State ex rel. Lorain Cty. Democratic Party Executive Commt. v. LaRose (Slip Opinion)State ex rel. Lorain Cty. Democratic Party Executive Commt. v. LaRose (Slip Opinion)
Per Curiam.
{¶ 1} In this expedited election case, relator, the Lorain County Democratic Party Executive Committee, seeks a writ of mandamus compelling respondent,
Background
{¶ 2} Sweda has been either a licensed real-estate broker or licensed title agent in Ohio for more than 30 years. In that time, she has not had a license suspended or revoked and had not been disciplined. From February 2019 to December 2020, she served on the Lorain County Board of Commissioners, but she lost her reelection bid. Sweda is a qualified elector in Lorain County. On January 31, 2021, the committee voted to recommend Sweda for appointment to the Lorain County Board of Elections, for a full term commencing March 1, 2021.
{¶ 3} On February 9, while reviewing the board‘s recommendation, LaRose‘s office received a packet of documents in the mail from an anonymous sender. In the secretary‘s view, the documents indicated that Sweda had used her county-commissioner e-mail address to conduct campaign activities. For example, on August 19, 2020, Barb McCann, an account executive at WEOL radio, sent an e-mail to Sweda offering advertising rates for her campaign. Sweda responded the next day, from her county e-mail account, inquiring, “What is the cost for my 15-second video? I am interested in doing the 10 week schedule.” Sweda e-mailed McCann two more times that day to discuss campaign advertising, asking in the second message, “Do you want to draft the agreement?”
{¶ 4} The packet also contained examples of Sweda using her county e-mail address to engage in political activity that was not directly related to her campaign. Among these was an e-mail announcement for a fundraising event in support of Zach Stepp, a candidate for state representative, that was sent to ssweda@loraincounty.us on January 19, 2020. One could conclude from the e-mail chain that Sweda replied from that same account, “Please rsvp for me!” The e-mail address also appears on a message Sweda sent to offer campaign signs and to praise a volunteer and thank those who were “pulling together to turn Lorain County dark blue in November!!!”
{¶ 6} LaRose also found an October 2, 2020 article in the Chronicle-Telegram newspaper that reported the allegations against Sweda and her response.
Sweda said she didn‘t originate any of the emails provided to the newspaper. Since the issue came up, she has taken steps to change how she handles email to keep a line of separation, she said.
“Since I‘ve been working remotely, I have seven emails that go into my phone,” she said. “I‘m astute about returning emails quickly and promptly.”
* * *
“My error was, in my haste to respond quickly, I did not go to the screen where it pops out” each individual email account, Sweda said. “It‘s a handful of emails . . . There were no county secrets divulged to anybody and given a COVID environment, I‘d be surprised if it wasn‘t even more of a problem (for others working remotely).”
After the issue was realized, Sweda said she has taken additional precautions to not use her county email for campaign or personal purposes.
She “circulated immediately” a message to all the contacts who reach out to her through her county email, explaining that her
county email is not to be used to contact her for any private issues, Sweda said. “I respond a little slower now and I take double precautions so I‘m sure I‘m not responding through an improper one,” she said.
{¶ 7} Finally, LaRose received an e-mail message from someone identifying himself as “John Gall.” Gall expressed alarm about Sweda‘s use of her county e-mail and other rumors he had heard.
{¶ 8} On March 3, 2021, LaRose rejected the committee‘s recommendation. Based on “all the information available to him,” LaRose concluded that Sweda had not demonstrated “the judgment or adequate level of integrity necessary to ensure voter confidence.” His written rejection specifically mentioned Sweda‘s use of her official Lorain County e-mail account in furtherance of her bid for reelection as well as allegations that she may have directed subordinates to directly or indirectly campaign for her while on county time.
{¶ 9} On March 12, 2021, the committee commenced this expedited action for a writ of mandamus.
Analysis
{¶ 10} Each county in Ohio has a board of elections consisting of four qualified electors from that county.
{¶ 11} Although the secretary of state has the power of appointment, the county executive committees for the two political parties are permitted to recommend qualified electors for appointment.
{¶ 12} When the secretary refuses to appoint an elector recommended by a county executive committee, the committee has a choice: it may either recommend another elector or it may seek a writ of mandamus in this court to compel the secretary to appoint the committee‘s first recommendation.
{¶ 13} In order to prevail, the committee must establish, by clear and convincing evidence, a clear legal right to have Sweda appointed to the board and a clear duty on the part of LaRose to do so.1 State ex rel. Waters v. Spaeth, 131 Ohio St.3d 55, 2012-Ohio-69, 960 N.E.2d 452, ¶ 6.
