Yesterday, my complaint to the Ohio Election Commission was dismissed. The three members of the panel — Chuck Calvert, John Mroczkowski, and Harvey Shapiro –acting on the recommendation of the OEC’s Executive Director, Philip Richter, were unanimous in their decision. The panel found that there is no probable cause to believe that, in Kettering’s renewal levy campaign, Ohio Revised Code was violated. The panel meeting was held in Columbus.

Donna Dixon played the part of Maureen Dean iin Oliver Stone's film, "Nixon."

My complaint, that the panel dismissed, was that the Kettering School levy committee got carried away and, in its zeal to spur public support for the levy, and in violation of Ohio Code, made statements that were false. But, according to the OEC panel, the statement that I cited as a false statement “There will be absolutely no increase in taxes as a result of this Renewal Issue,” is actually a true statement. Yikes, how could I have been so wrong? The panel said the statement is true, regardless that individual taxes will increase, because the statement can be understood to mean, “There will be absolutely no increase in the total amount of taxes collected as a results of this Renewal Issue.”

The Kettering Superintendent, Robert Mengerink, made the statement that was the focus of my OEC complaint in “The Blue Ribbon Report.” Dr. Mengerink did not appear at the hearing, but, he was aptly represented by a pert, dignified young woman, out of an Oliver Stone movie, who reminded me in her appearance of a young Maureen Dean. She is Miranda Motter, an attorney with the Columbus law firm, Bricker and Eckler. Ms Motter provided the panel with a seven page memorandum of legal argument. It makes for interesting reading. I’m posting it here as a PDF file. She also provided an affidavit of statements made by Dr. Mengerink — posted here.

In the memorandum, Ms Motter gives a lawyerly explanation of what makes a statement true or false. Motter writes (p.3), “A statement is not false where, even though it is misleading and fails to disclose all the relevant facts, the statement has some truth in it. Moreover, a statement that is subject to different interpretation is not ‘false.’”

The problem is, a statement that is misleading and that fails to disclose relevant facts is not the kind of statement that builds trust or that builds a long relationship. My point, that I tried to make to the OEC panel, is that a school district cannot reach its potential without public support, without public trust, and a public cannot be expected to support a system that misleads it. The temptation for a school district in a levy campaign to cheat, particularly in a renewal levy campaign — by withholding information or by giving misleading information — is great. The stakes are high. But this cheating, at best, makes only a short term gain for the school system and in the long term causes an erosion of public support. The Kettering case, I argued, was clear cut and provided an opportunity for the OEC to put all districts in Ohio on notice about how they should advertise renewal levies.

Ms Motter included in her memorandum this sentence, “To determine whether a statement is in fact false, courts utilize an objective standard, using the perspective of a reasonable reader.” I like the idea of a “reasonable reader,” and in my presentation to the panel I urged the panel to consider these facts from the perspective of a reasonable reader:

1. The 6.9 mill levy had an effective tax rate of 6.9 mills when it was approved in 2004.
2. In 2004 Kettering’s property tax base, when taxed at a rate of 6.9 mills, produced $8.2 million in revenue.
3. In 2005, 2006, and 2007, Kettering’s tax base increased and, in order to raise $8.2 million in revenue, but no more, each year the effective tax rate was reduced.
4. In 2008 the effective tax rate for this levy was 6.13 mills.
5. But then the economy contracted, businesses and industry moved out of Kettering and the total tax base decreased. In order to generate the $8.2 million, the effective tax rate was increased to 6.16 mills.
6. Kettering property owners, because of this effective rate increase, from 6.13 mills to 6.16 mills, had an increase in property tax of three cents for every $1000 of taxable property.
7. Next year, because the total property valuation in Kettering has contracted even more, in order to raise the $8.2 million, the effective rate for this levy will increase again, from its current rate of 6.16 mills to probably 6.19 mills or more, and property owners, again, will see an additional increase in their property tax.

I thought that if the panel would take the point of view of a reasonable person, the statement, “There will be absolutely no increase in taxes as a result of this Renewal Issue,” would have to be seen as a false statement. Since a trend has already been established that this effective rate has increased, and since the conditions that caused this increase have worsened, it seem clear to me that it’s wrong to promise that this Renewal Issue does not pose a probable new tax liability to the taxpayer. But I failed to make that case.

I thought this aspect of the case, showing the statement to be false, would be the easiest part of the case to make, and that the reason my complaint would likely be dismissed would be some technical basis.

I’m surprised that this OEC panel, in its comments to me, seemed unconcerned that it is giving a green light to whatever exaggerated phrase a levy committee in Ohio might seek to use to promote a renewal levy. Kettering’s renewal levy promulgated big statements — “ZERO Increase In Taxes,” “Not a Penny More In Taxes,” “Absolutely no increase in taxes” — all not true. Because of the economic downturn, in order to generate the levy’s set amount, property taxes in Kettering, sufficient to fund this levy, in fact, will need to increase.

I stayed to hear the second case presented to the OEC panel and in this case the situation was reversed. In the second case, the Complainant was a school superintendent and the Respondent was a citizens group STOW CITIZENS FOR RESPONSIBLE GOVERNMENT from a community called Stow, in Summit County. This citizens’ group has a web-site with statements that the superintendent believes violates Ohio Law. One statement on the web-site says, “SUPERINTENDENT AND SCHOOL BOARD ABOUT TO DESTROY SCHOOL DISTRICT!!!” This is not the statement at the focus of the complaint, but, I imagine, gives the flavor of the dispute.

This Stow citizen’s group falls under special regulations because it was organized as a political PAC, and political PACS are governed by certain regulations. I don’t understand the legal basis for the Stow School Superintendent bringing a complaint to the OEC concerning this Stow citizens’ group. But after some discussion, the OEC panel, again followed the recommendation of their Executive Director. The panel members unanimously agreed — but this time the decision was opposite of the decision in my case. In the second case the OEC panel voted to find probable cause. The Stow citizen’s group now must defend themselves against the superintendent’s accusations before the entire OEC panel.

I was struck that in both cases, only one side was represented by an an attorney, the school district’s side. In both cases, the OEC panel sided with the school district and against the citizens.

Yesterday, I expressed my concern that my complaint to the Ohio Election Commission (OEC) might be dismissed on technical grounds. Today, I had a telephone conversation with Executive Director of The OEC, Philip Richter, and he gave me encouragement that my complaint will not be summarily dismissed.

My complaint centers on a statement made by the Kettering School Superintendent, Robert Mengerink — “There will be absolutely no increase in taxes as a result of this Renewal Issue” — in “The Blue Ribbon Report,” a newsletter sent to all Kettering households.

“The Blue Ribbon Report” contains no “Paid for by” disclosure that would identify it as official campaign literature. Mr. Richter assured me that, regardless of what I read here, the Commission has the authority to consider material to be “campaign material,” regardless that the “Paid for by” disclosure is missing from the material.

I believe it is fair to consider the Spring, 2009, issue of “The Blue Ribbon Report” as “campaign material.” I requested, and Mr. Richter agreed, that this additional document be added to my original complaint letter.

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