State ex rel. Democratic Executive Committee v. Brown

Per Curiam. R. C. 3501.07 reads as follows: “At a meeting held not more than sixty nor less than fifteen days before the expiration date of the term of office of a member of the board of elections, or within fifteen days after a vacancy occurs in the board, the county executive committee of the major political party entitled to the appointment may make and file a recommendation with the Secretary of State for the appointment of a qualified elector. The Secretary of State shall appoint such elector, unless he has reason to believe that the elector would not be a competent member of such board. In such cases, the Secretary of State shall so state in writing to the chairman of such county executive committee, with the reasons therefor, and such committee may either recommend another elector or may apply for a writ of mandamus to the Supreme Court to compel the Secretary of State to appoint the elector so recommended. In such action the burden of proof to show the qualifications of the person so recommended shall be on the committee making the recommendation. If no such recommendation is made, the Secretary of State shall make the appointment.” Citing the Fourteenth Amendment to the United States Constitution and Section 38 of Article II of the Ohio Constitution, relators argue that R. C. 3501.07 cannot vest sole and arbitrary discretion in the Secretary of State to determine competency of recommended members of the board of elections without also providing procedural guarantees of due process. We disagree. In two recent decisions, Board of Regents of State Colleges v. Roth (1972), 408 U. S. 564, and Perry v. Sindermann (1972), 408 U. S. 593, the United States Supreme Court set forth standards for determining when a public employee’s right to reemployment is protected by the Fourteenth Amendment’s guarantees of due process. In Roth, the court determined that the Fourteenth Amendment guarantees protected a public employee’s interest in liberty and property. The court held that a nontenured professor at a state university was not entitled — 159 — to notice and a hearing under the Fourteenth Amendment-because: (1) No stigma or disability attached to the failure to rehire which would foreclose the professor’s liberty to' seek other employment, and; (2) The professor’s contract of employment was limited to a period of one year, after the expiration of which, no contract or property right existed which was entitled to Fourteenth Amendment protection. The court did state that, where there was admittedly no right to employment, the government could not, however, make a determination not to rehire for a constitutionally impermissible reason. More importantly to the case at bar, Chief Justice Burger, in his concurring opinions in both Both and Sindermann, stated that only when a right to reemployment under state law exists, arising from an express or implied contract, will the Fourteenth Amendment protect that right. In the present case, no statutory right to appointment exists under R. C. 3501.07 prior to approval by the Secretary of State. We see no stigma or disability attaching to the exercise of statutory discretion by the Secretary of State in failing to appoint the recommended electors' which would foreclose their seeking any other elective or appointive position. Additionally, R. C. 3501.07 does not conflict with Section 38 of Article II of the Ohio Constitution. That section requires a formal complaint and a hearing only in cases involving removal of state officers for cause. R. C. 3501.07 grants discretion to the Secretary of State as the appointing authority and does not operate to effect the removal of a public officer. Relators have not demonstrated that the provisions of R. C. 3501.07 conflict with or are prohibited by any constitutional provision. On the merits of respondent’s refusal to appoint them to the boards of elections, relators contend that mandamus is the proper remedy to correct an abuse of discretion by the Secretary of State under R. C. 3501.07 and that re — 160 — spondent’s reasons for refusing to appoint them are not supported by any credible evidence and are of no substance. R. C. 3501.07 grants the respondent Secretary of State broad discretion in determining whether recommended appointees are competent to be members of boards of elections. The statute requires only that he submit his reasons for believing that the candidate would not be competent, in writing, to the county executive committee recommending him. The statute also specifies that in a mandamus proceeding before this court the burden of proving the qualifications of the candidate so recommended is upon the county executive committee. The general rule in regard to the issuance of a writ of mandamus to appointing authorities is that such authorities, vested with the power of appointment to office, are generally entitled to exercise judgment and discretion in the matter, and where that is the case courts in mandamus actions will only compel the appointing board or officer to proceed to exercise the power of appointment, and will not allow a writ of mandamus to control or override the decision made. 52 American Jurisprudence 2d 604, Mandamus, Section 275. Cf. Keim v. United States (1900), 177 U. S. 290. In State, ex rel. Derwort, v. Hummel (1946), 146 Ohio St. 653, this court held that Section 4785-9, General Code (the predecessor of R. C. 3501.07 and substantially the same in all relevant respects), authorizing the Secretary of State to determine whether a person recommended for appointment as a member of the board of elections is a qualified elector and will be a competent member of such board, clothes the Secretary of State with quasi-judicial power when exercising discretion in such matter. The court, at page 653, stated: “Authority to appoint being vested in the Secretary of State by statute, a writ of prohibition will not issue to control the exercise of discretion by him. State, ex rel. Firestone Tire & Rubber Co., v. Duffy et al., Indus. Comm., 114 Ohio St. 702, 152 N. E. 656.” — 161 — We think that the statute clearly empowers the Secretary of State to exercise his discretion in determining the qualifications and competency of persons recommended for appointment. Prior to the enactment of R. C. 3501.07 and its predecessor, Section 4785-9, General Code, in 1929, this court had held that it was incumbent upon the Secretary