{¶ 2} The facts are as follows: The respondent village of Sabina is a municipal corporation duly organized under Ohio law.1 Its legislative authority consists of six elected council members and a mayor. Council members for Sabina receive a salary for their positions.
{¶ 3} On September 9, 2002, council member Darrell Nolley submitted a written resignation to the mayor and remaining council members. The next scheduled council meeting on September 12, 2002 was attended by four of the remaining five council members, along with the mayor. At that meeting, council voted unanimously to accept Nolley's resignation.
{¶ 4} At this same council meeting and after the resignation process was complete, council member Sally Kress moved to nominate relator, who lives with Kress, to fill the vacant seat for the remainder of Nolley's term. Relator had served two previous four-year terms on council between 1994 and 2001. Relator also possessed a 1964 Warren County, Ohio felony conviction for Possession of Obscene Literature in violation of then R.C.
{¶ 5} Kress' motion to nominate relator was seconded. The vote of the four attending council members resulted in a tie. Once the tie was declared, the mayor then cast the deciding vote in favor of appointing relator to fill the vacancy. The council meeting was temporarily suspended as relator was sworn in and took his seat on council. Thereafter, the meeting resumed and relator participated as a member of council for the duration of the meeting.
{¶ 6} At the next scheduled council meeting on September 26, 2002, the council member absent from the previous meeting, Peggy Sloan, moved for a reconsideration of the September 12, 2002 vote appointing relator. The motion was seconded and, with relator abstaining, the five remaining council members voted three to two in favor of the motion, resulting in relator's removal from council and creating a new vacancy.
{¶ 7} On October 7, 2002, council called a special meeting, attended by three of the five active council members. At that meeting, council appointed respondent Curtis to fill the vacancy for the remainder of Nolley's term. Curtis continues presently in that capacity.
{¶ 8} On October 17, 2002, relator filed this action in quo warranto. In his complaint, relator prays this court to remove Curtis from his current position as a member of village council and restore relator to that position. Respondents filed an answer on November 20, 2002 raising various defenses. The parties thereafter took depositions of witnesses, arrived at a stipulation of facts and submitted briefs.
{¶ 9} The cause is now before this court for decision. Additional facts are discussed below as they become pertinent.
{¶ 10} A writ of quo warranto is "a high prerogative writ and is granted, as an extraordinary remedy, where the legal right to hold an office is successfully challenged." State ex rel. Battin v. Bush (1988),
{¶ 11} If a relator is unable to prove entitlement to the disputed office, judgment may still be rendered on the remaining issue of whether the respondent lawfully holds the office. State ex rel. Myers v. Brown,
{¶ 12} In his filings, relator asserts he was properly appointed to council on September 12, 2002 and improperly ousted from council on September 26, 2002. Therefore, we begin with an examination of the general procedures used to appoint and oust relator for the contested term.2
{¶ 13} When a vacancy occurs on village council, R.C.
{¶ 14} To be considered for a position on village council, a prospective candidate must meet the qualifications described in R.C.
{¶ 15} It appears from the stipulated facts that relator's appointment to council on September 12, 2002 facially met the above statutory requirements. Respondents concede in their brief that relator met the R.C.
{¶ 16} Once properly appointed or elected, Ohio law provides several possible ways a village council member may be ousted from office. For example, R.C.
{¶ 17} As mentioned above, the record in this case shows that after the resignation of Nolley, four of the five remaining council members, along with the mayor, participated in the election of relator to council. At the next regularly scheduled council meeting, with all members present, the council member absent from the prior meeting moved for rеconsideration of the vote electing relator, stating "it was done kind of quickly" and that council by law had up to thirty days to elect a new member.3 The motion was seconded. Council voted three to two, with relator abstaining, to reconsider the vote electing relator. As a result of this vote, relator was removed as council member and a vacancy was declared.
{¶ 18} On October 7, 2002, a special meeting of council was called with three members attending. The participating members then elected respondent Curtis to council. Curtis presently continues in that capacity.
