OP/ED: Husted must obtain a special prosecutor to investigate Cuyahoga County’s election board
Records destroyed, laws violated, officials holding office illegally, conflicted political relationships between courts and prosecutor's office
CLEVELAND, OH – Employees at the Cuyahoga County Board of Elections (BOE) are speculating that board chair Inajo Davis Chappell and director Pat McDonald won’t enforce election laws against the elected officials who failed to deliver campaign finance reports on time. The employees think too many politicians could face prosecution, be kept off the ballot or removed from office.
“They’re going to give them a waiver,” said one employee on condition of anonymity. ”There’s too many politicians who broke the law for the board to go after them all.”
Cleveland Challenger stopped counting when it randomly reviewed 60 campaign finance reports on the election board’s website and found 37 violators of ORC 3517.10 and 3517.11(D), both first degree misdemeanors that come with a mandatory forfeiture of office.
A ranking Democratic official told this author the party knew that several elected officials were out of compliance, but weren’t expecting the media or public to learn about it. The violations in the past have been handled “quietly.” Even the Plain Dealer has unwittingly encouraged the law breaking by sharing misleading news stories that praise incompetent and non-compliant officials like ex-director Jane Platten for jobs “well done.”
The ease in which elected and appointed officials ignore duties imposed upon the public offices they hold is inherent in the election board employee wrongfully believing the “bosses” had the authority to waive a law. It’s the reason Ohio Secretary of State Jon Husted has no choice but to obtain a special prosecutor to investigate the board, its employees and their relationship with elected officials who’ve performed the duties of elected and appointed offices illegally. His visit must also be backed up with one by Auditor of State David Yost.
Platten now works for Cuyahoga County Prosecutor Timothy McGinty as his $130,000 a year chief of staff. McGinty was appointed last year by campaign finance report violator Ed Fitzgerald, the county executive. Under Platten, as director, Fitzgerald never complied with ORC 3517.10 and 3517.11(d) in the manner specified by law when he campaigned for council, mayor and county executive. The incestuousness of the relationships between the law breaking public officials is the reason Husted – in his official capacity as secretary of state – must act.
Ohio’s general assembly discussed and approved general election laws to provide a mechanism for conducting elections. Election board officials were told to use forms and rules as provided by the secretary of state, and to comply with Title 35. The “discretionary authority” they were given was limited. The use of the word “shall” exists throughout Title 35 whereas the use of the word “may” is virtually non-existent in any statute.
State senators and representatives established stiff criminal penalties for violating Ohio’s election laws, giving local prosecutors the duty to enforce them. The collusive nature between the prosecutor’s office under William D. Mason and now McGinty made enforcement and accountability impossible. Mason was too busy signing up the elected officials he was supposed to hold accountable as customers for his political consulting company. None of his “clients” feared he’d ever enforce election laws against them. The “enforcer’s” greed co-opted him. McGinty’s too connected to the Mason-machine and the violators to be objective.
Since Mason and his clients dominate Cuyahoga County politics, as their corrupt machine has continued unabated under Fitzgerald, the courts, the prosecutor’s office and agency’s like the elections board and others, the idea of accountability is just that … an idea. Despite U.S. Attorney Steve Dettelbach’s Bloomberg quote that corruption is over in Cuyahoga County, nothing is furthest from the truth. A mob-like machine controls Cuyahoga County politics.
The reality is that Ohio’s election laws have been ignored, twisted and perverted by Platten and the board who were being paid to enforce them. Their only focus was to advance their own personal or political party interests and to protect each other; not the interests of the voters. Husted and Yost have got to step up.
Title 35 of Ohio’s Revised Code should be etched into the brain of every public official and employee who receives public funds to perform official election duties. There isn’t a single board member, director or administrator who shouldn’t be able to cite sections of Title 35 by number, heading and content.
Why isn’t that level of institutional and shared knowledge for pervasive inside the elections board? It’s as if public officials are kept intentionally stupid, powerless and fearful so they can be better controlled.
Election laws aren’t rocket science. Ohio’s Secretary of State has determined that the least level of acceptable education for an election board director is the equivalent of a high school education. The college-educated Platten couldn’t get it right for $120,000 a year.
