Butler County township may fight elections board decision

9:43 p.m Monday, Aug. 21, 2017 Butler County
St. Clair Twp. will not have fire and life squad renewal levies on the November ballot because of an apparent unauthorized signature, the Butler County Board of Elections ruled today, Aug. 21. STAFF FILE PHOTO

St. Clair Twp.’s law director believes Ohio law did give him the authority to sign a resolution to help place two levies on the November ballot, despite the legal advice the county elections board received.

Elections officials said based on the advice of the Butler County Prosecutor’s Office — which indicated there is no legal authority to allow the fiscal officer to delegate his or her authority to sign on their behalf — the county board of elections voted 3-1 to not certify two St. Clair township levies, a 0.5-mill fire levy and a 0.5-mill life squad levy.

However, township officials believe the Butler County Board of Elections was wrong in its decision, and township attorney Gary Sheets said there’s a posibility to contest the decision in court.

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“The law provides a ‘presumption of validity’ that legislative action is valid which a challenger, like the board of elections, needs to rebut in order to disregard what us placed before them and appears to be valid,” Sheets said. “I know what was placed before the board of elections today and they rejected on the advice of their attorney was a true and accurate copy of the trustees resolution because we copied it from the original resolution.”

Sheets also said he believes he was acting in a de facto capacity, which allows a public official to perform the duties of a public office without being lawfully placed in that office.

On behalf of township fiscal officer Doug Wheelwright, who was on vacation, Sheets signed the township’s Aug. 4 resolution clarifying two prior resolutions concerning the tax levies. The original levy resolutions, which were signed by Wheelwright, had incorrect dates. The fire levy resolution indicated the wrong election year and the life squad levy resolution indicated a wrong auditor’s certification date.

And though elections officials believe there was no documentation that stated the power to sign on behalf of the fiscal officer, Sheets says there is Ohio case law where unlawful appointments did not invalidate decisions and believes he had the legal authority to sign in a de facto capacity.

Elections board Deputy Director Jocelyn Bucaro said the county prosecutor’s office indicated there is no legal authority in Ohio to allow the fiscal officer to delegate his or her authority to sign that resolution.

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Bucaro said the prosecutor’s office did say the correction for the fire levy was more clear than the correction for the life squad levy, and the board could determine that the election date is clear and the therefore certify the issue.

“But we questioned that because it’s all one resolution signed by Gary Sheets,” said Bucaro, indicating he didn’t have the apparent authority to sign on behalf of the fiscal officer according to the prosecutor’s office.

Elections board member Chris Wunnenberg dissented in the board of elections vote, calling the unauthorized signature a technicality.

“I recommend that we certify (the levies),” he said. “Let the people decide. These are administrative, technical errors.”

But now that the Butler County Board of Elections rejected a pair of first-responder renewal levies, St. Clair Twp. trustees will need to decide how soon they will try again. The township would have collected $50,000 in the first year of the fire levy and $59,600 in the first year of the life squad levy.

“It’s sad that a fire department would have to suffer,” said St. Clair Twp. Trustee Gary Couch. He said there township will be able to operate the fire department and life squad, which is a joint venture with New Miami.

Though he wouldn’t elaborate, Couch said, “I think there’s underlying factors.”