[Cite as State ex rel. Balas-Bratton v. Husted, 138 Ohio St.3d 527, 2014-Ohio-1406.]




              THE STATE EX REL. BALAS-BRATTON v. HUSTED ET AL.
        [Cite as State ex rel. Balas-Bratton v. Husted, 138 Ohio St.3d 527,
                                    2014-Ohio-1406.]
Elections—Prohibition—Allegation of biased board of elections member—
        Secretary of state not required to remove board of elections member for
        alleged bias—Secretary of state did not abuse his discretion in breaking
        board of elections tie in favor of denying protest against candidate for
        sheriff—Writ denied.
      (No. 2014-0374—Submitted March 28, 2014—Decided April 2, 2014.)
                                      IN PROHIBITION.
                                 ____________________
        Per Curiam.
        {¶ 1} In this expedited election case, we consider a challenge to George
Maier’s appearance on the primary ballot for Stark County sheriff. Last year, we
ousted Maier from that same office. State ex rel. Swanson v. Maier, 137 Ohio
St.3d 400, 2013-Ohio-4767, 999 N.E.2d 639. After his ouster, Maier obtained
full-time employment as a Harrison County deputy sheriff. The Stark County
Democratic Central Committee (“DCC”) apparently believed that this
employment cured the defect in his qualifications identified in Swanson and once
again appointed him Stark County sheriff. So that he can run for that office to fill
the still-unexpired term, he submitted an application to be a candidate for sheriff
in the May 6, 2014 Democratic primary election.
        {¶ 2} Relator, Cynthia Balas-Bratton, filed a protest with the Stark
County Board of Elections (“BOE”) claiming that Maier remains unqualified to
be a candidate for sheriff. The BOE’s vote on the protest ended in a tie regarding
some of Maier’s qualifications, and respondent Secretary of State Jon Husted
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broke the tie in favor of denying the protest and allowing Maier to remain on the
primary ballot. Balas-Bratton filed this action in prohibition to order the BOE and
Husted to remove a BOE member for purposes of this protest because the member
is biased in favor of Maier and to order Husted to remove Maier from the primary
ballot.
          {¶ 3} The issues in this case are (1) whether a member of the BOE
should (or could) have been removed from the BOE for bias in favor of Maier and
(2) whether Husted abused his discretion in breaking the BOE’s tie vote on
Maier’s qualifications and allowing Maier to remain on the ballot.
          {¶ 4} Because neither Husted nor the BOE has the clear authority to
remove a board of elections member for bias and because Husted did not abuse
his discretion in allowing Maier to remain on the ballot, we deny the writ.
                                        Facts
                      Maier’s ouster as sheriff of Stark County
          {¶ 5} George Maier was appointed by the DCC as sheriff of Stark
County when the sheriff-elect was unable to assume the office for health reasons.
His appointment was challenged in quo warranto, and last year, this court issued a
writ ousting him as Stark County sheriff. Swanson, 137 Ohio St.3d 400, 2013-
Ohio-4767, 999 N.E.2d 639, ¶ 40. We based our decision on Maier’s failure to
meet the requirements under R.C. 311.01(B)(8), subsection (a),1 which requires,
among other things, that a county sheriff have been employed within the four
years immediately prior to the statutory qualifying date as a highway patrol
officer or “as a full-time peace officer as defined in section 109.71 of the Revised
Code performing duties related to the enforcement of statutes, ordinances, or
codes.” Although he had been a highway patrol officer, his employment there
ended before the qualifying time period. Id. at ¶ 30.

1. Maier acknowledged in that action that he did not qualify under R.C. 311.01(B)(8)(b).
Swanson, 137 Ohio St.3d 400, 2013-Ohio-4767, 999 N.E.2d 639, ¶ 29.




