Thursday, July 24, 2003

More Burning Recall Questions?
In this week’s Burning Questions article from CityBeat Stephanie Dunlap writes about the methods in Ohio to remove Mayor Luken and Governor Taft from Office. In this article Stephanie states that the recall procedure never made it to the Ohio Revised Code or Cincinnati Charter. I agree this is the case for governor, but not for elected officers of municipal corporations, which I believe includes Cincinnati. The Ohio Revised Code § 705.92 “Procedure for removal by recall” appears to provide such procedures where elected municipal officials could be removed from office by the voters of the same municipality. The code section reads as follows:
§ 705.92 Procedure for removal by recall.
Any elective officer of a municipal corporation may be removed from office by the qualified voters of such municipal corporation. The procedure to effect such removal shall be:
(A) A petition signed by qualified electors equal in number to at least fifteen per cent of the total votes cast at the most recent regular municipal election, and demanding the election of a successor to the person sought to be removed, shall be filed with the board of elections. Such petition shall contain a general statement in not more than two hundred words of the grounds upon which the removal of such person is sought. The form, sufficiency, and regularity of any such petition shall be determined as provided in the general election laws.
(B) If the petition is sufficient, and if the person whose removal is sought does not resign within five days after the sufficiency of the petition has been determined, the legislative authority * shall thereupon order and fix a day for holding an election to determine the question of the removal of the elective officer, and for the selection of a successor to each officer named in said petition. Such election shall be held not less than thirty nor more than forty days from the time of the finding of the sufficiency of such petition. The election authorities shall publish notice and make all arrangements for holding such election, which shall be conducted and the result thereof returned and declared in all respects as are the results of regular municipal elections.
(C) The nomination of candidates to succeed each officer sought to be removed shall be made, without the intervention of a primary election, by filing with the election authorities, at least twenty days prior to such special election, a petition proposing a person for each such office, signed by electors equal in number to ten per cent of the total votes cast at the most recent regular municipal election for the head of the ticket.
(D) The ballots at such recall election shall, with respect to each person whose removal is sought, submit the question: "Shall (name of person) be removed from the office of (name of office) by recall?"

Immediately following each such question, there shall be printed on the ballots, the two propositions in the order set forth:

"For the recall of (name of person)."

"Against the recall of (name of person)."

Immediately to the left of the proposition shall be placed a square in which the electors may vote for either of such propositions.

Under each of such questions shall be placed the names of candidates to fill the vacancy. The name of the officer whose removal is sought shall not appear on the ballot as a candidate to succeed the officer's self.

In any such election, if a majority of the votes cast on the question of removal are affirmative, the person whose removal is sought shall be removed from office upon the announcement of the official canvass of that election, and the candidate receiving the plurality of the votes cast for candidates for that office shall be declared elected. The successor of any person so removed shall hold office during the unexpired term of the successor's predecessor. The question of the removal of any officer shall not be submitted to the electors until such officer has served for at least one year of the term during which he is sought to be recalled. The method of removal provided in this section, is in addition to such other methods as are provided by law. If, at any such recall election, the incumbent whose removal is sought is not recalled, the incumbent shall be repaid the incumbent's actual and legitimate expenses for such election from the treasury of the municipal corporation, but such sum shall not exceed fifty per cent of the sum that the incumbent is by law permitted to expend as a candidate at any regular municipal election.

HISTORY: GC § 3515-71; 103 v 767(785), Const Art VII, § 2; Bureau of Code Revision, 10-1-53; 146 v H 99. Eff 8-22-95.

* So in enrolled bill, division (B). The word "authority" appears in previous versions but was not officially struck out in HB 99 (146 v --), eff 8-22-95.
Under this section Mayor Luken could be recalled by the voters of Cincinnati if 12,937 registered voters residents of Cincinnati signed a petition under the above rules. The 12,937 comes from 86,249 x 15% rounded up, where 86,249 was the total votes for mayor in 2001.

ORC § 3.07 and 3.08 do cover the removal of office procedures for all officers which covers the means described in the CityBeat article. Those procedures still apply, but this above procedure would not be in conflict.

Now I have to once again notify you that I am not a lawyer. My understanding of the law is above average for the layman, but I am not infallible. My study of the ORC and Cincinnati Charter indicate that this law would allow a recall process for Mayor Luken, or any City Council member. I invite any lawyers out there to set me straight if I am wrong.

On the issue of whether Luken should be recalled, that is a complicated issue. Gray Davis should not be recalled. Under this law he would not be eligible to be recalled, since he has not served 1 year in the current term of governor. Luken would be open to recall at this point. Luken's actions regarding Issue 5 are enough for some to want him out. I can understand the anger and frustration. Kowtowing to the FOP is nothing but a political ploy for Luken, who is disliked by the GOP controlled FOP leadership as much as the boycott groups. Recall petitions are really not wise long-term choices, because you don't know whom you will get place of the person you want out. Thankfully, this law is not easy to execute. The requirements are much higher than California's recall law. 15% for recall and 10% to get on the ballot is vastly more difficult than what the foes of Davis faced. Luken has no fear of being booted from office, except in November of 2005.

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