MOUNT VERNON — In a recent letter to the Mount Vernon News, M. Russell Erwin Sr., of the Knox County Chapter of Minutemen United, said the group had started preparations to recall the Mount Vernon school board due to its members’ refusal to publicly answer whether a teacher in the Mount Vernon school system is permitted to have a Bible on his or her desk.
Erwin said this week that the campaign to recall the members of the Mount Vernon City Schools Board of Education has actually begun and petitions are being circulated as a result.
The Ohio Constitution provides no recall election process for most elected public officials, including school board members. In other words, citizens cannot just put a recall issue on the ballot, go to the polls and vote to remove someone from office.
Instead, according to a communiqué from Richard Dickinson, general counsel for the Ohio School Boards Association, Ohio has a series of statutes that permit their removal for gross neglect of duty, misfeasance, malfeasance and nonfeasance. Disagreeing with an elected official’s decisions is not grounds for his or her removal from office — specific accusations of misconduct in office must be made in common pleas court.
Petitions listing those charges must be signed by qualified electors living in the school district. The number of signatures must be at least 15 percent of the total vote cast for governor in the most recent election. In this case 1,546 valid signatures would be required.
It would then be up to the court to decide how to verify the signatures. The Ohio Revised Code does not specifically state that the Board of Elections has a duty to verify the signatures, because the recall process is a judicial matter, but a spokesman from the Ohio Secretary of State’s office said the chances are very high that the Board of Elections would certify the signatures if asked to do so.
The law is also unclear as to who pays for the court costs. Erwin said, “We [Minutemen United] are prepared to pay for it ourselves.”
If the correct number of valid signatures is obtained on petitions, the petitions are then filed in the court of common pleas. David Millstone, attorney with Squire, Sanders & Dempsey LLP said, “Once the court gets the petition they have to serve it, and within 30 days they have to hold the trial. It’s a very quick procedure. The judge will schedule a trial date and set a pretrial hearing immediately.”
At the pretrial hearing, Millstone said, the court will call the parties in to discuss the suit. He said the judge could say that the charges on the petition did not meet the legal requirements and get a voluntary dismissal from the complainants. Usually, though, the judge will wait for a motion. Then it’s up to the party that’s representing the board members to file a motion with the court to dismiss if they think the petition is insufficient.
If the case is not dismissed, a hearing is typically held before a judge, although the school board members could request a jury trial. The judge will then render a decision as to whether the charges have been proved and whether they warrant the removal of the defendants from public office. The individuals in question may then take advantage of their right to appeal a removal decision.
There are fairly rigorous criteria which must be met before an individual is removed from office by the court. According to Ohio Supreme Court case precedents, the law must be strictly interpreted to disfavor removal: “An elective public official should not be removed from office except for clearly substantial reasons and conclusions that his further presence in office would be harmful to the public welfare.”
Scott Ebright, OSBA deputy director of communication services, said in the past 24 years a school board recall has been attempted by citizens in several districts, but the process has been successful just three times. In two of the cases, board members were removed from office in part due to repeated violations of Ohio’s Sunshine Law. In those cases, the boards repeatedly held lengthy executive sessions, then returned to open session to vote on matters after little, or no, public discussion.
One of the three successful recalls involved four members of the Madison-Plains Local Board of Education. Some 700 district residents signed the petitions; the stated grounds for removal were gross neglect of duty, misfeasance, malfeasance and nonfeasance. In the Madison-Plains case, the court said gross neglect of duty was either an intentional wrong or such a reckless disregard of duty as to imply bad faith. Nonfeasance is not doing something one ought to do; misfeasance is improperly doing something that one can lawfully do; and malfeasance is doing something one ought not do at all.
“Mere mistake,” the court said, “or failure to carry out minor statutory requirements attached to their office do not warrant the extraordinary remedy of removal from office. However, the discretion of the school board is not unlimited, and when it is abused the courts may step up with the power of judicial review.”
Approximately three weeks after a hearing was held where witnesses testified and other evidence was presented, the judge ordered the removal of three of the four board members. According to the previously mentioned communiqué, the court found all four individuals were in violation of the Ohio Open Meetings Act and Ohio Public Records Act. Other statutory violations, according to the court, were: The board members illegally delegated authority to one single member of the board and illegally paid people who were not properly certified to teach the subjects they were teaching; one board member improperly voted to employ her own family members; and one board member was found to have obstructed an investigation by the Department of Children’s Services.
Although the fourth board member participated in the votes used by the three other board members, the court did not find any evidence of bad faith on her part and did not remove her from office.
When a single board member is removed from office, the vacancy may be filled by a majority vote of the remaining board members. If that does not occur within 30 days, the county probate court would be required to fill the vacancy. The court would have the immediate duty to fill vacant board positions if three or more vacancies occur as a result of a removal decision.
