leitzell for mayor then I should be allowed to do so because its my time. There shouldn’t be any attempt to regulate what a person chooses to do in their free time. That is where the line is and should be drawn.
  2. KaleF September 24, 2009 / 11:14 am

    #6 sure does sound like it could apply to free time… Because what is to keep one person from “suggesting” things another should be doing in their free time?  And if anyone asks, you are spending your “free time” on this, got it?
    Just the other day, I was wondering why more people aren’t running for office.  Thanks for the reminder of where the others ended up.

  3. Hall September 24, 2009 / 11:43 am
    @Ambrose: The problem isn’t controlling what people do on their own free time, it’s the potential for “influence” and how one’s job might be affected. In the case of the city’s rules, they simply eliminate those possibilities. In the business or corporate world, and presumably government — I assume Dayton isn’t the only gov’t entity with this or similar rules — it’s quite common.
  4. David Esrati September 24, 2009 / 1:42 pm

    Turns out both Russel M. Joseph and Mary Cunningham work for Owens, which stops the city rule from applying. It may not avert Hatch Act issues- depends on funding of muni-court.

    Rules are rules. At least that’s what they tell me when I submit my petitions.

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