of State to appoint recommended electors, unless the Secretary of State established by clear and convincing evidence that such recommended persons were disqualified to hold office. State, ex rel. Culbert, v. Kinney (1900), 63 Ohio St. 304; State, ex rel. Brower, v. Graves (1913), 89 Ohio St. 24; State, ex rel. Kauffmann, v. Brown (1924), 111 Ohio St. 289, State, ex rel. Nolan, v. Brown (1925), 113 Ohio St. 386; State, ex rel. Nolan, v. Brown (1926), 115 Ohio St. 1. The enactment of Section 4785-9, General Code, and subsequently R. C. 3501.07, shifted the burden of proof of qualification in a mandamus action to those persons seeking the appointment. This enactment, we believe, conforms to the general rule in mandamus actions that the writ will not issue to con-' trol the discretion of a public official vested with the power of appointment but may be invoked to remedy an abuse of such discretion. State, ex rel. Coen, v. Indus. Comm. (1933), 126 Ohio St. 550; State, ex rel. Wilms, v. Blake (1945), 144 Ohio St. 619; State, ex rel. Great Lakes College, v. Medical Bd. (1972), 29 Ohio St. 2d 198. An abuse of discretion in such a case must be more than an error of law or an error of judgment. It means discretion exercised to an end or purpose not justified by, and clearly against, reason and evidence. State, ex rel. Wilms, v. Blake, supra, at page 624. As this court stated, in State, ex rel. Armstrong, v. Davey (1935), 130 Ohio St. 160, 163, a case involving the discretion of the Governor in setting the date for a special election, that: “ ‘Before the judiciary will interfere in such a case, it must clearly appear that such officer has so far depart — 162 — ed from the line of his duty under the law that it can be said he has in fact so far abused such discretion that he has neglected or refused to exercise any discretion.’ ” In the present case, the record indicates that the Secretary of State refused to appoint "William P. Boyle to the Board of Elections of Lucas County, in ease No. 74-145, and refused to appoint Don R. Gosney to the Board of Elections of Columbiana County, in case No. 74-147. In ease No. 74-145, the Secretary of State stated his reason for not appointing Mr. Boyle in a letter to the Lucas County Democratic Executive Committee, dated February 1, 1974. In relevant part, it states: “The competence of a board member depends not only on his knowledge of the election law and the mechanics of its administration; it also includes his basic ability to get along with those with whom he must work and to inspire public confidence in the election system. “It is my belief that personality conflicts cannot be allowed to be a disruptive influence in a board of elections. The ability to constructively cooperate is a necessity if the board is to properly perform the duties assigned to it by law. A board member must represent the interests of all of the people he serves, not just those of his own political persuasion. “Mr. Boyle’s performance during his current term has produced turmoil and tension that has hampered the ability of the board to transact necessary business. He has attempted to by-pass the board to undertake actions of dubious legality. He has injected abrasive partisan bickering into the conduct of board business, calling frequent and unnecessary meetings on short notice. His lack of tact and courtesy and his intrusion into administrative affairs, in violation of board policy regarding dealings with the staff, have damaged the harmony which once characterized the Lucas County Board and have undermined staff morale. “In the interests of re-establishing a healthy working relationship on the board and restoring public confidence in it, I believe that another elector, one who possesses the — 163 — ability to achieve these ends, should be appointed to the position of board member.” Although those reasons reflect to a great extent the Secretary of State’s personal views as to the requirements of a competent member of the board of elections, that determination is within the discretion granted the Secretary of State. A review of the minutes of the meetings of the Lucas County Board of Elections supports the allegations contained in the Secretary of State’s letter, and in view of the existence of these facts upon which the Secretary of State based his decision, this court cannot say that he abused his discretion in refusing to appoint Mr. Boyle. In case No. 74-145, the writ of mandamus is denied. In case No. 74-147, the Secretary of State refused to appoint Don R. Gosney to the Columbiana County Board of Elections. The Secretary of State set forth his reasons for this determination in a letter to Mr. Gosney, Chairman of the Democratic Executive Committee of Columbiana County, dated February 5, 1974, stating, in pertinent part: “You are hereby notified of my refusal to reappoint you to the board of elections. My reason is that you are employed by Congressman Wayne Hays at a salary of $17,100 per year and that, therefore, you will not be able to properly function as a board member and as an employee of the Congressman, especially at a point in time during which Congressman Hays is a candidate for office. The two positions have the potential for conflict of interest. “I believe there are strong public policy reasons as well as legal reasons for the view that board of elections members should not be on the payroll of persons seeking election or re-election to public office. In such instances of dual public employment, the official duties may he so administered and discharged that favoritism and preference may be accorded to an employer. The public should be protected from possible misuse of any public office.” The factual issues in this case have been admitted by the relators, and, although the Secretary of State’s decision as to the existence of a conflict of interest is disputed, such — 164 — decision is within the statutory discretion granted him under R. C. 3501.07. In view of the existence of the evidence establishing that Mr. Gosney is the salaried employee of an elected official, we are not inclined to interfere with the Secretary of State’s exercise of discretion in refusing to appoint him. The writ of mandamus in case No. 74-147 is denied. Writs denied. O’Neill, C. J., Corrigan and P. Brown, JJ., concur. Stern, J., concurs in the judgment. Herbert, J., concurs in case No. 74-145, but dissents in case No. 74-147. Celebrezze and W. Brown, JJ., dissent.