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          {¶ 6} Maier held two other positions that he asserted qualified him under
R.C. 311.01(B)(8)(a), but the court found that neither satisfied the statute, as he
had held neither position full-time. The first position, assistant director of the
Department of Public Safety, was not full-time, because not all his working hours
were devoted to peace-officer duties. Id. at ¶ 37. The second, a brief stint as a
deputy sheriff of Harrison County, was not full-time, because he worked only a
single weekend, and therefore failed to meet the definition of “full-time” for
county employees in R.C. 325.19, that is, a total of 40 hours a week. Id. at ¶ 38.
Because we found him unqualified under R.C. 311.01(B)(8), we declined to
consider the challenges to his qualifications under R.C. 311.01(B)(9). Id. at ¶ 39.
                           Maier is reappointed as sheriff
          {¶ 7} Shortly after he was ousted, Maier went back to work for Harrison
County as a deputy sheriff, but this time remained in the position full-time for
four weeks. Apparently believing that this cured the defect in his qualifications
found by the court, he then sought reappointment to the position as Stark County
sheriff and was successful. His current appointment to the office of sheriff began
on December 12, 2013.         His current tenure in that position has not been
challenged.
           Maier’s application for candidacy is protested by Balas-Bratton
          {¶ 8} So that he may run for sheriff in the 2014 general election, Maier
submitted an application for candidacy with the BOE on January 28, 2014. On
February 11, 2014, Balas-Bratton filed a protest with the BOE claiming that
Maier failed to meet the statutory qualifications for a candidate for sheriff,
specifically, R.C. 311.01(B)(8)(a) or (b) and (B)(9)(a) or (b). The protest sought
to prevent Maier’s name from appearing on the May 6, 2014 Democratic primary
ballot.




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            Balas-Bratton asserts that board member St. John is biased
       {¶ 9} Prior to the BOE hearing on the protest, Balas-Bratton sent
correspondence to the BOE and Husted requesting that BOE member
Deametrious St. John recuse himself from participating in the protest hearing or
be prevented from participating in the protest hearing. Balas-Bratton alleges that
she claimed in her correspondence that St. John could not be fair and impartial
because he had previously voted to appoint Maier as sheriff, had signed a letter
supporting the appointment of Maier for sheriff in February 2013, and had made
statements to a newspaper reporter indicating that he believed that Maier met the
qualifications.
       {¶ 10} On February 14, 2014, BOE member St. John executed an affidavit
that he submitted to the BOE attesting that he could be fair and impartial at the
protest hearing.
       {¶ 11} One day before the protest hearing was scheduled to take place,
Balas-Bratton filed an action in prohibition and mandamus against the BOE in the
Fifth District Court of Appeals to prevent St. John’s participation in the protest
hearing. That court did not issue a writ before the hearing. After the hearing, the
court of appeals dismissed the action as moot. That dismissal is currently on
appeal to this court. State ex rel. Balas-Bratton v. St. John, case No. 2014-0367.
                      The BOE’s hearing resulted in a tie vote
       {¶ 12} On February 21, 2014, the BOE held a public hearing on the
protest. After a day-long hearing in which four witnesses testified and were
cross-examined, and the parties submitted 23 exhibits, the BOE voted on the
protest. On the issue of Maier’s qualifications under R.C. 311.01(B)(8), the BOE
voted to deny the protest. However, as to Maier’s qualifications under R.C.
311.01(B)(9), the BOE produced a tie vote, with the two Democrats, Ferrucio and
St. John, voting to deny the protest and the two Republicans, Cline and Braden,
voting to grant the protest.



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                               January Term, 2014