The idea that a public employee would raise the issue of a non-existent authority to waive laws is troublesome. Not even Cuyahoga County’s Court of Common Pleas or Appeals can waive the state’s election laws. This is particularly true in a county with judges who are so conflicted with their own failure to comply with the state’s election laws, or failure to report their colleagues to the Supreme Court of Ohio in accordance with the Code of Judicial Conduct, that no decision they make relative to the board of elections can be trusted.
No fewer than seven judges, Fitzgerald, the county council president, mayors and dozens of councilors and school board members failed to comply with Section 3517.11(d) of Ohio’s revised code. All began performing the duties of the elected office before turning in campaign finance reports.
The reports were due no later than 4 p.m. 12 days before and 38 days after every election according to ORC 3517.10. The only extension was granted in 3517.11(C) if board employees sent certified letters to the candidates immediately after the election to let them know their campaign finance reports were less than 90 percent inaccurate or inadequate.
If the elected official received a certified letter they were given 21 days to “completely comply.” Failing to do that kicked in ORC 3517.11(D), which warned winning candidates not to take office and begin performing its duties.
The board was supposed to get each candidate or elected officials’ signature on a statement indicating that they knew the requirements of the two sections above. Nothing in the 60 campaign finance reports this author reviewed online included the signed statement. Certificates of nomination and election were noticeably absent, as were the mandatory referrals that should have been generated to the Ohio Elections Commission, prosecutor or Secretary of State for those submitting so-called “amended” reports.
For every document that doesn’t exist in each campaign finance report on forms prescribed by the secretary of state, and for every certified letter that was not mailed, the election official who failed to get the signature or deliver the letter violated Title 35; a first degree misdemeanor.
The state’s courts, particularly the Supreme Court of Ohio, has clearly imposed the duty on election officials to strictly enforce the mandates of Title 35 without interpretation or deviation. Section 3501.11 couldn’t make the limits the General Assembly intended for election officials any clearer than in the first sentence under chapter heading, “Board duties.”
“Each board of elections shall exercise by a majority vote all powers granted to the board by Title XXXV of the Revised Code, shall perform all the duties imposed by law …”
The state’s senators and representatives then added 27 specific duties for election board officials to perform. Among them are four sections of ORC 3501.11 that reiterate the first sentence.
(E) Make and issue rules and instructions, not inconsistent with law or the rules, directives, or advisories issued by the secretary of state, as it considers necessary for the guidance of election officers and voters.
(J) Investigate irregularities, nonperformance of duties, or violations of Title XXXV of the Revised Code by election officers and other persons; administer oaths, issue subpoenas, summon witnesses, and compel the production of books, papers, records, and other evidence in connection with any such investigation; and report the facts to the prosecuting attorney or the secretary of state.
(P) Perform other duties as prescribed by law or the rules, directives, or advisories of the secretary of state.
(R) Administer oaths in matters pertaining to the administration of the election laws.
The only problem with ORC 3501.11(J) above, at least in Cuyahoga County, is that it gives the board the option of investigating violations of Title 35 and reporting the facts to the prosecuting attorney or secretary of state. McGinty is too connected to the offending players, and is a potential violator himself with the $40,000 in unpaid loans he got from six donors, for his role as an oversight authority to be trusted.
So the solution to Cuyahoga County’s election problem rests with Husted and Yost, not the locals. And they need to act fast because several primary and general elections have filing deadlines coming up soon.
There are very clearly many elected officials whose failure to file any report and taking office disqualifies them from seeking a spot on the ballot, and also qualifies them for dereliction, obstruction and theft in office prosecutions. They are among the worst of the offenders because some should have been disqualified from advancing from the primary election to the general election because of their previous non-compliance.
Another group includes those who filed but took office in violation of ORC 3517.11(D). Both groups of offenders raise the legal question as to whether the decisions they made while illegally holding elected office were valid. That’s what worries Fitzgerald, mayors, judges, councilors and school board members throughout the county.
The citizens of the communities whose public offices they usurped have been most harmed by their actions. If they demand blood from Husted, Yost and a special prosecutor, there’s a second wave of politicians tied to a tsunami of corruption that makes Dettelbach’s prosecutions of Jimmy Dimora and Frank Russo look like a grain of sand on a beach.