{¶ 19} We can find no Ohio law authorizing the proсedure used herein to remove relator for the reasons articulated by council. Respondents have likewise cited no such supporting authority. However, the Ohio Supreme Court did consider the ability of a city council to rescind or reconsider a completed vote filling a vacancy for the office of city clerk in State ex rel. Calderwood v. Miller (1900),
{¶ 20} In their brief, respondents mention R.C.
{¶ 21} Our inquiry, however, does not end here. Respondents raise two specific challenges to the validity of relator's appointment to council. First, respondents assert that council member Kress' nomination and vote to appoint relator on September 12, 2002 was invalid. Second, respondents assert that relator is incompetent to serve in office.
{¶ 22} Regarding the first challenge, respondents submit that relator's September 12, 2002 election to council was invalid because Kress could not lawfully nominate or vote for relator. Respondents state Kress' relationship with relator created an impermissible conflict of interest for Kress amounting to criminal violations of R.C.
{¶ 23} R.C.
{¶ 24} R.C.
{¶ 25} The depositions of Kress and relator describe relator as a 73-year-old man living with Kress in a platonic relationship in a house owned by Kress. Kress testified she does not charge relator rent, but that relator does pay some of the utility bills and has paid the real estate taxes "once or twice." Kress testified thаt the pay for being a village council member is about $78 a month after taxes. We find no contradictory evidence in the depositions or stipulated facts.
{¶ 26} We note that there is no evidence in the record of any filed indictment or complaint, let alone a conviction, relating to Kress' actions in nominating or voting for relator. R.C.
{¶ 27} While an ethics commission considers the matter, the accused has statutory rights relating to notice, representation by counsel, subpoenas, examination and cross-examination of witnesses, and production of evidence. If the matter is referred to the prosecutor, the matter proceeds like other criminal prosecutions and provides an accused with the full litany of criminal protections afforded under Ohio and federal law.
{¶ 28} Based on the available record before us and in the context of a quo warranto action, we decline to make a finding of criminal wrongdoing by Kress absent any investigation or indictment through statutorily available avenues. We note that Kress is not even a party in this proceeding. Certainly, the mechanism to fully defend (or prosecute, for that matter) the allegations is not present in this quo warranto action.
{¶ 29} Additionally, it appears that even if we were to find a criminal violation by Kress in this quo warranto action based on the available facts, we could not reach the remedy respondents request. Respondents urge us to find that because of the allegеd criminal conduct, Kress' nomination and vote for relator were void and that relator was never legally on council at all.
{¶ 30} The Sixth District Court of Appeals considered a related argument in Mather v. Springfield Township (May 19, 1995), Lucas App. No. L-94-196. Mather involved an appeal of a common pleas court ruling affirming an administrative decision to approve a zoning change. The appellant therein contended the participating chairman of the zoning commission, one of the agencies involved in the administrative process, had a conflict of interest amounting to a violation of R.C.
{¶ 31} Similarly, the Eleventh District Court of Appeals considered a taxpayer appeal following an unsuccessful attempt to enjoin the adoption and enforcement of a new ordinance that increased pay levels for city officials. City of Warren ex rel. Bluedorn v. Hicks (1997),
{¶ 32} We see no reason why these cases would not be equally applicable to alleged violations of R.C.
{¶ 33} Respondents next challenge relator's claimed right to hold office due to relator's 1964 felony conviction. Section
{¶ 34} In addition to the curative avenues expressly available in R.C.
{¶ 35} In this case, relator served to completion two prior four-year terms of office on council between 1994 and 2001 with his prior felony conviction. The existence of this conviction was apparently no secret to council. Relator describes the issue as being discussed in an open council meeting in 1995. As a result, the then-solicitor for the village of Sabina researched the issue and in March 1995 submitted an opinion that relator was legally entitled to hold office.
{¶ 36} There is nothing in the record to suggest any further action taken on the issue by any party until respondents raised it in their November 20, 2002 answer to relator's quo warranto complaint. By this time, council had already appointed and then ousted relator from his latest term in office. On February 14, 2003, while this quo warranto action was pending in this court, relator applied for expungement of his conviction in the Warren County Court of Common Pleas. The court granted relator's application on March 19, 2003.