                        The tie vote was broken by Husted
       {¶ 13} The matter was referred to Husted to break the tie under R.C.
3501.11(X). On March 7, 2014, Husted issued his decision, voting to deny the
protest. Husted found that R.C. 311.01(B)(9) “needs more clarity” and “is in need
of rewriting in a manner that is unambiguous.” Nevertheless, he found that the
record lacked evidence to demonstrate that Maier was unqualified under R.C.
311.01(B)(9). He therefore broke the BOE tie in favor of denying the protest.
       {¶ 14} Balas-Bratton initiated this action in prohibition, requesting
expedited review and an order precluding Husted and the BOE from including
Maier on the May primary ballot.
                                     Analysis
                                    Prohibition
       {¶ 15} To be entitled to the requested writ of prohibition, Balas-Bratton
must establish that (1) a lower tribunal is about to or has exercised judicial or
quasi-judicial power, (2) the exercise of that power is unauthorized by law, and
(3) denying the writ would result in injury for which no other adequate remedy
exists in the ordinary course of law. State ex rel. Bell v. Pfeiffer, 131 Ohio St.3d
114, 2012-Ohio-54, 961 N.E.2d 181, ¶ 18 and 23; State ex rel. Miller v. Warren
Cty. Bd. of Elections, 130 Ohio St.3d 24, 2011-Ohio-4623, 955 N.E.2d 379, ¶ 12.
       {¶ 16} Moreover, “[i]n extraordinary-writ actions challenging a decision
of the secretary of state, the standard is whether the secretary engaged in fraud,
corruption, or abuse of discretion, or acted in clear disregard of applicable law.”
State ex rel. Lucas Cty. Republican Party Executive Commt. v. Brunner, 125 Ohio
St.3d 427, 2010-Ohio-1873, 928 N.E.2d 1072, ¶ 9. There is no evidence of fraud
or corruption here, so the dispositive issue is whether Husted abused his
discretion or clearly disregarded applicable law.
       {¶ 17} Because Balas-Bratton cannot satisfy the elements of prohibition,
we deny the writ.



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                      Alleged bias of board member St. John
       {¶ 18} Balas-Bratton first asks the court for a writ of prohibition directing
Husted not to recognize St. John’s vote against her protest. This claim is based on
Balas-Bratton’s assertion that St. John was biased in favor of Maier and against
her protest. She bases this assertion on the grounds that St. John, as a member of
the DCC, had twice voted to appoint Maier sheriff, both before and after his
ouster; that he had signed a letter directed to fellow DCC members and supporting
Maier; and that he had stated to a reporter that he had always believed that Maier
met the qualifications.
       {¶ 19} As explained above, prohibition requires that a tribunal be
exercising or about to exercise judicial or quasi-judicial power.          We have
therefore refused to issue writs of prohibition against boards of elections if the
board is not required to hold a hearing on the matter at issue. State ex rel.
Baldzicki v. Cuyahoga Cty. Bd. of Elections, 90 Ohio St.3d 238, 241, 736 N.E.2d
893 (2000), citing State ex rel. Youngstown v. Mahoning Cty. Bd. of Elections, 72
Ohio St.3d 69, 72, 647 N.E.2d 769 (1995). Here, Balas-Bratton fails to allege or
demonstrate that the BOE or Husted had any obligation to hold a hearing or other
quasi-judicial procedure with respect to her contention regarding St. John’s
alleged bias. Thus, neither respondent is about to exercise nor has exercised
quasi-judicial power, and the first requirement for a writ of prohibition is not met.
       {¶ 20} Additionally, Balas-Bratton cites no authority allowing the BOE to
remove or suspend one of its members, and the authority she cites for the
proposition that Husted can intervene in this way does not support her argument.
The cited statute, R.C. 3501.16, allows the secretary to remove a board member
under very specific circumstances:


               The secretary of state may summarily remove or suspend
       any member of a board of elections, or the director, deputy



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       director, or any other employee of the board, for neglect of duty,
       malfeasance, misfeasance, or nonfeasance in office, for any willful
       violation of Title XXXV of the Revised Code, or for any other
       good and sufficient cause. Except as otherwise provided in section
       3501.161 of the Revised Code, vacancies in the office of
       chairperson, director, or deputy director shall be filled in the same
       manner as original selections are made, from persons belonging to
       the same political party as that to which the outgoing officer
       belonged. If those vacancies cannot be filled in that manner, they
       shall be filled by the secretary of state.