{¶ 14} It is an abuse of discretion for the secretary to reject a recommendation based on rumors and suspicion. State ex rel. Cuyahoga Cty. Republican Party Executive Commt. v. Taft, 67 Ohio St.3d 1, 2, 615 N.E.2d 615 (1993). The committee contends that LaRose acted wholly on the basis of rumor, innuendo, and hearsay and therefore that his decision was illegitimate.
{¶ 16} But the issue in Citizens for Responsible Green Govt. was whether hearsay evidence was admissible in a court proceeding. Although the secretary must have a factual basis for rejecting a recommended appointee, we have never held that he may consider only material that would be admissible under the Rules of Evidence. To the contrary, in State ex rel. Lawrence Cty. Republican Party Executive Commt. v. Brunner, 119 Ohio St.3d 92, 2008-Ohio-3753, 892 N.E.2d 428, we accepted the content of a local newspaper article as a valid piece of evidence for the secretary to use in reaching a decision. Id. at ¶ 8.
{¶ 17} Next the committee asserts that even if the article is valid evidence, the article actually exonerates Sweda because
{¶ 18} With respect to the e-mail chains that the secretary considered, the committee characterizes them as rumor and innuendo because they were sent to the secretary by an anonymous person. The fact that the sender‘s identity and motives are unknown might affect the weight that the secretary, in his discretion, gives to the
{¶ 19} The committee admits that one e-mail thread, the discussion with Barb McCann about radio advertisements, came from Sweda‘s county e-mail address but insists that the source of the remaining messages cannot be determined. Indeed, there are e-mails in the packet that show the sender only as “Sharon Sweda” without indicating the e-mail address she was using. But many of the e-mails do indicate on their face that they originated from Sweda‘s county account.
{¶ 20} We hold, based on the e-mails and the newspaper account of Sweda‘s statements, that the committee has failed to prove that LaRose abused his discretion when he rejected the committee‘s recommendation.2 We reject the committee‘s comparison of this case to State ex rel. Cuyahoga County Republican Party Executive Commt. v. Taft, 67 Ohio St.3d 1, 615 N.E.2d 615, in which we granted a writ of mandamus because the secretary rejected an appointee based on rumors and accusations that he had violated campaign-finance laws. In Taft, the secretary relied on an article that accused the appointee of wrongful conduct, whereas LaRose is relying on an article in which Sweda tacitly admits the wrongful conduct.
{¶ 21} In addition, we note that
Conclusion
{¶ 22} For the reasons discussed above, we deny the request for a writ of mandamus.
Writ denied.
O‘CONNOR, C.J., and KENNEDY, STEWART, and BRUNNER, JJ., concur.
FISCHER and DEWINE, JJ., concur in judgment only.
DONNELLY, J., dissents, with an opinion.
DONNELLY, J., dissenting.
{¶ 23} Pursuant to
{¶ 24} In this case, respondent, Secretary of State Frank LaRose, rejected relator Lorain County Democratic Party Executive Committee‘s recommendation for Sharon Sweda to serve on the Lorain County Board of Elections after receiving (1) a packet of unauthenticated documents sent anonymously showing Sweda‘s
R.C. 3501.07 requires a reasonable belief that a person is incompetent to serve on the elections board. State ex rel. Summit Cty. Republican Party Executive Commt. v. Brunner, 118 Ohio St.3d 515, 2008-Ohio-2824, 890 N.E.2d 888, ¶ 78 (Cupp, J., concurring). It is an abuse of discretion for the secretary to reject a recommendation based on rumors and suspicion. State ex rel. Cuyahoga Cty. Democratic Party Executive Commt. v. Taft, 67 Ohio St.3d 1, 2, 615 N.E.2d 615 (1993).
(Emphasis sic.) State ex rel. Lucas Cty. Republican Party Executive Commt. v. Husted, 144 Ohio St.3d 352, 2015-Ohio-3948, 43 N.E.3d 411, ¶ 27.
{¶ 25} Contrary to that case authority, today‘s opinion upholds the secretary‘s decision based on unadulterated rumor and suspicion. And contrary to what is stated in today‘s opinion, Sweda did not admit to intentional wrongdoing
{¶ 26} Because the secretary‘s reasons do not withstand factual scrutiny, the secretary had no legitimate reason to reject the recommendation. Rejecting the recommendation for no legitimate reason is an abuse of discretion. I dissent, and I would grant the requested writ of mandamus.