My Complaint To Ohio’s Election Commission Might Be Dismissed Based On Definition Of “Campaign Material”

This Thursday, July 16, I will meet in Columbus with a panel of members from the Ohio Election Commission (OEC) in a probable cause hearing. If the panel agrees with me, that there is good reason to believe that the Ohio Revised Code overseen by the OEC has been violated, then a formal hearing with the entire OEC will be scheduled. (I’ve previously written about this complaint here, here, here, here, and here.)

I’m now pessimistic about the outcome of this probable cause hearing, because, if what I read is accurate — “The OEC’s authority only extends to official campaign literature” — I’m thinking my complaint is likely to be dismissed as not meeting OEC requirements.

My complaint says that The Kettering School Superintendent, Robert Mengerink, violated Ohio Law when he promulgated a false statement — “There will be absolutely no increase in taxes as a result of this Renewal Issue” — with the purpose of influencing the outcome of Kettering School’s 6.9 mill renewal levy. Voters approved the levy in a special election held on May 5.

I decided to focus on Dr. Mengerink because, I feel, as CEO of the school district, he has a unique responsibility. But, I now see that citing the entire Kettering Board of Education would have made for a stronger case.

I’m worried that the OEC panel may dismiss my complaint because Dr. Mengerink’s statement appeared in the district newsletter, “The Blue Ribbon Report,” rather than clearly marked “campaign literature.” Kettering’s Board of Education, as a group, on the other hand, published letters clearly marked as paid for by “Citizens for Kettering Schools,” and had I centered my complaint simply on the members of the Kettering board, this question of what defines “campaign literature” would not be a concern.

The Revised Code says (emphasis added),

“No person, during the course of any campaign in advocacy of or in opposition to the adoption of any ballot proposition or issue, by means of campaign material, including sample ballots, an advertisement on radio or television or in a newspaper or periodical, a public speech, a press release, or otherwise, shall knowingly and with intent to affect the outcome of such campaign do any of the following: Post, publish, circulate, distribute, or otherwise disseminate, a false statement, either knowing the same to be false or acting with reckless disregard of whether it was false or not, that is designed to promote the adoption or defeat of any ballot proposition or issue.”

The complaint I wrote, I believe, succeeds in showing that Dr. Mengerink knowingly disseminated false information, designed to promote a ballot issue. Dr. Mengerink clearly was wrong when he used the phrase, “absolutely no increase in taxes.” But what I didn’t consider in writing the complaint, is, in order for this OEC panel to find probable cause, it may need to find a way to define “The Blue Ribbon Report” as “campaign material.” Such a definition might be impossible, if, in order to qualify as “campaign material” the material must contain the usual disclosure, something like, “Paid for by (the name of the Campaign Committee). “The Blue Ribbon Report” had no such disclosure.

But, if the OEC panel, charged with determining probable cause, has discretion in how it defines “campaign material,” then my complaint has a chance. I imagine it would be easy to establish the fact that the Kettering Campaign Committee controlled the content and the timing of the Spring Issue of the Report. It is not accidental, for example, that the lead headline for the Report is identical to the slogan promulgated by the Campaign Committee. The chair of the Campaign Committee, Jim Trent, is also chair of Kettering’s Board of Education. Of course, the purpose of “The Blue Ribbon Report” was to influence, to persuade. From a dictionary point of view, the Report was Campaign Material, regardless that it lacked the “Paid for by” disclosure.

Tomorrow I intend on posting a draft of my comments I intend to make to the OEC panel at the probable cause hearing. I will attempt to show that “The Blue Ribbon Report,” published a few days before the election, clearly was meant to serve as campaign material. It quacks. Like a duck. If the probable cause panel agrees that the Report — sent to all Kettering households only a few days before the election, with a leading headline “Renewal Issue on May 5 Ballot Means Zero Increase In Taxes For Kettering Voters” — qualifies as “campaign material,” then my complaint can go forward.

If my complaint concerning Dr. Mengerink’s statement in “The Blue Ribbon Report” is dismissed, I will consider submitting a new complaint that will cite each of the Kettering Board of Education members based on a letter signed by each mailed to Kettering voters that said, “Approval of Issue 12 will not raise your taxes one penny.” The letter is clearly marked, “Paid for by Citizens For Kettering Schools, Jim Trent, Treasurer,” so it would easily meet the criteria of “campaign material.”

The principle I see worth fighting for is the principal of local control. There can be no local control if voters do not have easy access to good and appropriate information. There can be no local control, if voters are given misinformation. Election of school board members is a most fundamental expression of grassroots democracy. Three of the five members who signed that letter, saying “not a penny more,” are running for reelection to the Kettering Board this November. These candidates each need to explain what the principle of “local control” means to him or her.

See accompanying article: here

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5 Responses to My Complaint To Ohio’s Election Commission Might Be Dismissed Based On Definition Of “Campaign Material”

  1. Eric says:

    If my complaint concerning Dr. Mengerink’s statement in “The Blue Ribbon Report” is dismissed, I will consider submitting a new complaint

    Why not first ask the levy committee to seek an advisory opinion?

    The principle I see worth fighting for is the principal of local control.

    Too late. The new budget allows Ohio’s Supreme Leader to make appointments to the newly-formed Guardian Council of Public Education. They, in turn, will ensure strict accountability for education spending in your district.

  2. Mike Bock says:

    Eric, at this point, I don’t think that the levy committee would have any interest in seeking an advisory opinion. I’d like to know more about what is in the new budget — that you refer to as the “Guardian Council of Public Education” — do you have a link address? But, the fact is, local boards have a lot of authority. It’s just that local boards rarely, if ever, seek to assert much of the authority that they have and, instead, surrender local control to the educational establishment. These comments, by retiring NEA bigwig, Bob Channin, are worth contemplating.

  3. Eric says:

    I don’t think that the levy committee would have any interest in seeking an advisory opinion.

    So? Give them the option. The time will come when they run another replacement levy. An advisory opinion provides guidance they would want before the fact. Wny be adversarial?

    Google this (with quotes): “Ohio School Funding Advisory Council” or this “Ohio School Funding Research Advisory Council.”

  4. Joe V says:

    What ultimately happened with your complaint? If they issued a written opinion, please post a link.

  5. Mike Bock says:

    Joe V, thanks for asking. My complaint was dismissed in the preliminary hearing. I give details of what happened here: OEC Says “Absolutely No Increase In Taxes” Is Not A False Statement — Dismisses Kettering Complaint, By Mike Bock, on July 17th, 2009

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