{¶ 37} As an initial matter, we consider relator's argument that respondents have waived any right to contest relator's competence to hold office because council did not take action to remove relator from office during relator's prior two terms. Generally, a village has home-rule authority to regulate the qualifications of its officers. State PersonnelBoard of Review v. City of Bay Village Civil Service Commission (1986),
{¶ 38} Clearly, the village of Sabina could not enact a local ordinance overriding R.C.
{¶ 39} Ohio follows the general rule for elections that, absent express constitutional or statutory language to the contrary, a disqualification from holding public office does not prevent one from running for the office as a candidate. Fisher v. Brown (1972),
{¶ 40} There is a dearth of cases interpreting just how fast "immediately upon assuming office" must be. However, the Seventh District Court of Appeals did consider the issue in State ex rel. Gains v. Rossi
(Mar. 9, 1999), Mahoning App. No. 98-CA-51, a quo warranto action originating in that court and subsequently appealed on other issues to the Ohio Supreme Court. State ex rel. Gains v. Rossi,
{¶ 41} Gains involved the November 4, 1997 genеral election of Rossi to the village council of Lowellville, Ohio. Rossi had a 1988 federal felony conviction for attempted tax evasion. Rossi assumed office in January 1998. Soon thereafter, the Mahoning County Prosecutor requested an opinion from the Ohio Attorney General concerning Rossi's competence to hold office. The Attorney General issued an opinion on March 4, 1998 advising that a convicted felon, once elected, "is then obligated to remove any disqualification to holding the office." 1998 Ohio Atty.Gen.Ops. No. 98-013, at fn. 3. However, the opinion expressly did not address whether the person may "cure or remove that disqualification subsequent to taking office, and, by doing so, continue to hold office." Id. On March 25, 1998, Rossi filed an application to expunge his felony conviction, which was granted on July 23, 1998.
{¶ 42} The Seventh District recognized that Rossi's delay in addressing his disqualification did not likely meet in strict terms the classic definitions of "immediately," such as "without interval of time: straightaway." Gains at *9. However, the court did find the facts fit a secondary definition, "as soon as," as found in Merriam-Webster's Collegiate Dictionary (1988), 579. Id. In doing so, the court noted, "While we are disturbed that Respondent waited almost three months after taking office to cure his defect in holding that office, we cannot say that this action should turn on a race to see which party files first. Respondent could have acted more responsibly and taken action to remove his disqualification as one of his first actions upon attaining the office he sought. However, as Respondent did act within a reasonably short period to cure his disqualification and given that we understand the time constraints involved in the legal process, we must find that under the facts before us Respondent removed his disqualification in a timely fashion and without unreasonable or unnecessary delay." Id. at *10.
{¶ 43} Since the word "immediately" as used by the Ohio Supreme Court in Vana is not defined by statutе or by the decision itself, we must apply the word's usual, normal or customary meaning unless the word has in some way acquired a technical or particular meaning. Chari v.Vore,
{¶ 44} In further interpreting Vana's "immediately upon assuming office" language, we must also look at the context of the particular case. Here, in order for relator to remove his disability to hold office, he needed to receive an order from the Warren County Court of Common Pleas sealing the felony conviction pursuant to R.C.
{¶ 45} "(a) Determine whether the applicant is a first offender or whether the forfeiture of bail was agreed tо by the applicant and the prosecutor in the case. If the applicant applies as a first offender pursuant to division (A)(1) of this section and has two or three convictions that result from the same indictment, information, or complaint, from the same plea of guilty, or from the same official proceeding and result from related criminal acts that were committed within a three-month period but do not result from the same act or from offense committed at the same time, in making its determination under this division, the court initially shall determine whether it is not in the public interest for the two or three convictions to be counted as one conviction. If the court determines that it is not in the public interest for the two or three convictions to be counted as one conviction, the court shall determine that the applicant is not a first offender; if the court does not make that determination, the court shall determine that the offender is a first offender.
{¶ 46} "(b) Determine whether criminal proceedings are pending against the applicant;
{¶ 47} "(c) If the applicant is a first offender who applies pursuant to division (A)(1) of this section, determine whether the applicant has been rehabilitated to the satisfaction of the court;
{¶ 48} "(d) If the prosecutor has filed an objection in accordance with division (B) of this section, consider the reasons against granting the application specified by the prosecutor in the objection;
{¶ 49} "(e) Weigh the interests of the applicant in having the records pertaining to the applicant's conviction sealed against the legitimate needs, if any, of the government to maintain those records."