Balas-Bratton does not, and cannot, assert that Husted was required to remove or
suspend St. John, and indeed, this court has previously rejected the argument that
the secretary may remove a board member for a conflict of interest:


               R.C. 3501.16 does not grant the Secretary of State broad
       discretion in removing election board members. He is required to
       submit more than “his reasons for believing” the individual should
       be removed. Indeed, he cannot remove them except for certain
       very specific reasons and “other good and sufficient cause.” Given
       the language of the statute and the fact that an individual who is
       already an election board member has a greater constitutional
       interest in keeping that position than does an individual who has
       not yet been appointed * * * we do not find that the Secretary of
       State has a clear legal duty to remove [the member] from, or vacate
       his appointment to, the Board of Elections of Mahoning County.




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State ex rel. Hough v. Brown, 50 Ohio St.2d 329, 332, 364 N.E.2d 275 (1977).
Thus, under Hough, Husted could not remove or suspend St. John simply because
of an allegation of bias or conflict of interest.
        {¶ 21} We deny a writ of prohibition on the issue of removing St. John
from the BOE for alleged bias.
                           Maier’s qualification as sheriff
                                     R.C. 2733.14
        {¶ 22} Balas-Bratton’s claim hinges on whether Husted abused his
discretion by breaking the tie in favor of leaving Maier’s name on the ballot. She
cites R.C. 2733.14 for the proposition that Maier’s ouster as Stark County sheriff
permanently precludes him from ever again being sheriff of Stark County. The
statute states:


                  When a defendant in an action in quo warranto is found
        guilty of usurping, intruding into, or unlawfully holding or
        exercising an office, franchise, or privilege, judgment shall be
        rendered that he be ousted and excluded therefrom, and that the
        relator recover his costs.


Balas-Bratton interprets this statute to mean that once a person is ousted from a
position he can never again hold that position. This is, at best, a strained reading
of the statute. The ousted party is excluded from the office only at the time of the
quo warranto action, not forever. If Maier can now qualify as a candidate for
sheriff, he may run for the office, even though he did not qualify last year.
                        Maier satisfies R.C. 311.01(B)(9)(a)
        {¶ 23} Balas-Bratton contends that Maier does not qualify under either
R.C. 311.01(B)(9)(a) or (b). R.C. 311.01(B)(9) requires that a candidate for
sheriff meet at least one of the following two requirements:



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                               January Term, 2014




               (a) Has at least two years of supervisory experience as a
       peace officer at the rank of corporal or above, or has been
       appointed pursuant to section 5503.01 of the Revised Code and
       served at the rank of sergeant or above, in the five-year period
       ending immediately prior to the qualification date;
               (b) Has completed satisfactorily at least two years of post-
       secondary education or the equivalent in semester or quarter hours
       in a college or university authorized to confer degrees by the Ohio
       board of regents or the comparable agency of another state in
       which the college or university is located or in a school that holds a
       certificate of registration issued by the state board of career
       colleges and schools under Chapter 3332. of the Revised Code.


Thus, to qualify for county sheriff, a candidate must meet the qualifications set
forth in R.C. 311.01(B)(9)(a) or R.C. 311.01(B)(9)(b). Maier need not meet both
qualifying conditions, but must meet at least one.
       {¶ 24} As to R.C. 311.01(B)(9)(a), Maier claims that he has a total of 39
months of the requisite supervisory experience that qualify under this provision.
Specifically, he claims that he served for 23 months during the qualifying period
as the assistant director and interim director of the Ohio Department of Public
Safety, and during that time, he supervised several units of peace officers,
including the Ohio Investigative Unit and the Ohio Homeland Security unit. As
the assistant director, he supervised and directed coordination of all criminal
investigations with the governor’s chief legal counsel and the State Highway
Patrol. The superintendent of the Highway Patrol, who holds the rank of colonel,
reported to Maier on active investigations on a weekly basis. He was also a




