Opinion
No. 76-1104
Decided June 29, 1977.
Mandamus — To vacate appointment to board of elections — Writ denied, when.
IN MANDAMUS.
Some time prior to January 13, 1976, the Democratic Executive Committee of Mahoning County, pursuant to R.C. 3501.07, recommended that respondent, the Secretary of State of Ohio, appoint William L. Repasky to the Board of Elections of Mahoning County. On January 13, 1976, respondent appointed Repasky to the board of elections. At the time of his appointment, Repasky, as an employee of the office of the sanitary engineer, served at the will of the board of county commissioners. Two members of that board were candidates in the June 1976 primary and the November 1976 general election. Subsequent to June 8, 1976, Repasky was elected treasurer of the Mahoning County Democratic Central and Executive Committees, and on August 2, Repasky was appointed clerk of the Board of Commissioners of Mahoning County.
On August 3, 1976, attorney for relator informed respondent by letter that he felt that Repasky could not serve on the board of elections without a conflict of interest because he also served as an employee of the board of county commissioners, two of whose members would be candidates in the November election, and because, in his position as treasurer of the Democratic Central and Executive Committees, he filed reports of the expenditures with the board of elections. Respondent replied that the alleged conflict of interest did not constitute "good and sufficient cause" to remove Repasky and, therefore, that he did not have authority to take such action.
On October 1, 1976, relator filed a complaint in this court seeking a writ of mandamus to require respondent in the alternative "(1) to cause proceedings to be instituted to vacate the appointment of William L. Repasky as a member of the Board of Elections, Mahoning County, or (2) to remove said William L. Repasky as such member pursuant to law."
Messrs. Hanni, Tumbri Schwaber and Mr. Don L. Hanni, for relator.
Mr. William J. Brown, attorney general, and Mr. Thomas V. Martin, for respondent.
The sole issue raised by this cause is whether mandamus should issue to compel respondent "(1) to cause proceedings to be instituted to vacate the appointment of William L. Repasky as a member of the Board of Elections, Mahoning County, or (2) to remove said William L. Repasky as such member pursuant to law."
Mandamus will not lie unless there is a clear legal duty by a public officer to perform an official act ( State, ex rel. Pressley, v. Indus. Comm., 11 Ohio St.2d 141). We do not agree with relator that respondent has a clear legal duty to remove Repasky from, or vacate his appointment to, the Board of Elections of Mahoning County.
The Secretary of State is authorized to appoint and remove members of boards of elections pursuant to R.C. 3501.06, 3501.07, and 3501.16. R. 3501.07, which controls the appointment of Repasky, provides, in pertinent part:
"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."
This court has upheld the discretion of the Secretary of State, pursuant to R.C. 3501.07, to refuse to appoint to an election board an individual employed by a candidate for office. State, ex rel. Democratic Executive Committee, v. Brown (1974), 39 Ohio St.2d 157. The court justified that decision, at page 160, on the following grounds:
"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 recommnded is upon the county executive committee."
Those reasons do not apply in the instant cause. The Secretary of State's power to remove members of boards of elections is controlled by R.C. 3501.16. That removal statute provides, in pertinent part:
"The Secretary of State may summarily remove any member of a board of elections, or the clerk, deputy clerk, 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."
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 (see Section 38, Article II of the Ohio Constitution; State, ex rel. Hughes, v. Brown, 31 Ohio St.2d 41; and State, ex rel. Democratic Executive Committee, supra), we do not find that the Secretary of State has a clear legal duty to remove Repasky from, or vavate his appointment to, the Board of Elections of Mahoning County. We therefore deny the writ of mandamus.
Writ denied.
O'NEILL, C.J., HERBERT, CELEBREZZE, W. BROWN, P. BROWN, SWEENEY and LOCHER, JJ., concur.