{¶ 50} To assist the court obtaining the information necessary to make the R.C.
{¶ 51} It would be unrealistic to presume this process could be accomplished the instant relator assumed office on September 12, 2002. Nor does the language in Vana appear to require this. The Ohio Supreme Court did not hold that the disqualification be removed by the time the candidate assumes office, but rather be removed "immediately upon assuming office." Vana,
{¶ 52} The facts of this case establish the Warren County Court of Common Pleas issued an order expunging relator's felony conviction 33 days after relator filed his initial application. We perceive this to be a reasonably expedient completion of the R.C.
{¶ 53} More troublesome, however, is the added delay caused by relator's belated filing of the initial application. We understand that some amount of time is necessary just to get the application filed. We envision the newly-elected or appointed public officer choosing and then hiring an attorney. After gathering the appropriate information, the attorney must then prepare and file the motion in the proper court of common pleas.
{¶ 54} However, after relator's September 12, 2002 appointment to council and his subsequent removal on September 26, 2002, relator waited until February 14, 2003 to file the initial application for expungement of his felony conviction. The application thus came just over five months after relator's appointment to council. Largely because of this, the resulting order from the court of common pleas came some six months and seven days after relator assumed office.
{¶ 55} We do not believe this is what the Ohio Supreme Court had in mind when it wrote, "immediately upon assuming office." Vana,
{¶ 56} We acknowledge there are unusual facts present in this case that might explain relator's delay in making application for expungement. The former village of Sabina solicitor opined in 1995 that relator was legally qualified for the identical position relator now seeks. No further challenge occurred until respondents raised the issue in their November 20, 2002 answer to relator's complaint in quo warranto. However, because the qualification for public office is a matter of statewide concern, relator's reliance on the former solicitor's opinion cannot nullify the directive of R.C.
{¶ 57} Because the nature of relator's incompetency to hold office stems from the "accomplished fact" of a prior felony conviction, it is unnecessary that a comрlaint and hearing first be held pursuant to R.C.
{¶ 58} We now consider the effect of our holding that relator became incompetent to hold office with our earlier holding that Sabina council improperly rescinded its initial vote appointing relator to council. Although relator forfeited by law the right to hold office prior to the March 19, 2003 order sealing the record of his conviction, he still validly occupied the position subsequent to assuming office on September 12, 2002 for the reasonable period of time necessary to remove the disаbility. Because removal of the disability in this case involved obtaining an order from a common pleas court sealing a prior felony conviction pursuant to R.C.
{¶ 59} In this circumstance, the time reasonably necessary for the R.C.
{¶ 60} We believe that under the circumstances of this case, the reasonable time necessary for relator to remove his disability pursuant to Vana extended beyond the time wherein Sabina council improperly removed relator from council and replaced him with respondent Curtis. Because we find that relator had not yet forfeited the office when council removed and replaced him, respondent Curtis' appointment remains improper. The Ohio Supreme Court has held that where a relator in quo warranto fails to prove entitlement to the disputed office, a writ may still issue to address the lawfulness of a respondent's claim to that office. Myers,
{¶ 61} Because we find that respondent Curtis was improperly appointed to council on October 7, 2002 and that subsequently relator became incompetent to hold the office, a vacancy presently exists for this particular seat on Sabina village council. Council may fill this vacancy pursuant to law. Nothing in this opinion would exclude either relator Powers or respondent Curtis from consideration, and nothing in this opinion limits council from consideration of only those two individuals.
{¶ 62} Having carefully reviewed the arguments presented, and based upon the foregoing, relator's petition for writ in quo warranto is granted as it relates to a prayer of ouster of respondent Curtis from the office of council member for the village of Sabina. Relator's petition is denied as it relates to a prayer of execution of office for relator. A vacancy is declared for this particular seat on council, which may be filled pursuant to law.
YOUNG, P.J., and POWELL, J., concur.