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Published: Thursday, 4/16/2009

Petitions to remove mayor get needed number of signatures

BY TOM TROY
BLADE STAFF WRITER
Finkbeiner Finkbeiner
THE BLADE/JEREMY WADSWORTH Enlarge | Buy This Photo

The petition drive to remove Mayor Carty Finkbeiner from office has topped the necessary number of signatures to get on the ballot, according to the Lucas County Board of Elections.

As of 11:17 a.m. Thursday, there were 19,827 valid signatures - just a few more than the 19,753 required.

Temporary employees have been examining the signatures until late at night since Monday.

Linda Howe, the county elections director, said the checking of petitions will continue for a few more hours until there are about 20,000 valid signatures. More than 6,000 signatures will remain uncounted for now.

The group Take Back Toledo is trying to put a recall question on the ballot this fall. The question is slated for the Nov. 3 ballot if the petitions receive formal approval from Clerk of City Council Gerald Dendinger and the board of elections.

If the voters approve the recall, Mr. Finkbeiner would leave office with less than two months left in his term and the council president would assume the mayoral duties.

Take Back Toledo has leveled a series of criticisms of the mayor's administration, charging him with being fiscally irresponsible and embarrassing the city.

Mr. Finkbeiner has not responded to the petition drive in recent months, saying he is focusing on balancing the budget and avoiding layoffs.

The story as it appeared in earlier editions of The Blade and toledoblade.com:

A petition drive to force the removal of Toledo Mayor Carty Finkbeiner overcame a legal challenge yesterday as an independent lawyer hired by the clerk of city council gave his legal blessing to the petition documents.

Don McTigue, a Columbus lawyer cited as an expert in Ohio election law, advised the city that the petition was not required to have an "election falsification" warning spelled out in the Ohio Revised Code, as charged in a complaint.

Mr. McTigue also told the city that the recall election must be held at the Nov. 3 general election, not on the Sept. 15 primary, as the recall supporters had hoped. That means Mr. Finkbeiner would leave office with about a month left in his term - if a majority of voters vote yes on the recall.

The lawyer's advice is a legal opinion that does not carry the force of law.

City Council Clerk Gerald Dendinger said he received a go-ahead from Mr. McTigue and notified Lucas County Elections Director Linda Howe about 6:30 p.m. yesterday that the process of verifying up to 45,500 signatures on the recall petitions could proceed.

Brian Schwartz, who led the petition drive by the anti-Finkbeiner group Take Back Toledo, said, "It was a major battle and we're very pleased to have won but it's not over yet."

Mr. Finkbeiner - who has the right to challenge the petitions in front of the Lucas County Board of Elections - did not immediately issue a statement.

Point Place resident David Schulz complained Sunday that the petitions were invalid because they did not have the warning found in state law that election falsification is a fifth-degree felony, in capital, bold-faced lettering.

In an interview with The Blade last night, Mr. McTigue said state law would supersede the city charter's recall procedure only if there was no such requirement in the city charter. The city's recall procedure requires petition circulators to submit a notarized affidavit under penalty of perjury that the signatures were genuine. Mr. Schwartz said each petition was accompanied by such an affidavit.

"State law doesn't trump charter provisions. It's actually the other way around, especially on issues related to local self-government," Mr. McTigue said. "I am very confident in the legal opinion I have reached based on case law from the Supreme Court dealing with municipal charter provisions."

But while Mr. McTigue decided in this case that the city charter was the controlling language, he argued successfully in a 1997 case before the Ohio Supreme Court that the state law was the controlling law.

In that case, he represented a group of citizens trying to force the recall of Portsmouth, Ohio, council members. The court ruled in favor of Mr. McTigue who maintained that the city council clerk had to follow the Ohio Revised Code, and against the clerk who claimed to be following the city charter.

Ironically, Mr. Schulz had cited Mr. McTigue's 1997 case in Portsmouth as evidence for his complaint that state law trumps the city charter.

"I think McTigue is contradicting himself," Mr. Schulz said.

Mr. McTigue said, "It's not contradictory."

After refreshing his memory about the Portsmouth case, Mr. McTigue said the situation was that the clerk of council had allowed citizens to remove their names from the recall petition. He said the Supreme Court agreed with him that the city charter did not give the clerk that authority, and that state law prohibited the removal of signatures from a petition.

"Since the charter did not contain a provision dealing with this subject, then the state law supplemented the provision and the state law prohibited removing names," Mr. McTigue said.

Mr. Schulz said he hasn't decided whether to pursue his complaint, but said it's probably up to Mr. Finkbeiner now.

Mr. Dendinger said he received the same basic opinion on Tuesday from city Law Director Adam Loukx. The clerk was advised by members of council to seek an outside opinion because Mr. Loukx serves at the pleasure of the mayor.

Mr. Dendinger said he had provided a sample of a city recall petition to the Take Back Toledo group and believed all along the petition was valid. The recall provision in the city charter was approved by voters in 1992.

Ms. Howe said the board's attorney, John Borell, an assistant Lucas County prosecutor, would probably not oppose putting the question on the ballot.

Earlier this week Mr. Borell said the Supreme Court has required the election falsification wording in other cases, but he also said the election board defers to the city's interpretation of its own charter.

Ms. Howe said the board likely will finish validating at least 20,000 signatures today, enough to meet the minimum threshold of 19,753 Toledo registered voter signatures, and will report back to Mr. Dendinger on Monday. As of 6 p.m. the Lucas County Board of Elections had validated 17,669 signatures.

Still to be decided is which ballot the question would be on - Sept. 15 or Nov. 3. The Take Back Toledo group has been pushing for the earlier date.

Mr. McTigue said the charter specifies the recall question must be decided in a "regular" election, and he said the city charter always equates a regular election with the November general election.

Contact Tom Troy at:

tomtroy@theblade.com

or 419-724-6058.



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