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certified peace officer during the time he served as supervisor for the various units
at the Department of Public Safety.
       {¶ 25} Second, he served as the safety and service director of the city of
Massillon for 14 months, and in that position, he supervised the police and fire
departments and held a peace officer’s commission.               Third, he served
unchallenged as Stark County sheriff for two months within the qualifying period.
       {¶ 26} Balas-Bratton’s argument that Maier’s supervisory experience
must be consecutive is without merit. Specifically, she asserts that Maier cannot
add the time periods of his various supervisory positions together to satisfy the
requirement of 24 months of supervisory experience. But the statute does not
explicitly require that the two years of experience be consecutive, and absent such
language, we hold that nonconsecutive supervisory experience may be used to
satisfy R.C. 311.01(B)(9)(a).
       {¶ 27} Balas-Bratton also argues that Maier’s supervisory experience as
assistant director of the Department of Public Safety was “civilian administrative
service” and such “rankless” service does not satisfy the statute. This argument is
also without merit.
       {¶ 28} Balas-Bratton relies on three cases to support her argument, all of
which are inapposite here. The first, State ex rel. Wolfe v. Delaware Cty. Bd. of
Elections, 88 Ohio St.3d 182, 724 N.E.2d 771 (2000), does not hold that the
experience must be at a paramilitary rank to qualify. Rather, Wolfe held that the
candidate’s experience did not qualify because some of it was clearly not served
at the rank of corporal or above. Id. at 185. In the second case, State ex rel.
Watson v. Hamilton Cty. Bd. of Elections, 88 Ohio St.3d 239, 725 N.E.2d 255
(2000), the candidate admitted that he had never served as a peace officer at the
rank of corporal or above. Id. at 241. And in the third case, Wellington v.
Mahoning Cty. Bd. of Elections, 117 Ohio St.3d 143, 2008-Ohio-554, 882 N.E.2d
420, again, the candidate admitted that he had not served as a peace officer at the



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                                 January Term, 2014




rank of corporal or above, but had served only on a United States Marshal task
force.
         {¶ 29} Maier’s experience as Stark County sheriff after he was
reappointed obviously qualifies as supervisory experience as a peace officer at or
above the rank of corporal.       The question is whether his experience at the
Department of Public Safety and the city of Massillon satisfies that same statutory
criterion.
         {¶ 30} Maier was assistant director of the Department of Public Safety,
and during that time, he was a certified peace officer. He was unequivocally a
“peace officer,” and he held a “supervisory position.” The highest-ranking officer
of the Highway Patrol, a colonel, reported to Maier. At the city of Massillon,
both the chief of police and the fire chief reported to him. He therefore had
“supervisory experience as a peace officer” over officers “at the rank of corporal
or above.” Although Maier was not himself a ranked officer in these positions, he
was supervising officers well above the rank of corporal, so it is clear that this
experience satisfies the statutory requirement.
         {¶ 31} Based on our findings, it is clear that Husted did not abuse his
discretion or act in clear disregard of applicable law in finding that Maier met the
qualifications under R.C. 311.01(B)(9)(a). Because Maier qualifies under R.C.
311.01(B)(9)(a),    we    need   not     address    his   qualifications   under   R.C.
311.01(B)(9)(b).
                                       Conclusion
         {¶ 32} For the foregoing reasons, we deny the writ of prohibition.
                                                                           Writ denied.
         O’CONNOR, C.J., and PFEIFER, O’DONNELL, KENNEDY, FRENCH, and
O’NEILL, JJ., concur.
         LANZINGER, J., concurs in judgment only.
                              ____________________



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       Craig T. Conley, for relator.
       Michael DeWine, Attorney General, and Ryan L. Richardson and Erin
Butcher-Lyden, Assistant Attorneys General, for respondent Secretary of State
Jon Husted.
       David M. Bridenstine, for respondent Stark County Board of Elections.
       Roetzel & Andress, L.P.A., Thomas L. Rosenberg, and Michael R.
Traven, for intervening respondent George T. Maier.
       Law Offices of Robert L. Berry, L.L.C., and Robert L. Berry, urging
denial of the writ for amicus curiae, Buckeye State Sheriffs Association.
                         _________________________




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