Effort to oust mayor faces legal dispute

4/14/2009

A legal challenge has been lodged against the validity of 45,500 signatures on petitions calling for the removal of Carty Finkbeiner as mayor of Toledo as the Lucas County Board of Elections began the costly and time-consuming process of verifying the signatures Monday.

David Schulz, a former unsuccessful candidate for Toledo City Council, charged in an e-mail to Clerk of City Council Gerald Dendinger that the recall petitions lack language required by state law.

Mr. Schulz contended that the petitions failed to include a key sentence warning petition signers that election falsification is a fifth-degree felony.

He urged Mr. Dendinger to stop the process immediately.

"Your action will prevent the expenditure of an estimated $10,000 to $15,000 verifying signatures on what I believe are fatally flawed petitions," Mr. Schulz said in his e-mail sent on Sunday to Mr. Dendinger.

Mr. Dendinger was not available Monday, but City Law Director Adam Loukx said he was reviewing whether the city charter trumps state law on recall petitions.

"The question is simply whether or not 3501.38 applies to a municipal petition in a charter municipality," Mr. Loukx said last night. "It's an analysis of whether or not our charter addresses all the issues that need to be in the petition."

A group calling itself Take Back Toledo turned in six boxes of petitions on Thursday, two days before the expiration of a 90-day window to submit at least 19,753 signatures of registered Toledo voters.

If the petitions are approved by Mr. Dendinger and the county Board of Elections, city voters would decide in the Sept. 15 primary election whether to remove Mr. Finkbeiner from office with about three months left in his term.

The group maintains Mr. Finkbeiner has been fiscally irresponsible, has driven business away from the city, and has embarrassed the city with his actions.

The mayor has criticized the organizers of the drive as largely living outside Toledo and of being unethical, and has said he would not resign from office. However, he has also not said whether he would seek re-election to a fourth term.

Tom Schlachter, spokesman for Take Back Toledo, said he believes the format of mayoral recall petitions is determined by city charter rather than state law.

"We've had [legal] counsel look at it both before and since this has been raised, and he's confident that we're in compliance with the charter," Mr. Schlachter said.

But John Borell, assistant Lucas County prosecutor who advises the board of elections, said he believes Mr. Schulz's complaint has some merit.

He said the Supreme Court has ruled that all petitions on the ballot must have an election falsification statement spelling out in capitalized, bold-faced type that election fraud is a crime.

The Take Back Toledo recall petition, as found on the group's Web site, warns of prosecution if a person signs the petition more than once, signs a name other than his own, or signs if he or she is not a Toledo voter.

Section 3501.38 (J) of the Ohio Revised Code requires petitions covered under state law to bear the following warning in capital, bold-faced letters: "WHOEVER COMMITS ELECTION FALSIFICATION IS GUILTY OF A FELONY OF THE FIFTH DEGREE."

The city charter, as approved by city voters in 1992, says that the petition shall be accompanied by an affidavit attesting that each signature is genuine and was made in view of the person signing the affidavit.

The board of elections has hired about 30 temporary workers to verify each of the estimated 45,500 signatures. The workers are on the clock from 7:30 a.m. to 11:30 p.m. daily to make sure the signatures are verified by the April 20 deadline, according to elections officials.

Linda Howe, director of the board of elections, said, "If they are going to make them not valid, I wish they'd do something now because I'm spending all this time and money checking signatures."

Mr. Borell said that it's Mr. Dendinger's job to determine if the petitions are valid under the city charter, but he said the board of elections ultimately decides whether to put the question on the ballot.

"The Ohio law says it has to be capitalized and in bold. The Supreme Court has said that is a mandatory provision," Mr. Borell said. "Based on what I've seen now, it appears to me the statute and the cases are pretty clear about it."

Mr. Schulz, a former member of the Republican State Central Committee from Lucas County and an unsuccessful candidate for city council in 2005 and 2006, also said the statement warning of prosecution is required to be printed in red ink.

Mr. Borell said the section of the state law requiring red ink specifically exempts municipalities with referendum and initiative procedures in their charters.

Contact Tom Troy at:

tomtroy@theblade.com

or 419-724-6058.