IN THE COURT OF APPEALS FOR THE TENTH DISTRICT FRANKLIN COUNTY, OHIO STATE ex rel. PROGRESS OHIO.org, Inc. Case number 172 Bast State Street Suite 203 Columbus, Ohio 43215 Relator ar GOVERNOR JOHN KASICH, 77 South High Street Columbus, Ohio 43215 Respondent COMPLAINT FOR PREMPTORY WRIT OF MANDAMUS IN THE FIRST INSTANCE OR IN THE ALTERNATIVE FOR AN ALTERNATIVE WRIT OF MANDAMUS 1. Plaintiff ProgressOhio.org, Inc. (“ProgressOhio”) at all times relevant to the Complaint is a 501(c)(4) organization, recognized by the Internal Revenue Service that was created to provide a progressive voice for Ohio citizens. ProgressOhio seeks to inform and educate the public about progressive ideals, values, and politics in order to provide a more just and democratic society. One of its primary goals is monitoring actions of state government and state officials to insure that laws are followed, insuring transparency in government by issuing criticism of official state actions based on failure 10 follow the law or policy grounds, and keeping the public and a network of over 350,000 members informed. 2. Respondent is governor of the state of Ohio and is responsible for naming a director for each executive department in the state pursuant to R.C. 121.033. On January 7, 2011 Respondent named Mark Kvamme to be Director of the Department of Development and Kvamme continues to serve in that position. R.C. 121.03 (1). The Senate has not yet confirmed him. 4, Kvamme at all times remains a citizen of the state of California. He cannot cast a ballot in the state of Ohio. (Exhibit 1) 5. Section 15.04 of the Ohio Constitution requires anyone appointed to a position considered to be an office meet the qualifications of an elector: § 15.04 Who eligible to office: No person shall be elected or appointed to any office in this state unless possessed of the qualifications of an elector. 6. Inorder to be qualified as an elector, an individual must be a citizen of the United States, eighteen years of age and be a resident of the state for 30 days. Ohio Constitution, Article 5 Section 1; R.C. 3503.01. Kvamme is not a resident of the state of Ohio. 7. The position of Director of Development is an office that requires the appointee be an elector of the state of Ohio. It requires both confirmation by the Senate and an official oath of office. R.C. 121.03. 8. Anofficer of the state must exercise powers conferred by law and prescribed by statute. The position of director of the department of development is specifically created by statute in R.C. 121.02 (N). 9. The position of Director of Development is designated as an office and therefore falls within the language of Ohio Constitution Section 15.04 requiring residency. R.C. 121.03.10. Since Kvamme does not fulfill the requirements to hold an office in the state of Ohio, his appointment is a nullity. 1992 OhOpAtty Gen 21 11, The Ohio Legislative Services Commission has researched this matter and determined that Kvamme cannot serve as director of development. He is prohibited by law to make any decision, sign any documents, or present himself in any way as an officer of the state of Ohio. (Exhibit 2) 12. ‘The Ohio Controlling Board is removing Kvamme’s name from documents coming before that body since his appointment is in question. (Exhibit 3) 13. Merely removing his name from documents is insufficient to cure this nullification, He is still the making policy and other decisions within the agency as the appointing authority. He appeared before the Senate and testified in favor of the JobsOhio bill as Director of Development and influenced the vote due to his position. He is submitting expense reports for reimbursement for costs as the director of development. 14, In order for a writ of mandamus to issue, a Relator must show that (1) he has a clear legal right to the relief prayed for, (2) Respondent is under a clear legal duty to perform the requested act, and (3) Relator has no plain and adequate remedy in the ordinary course of the law. State ex rel. Liberty Mills v. Locker (1986) 22 Ohio St. 34 883. 15, ‘The governor has a clear legal duty to appoint eligible individuals to cabinet positions and to remove anyone who is ineligible. He has a clear legal duty to remove Kvamme from this position pursuant to Ohio law as the Ohio Constitution forbids any one who is not a resident or elector from holding a position of trust for the state. His appointment is a nullity.16. There is no method available in Ohio law other than mandamus to obtain an order. As an organization representing citizens in the state of Ohio, ProgressOhio.org as a clear legal right for the relief prayed for. ‘There is no adequate legal method to obtain a court order requiring his removal and the equitable remedy of mandamus is the only recourse. There is no reason for delay. R. C. 2731.06. A preemptory writ of the first instance is the appropriate remedy here. WHEREFORE: This court should forthwith enter a Preemptory Writ of ‘Mandamus in the First Instance, ordering Governor John Kasich to remove Mark Kvamme from the position of Director of the Department of Development and forbid him to permit Kvamme to represent the state of Ohio in any capacity. In the alternative, relator moves this court to set this complaint on the expedited docketing schedule due to the importance of this issue. Relator prays the court to award them the costs of this action, Respectfully submitted, Victoria E. Ullmann, 0031468 ATTORNEY FOR PROGRESSOHIO.ORG 1135 Bryden Road ‘Columbus, Ohio 43205 (614) 253-2692Page 1 LexisNexis’ 1 of 3 DOCUMENTS (OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF OHIO OPINION No, 92-008 1992 Ohio Op. Atty Gen, 21; 1992 Ohio Op. Atty Gen. No. 8; 1992 Ohio AG LEXIS 1 March 20, 1992 SYLLABUS: ey 1. Pursuant to Article XV, § 4 of the Ohio Constitution, a person must be a resident of the state of Ohio in order to be elected or appointed to @ public office 2. Ifthe Governor appoints a non-resident of the state to an office, as that term is used in Ohio Const. art. XV, § 4, ‘as « board or commission member, the appointment isa nullity, REQUESTBY: LEE FISHER, Attomey General OPINION: The Honorable’ George V. Voinoviel Govemor 77 South High Street Columbus, Ohio 43266-0601 ‘You have asked whether, pursuant to Ohio Const. art. XV, § 4, members of boards or commissions appointed by the Governor must be residents ofthe State of Ohio. If an out-of-state resident may not serve on the board or ‘comission to which such person has been appointed, you also ask whether such appointee is "immediately divested of [the] office, thus creating a vacaney on the board or commission in whieh [he or she serves}?" Only Electors May Hold Public Office Article XV, § 4 of the Ohio Constitution states: "No person shall be elected or appointed to any office in this stare unless possessed of the qualifications of an elector.” (Emphasis added.) State ex rel. Auorney General v, Wilson, 29 Ohio St, 347, [#2] 351 (1876), concluded that a person who is not an elector is "constitutionally ineligible” to hold an office that is subject to the provisions of Ohio Const. art. XV, § 4. Therefore, o hold public office in Oho, one must ‘meet the qualifications of an efector. Electors Must Be Ohio Residents Ohio Const art. V, § 1 sets forth certain constitutional qualifications for an elector:Page 2 1992 Obio Op. Aty Gen. 21; 1992 Ohio Op. Atty Gen, No. 8; 1992 Ohio AG LEXIS 1, #2 Every citizen of the United States, of the age of eighteen years, who has been a resident of the state, county, township, or ward, such time as may be provided by law, and has been registered to vote for thirty days, has the qualifications of an elector, and is entitled to vote at all elections. Any elector who fails to vote in at least one election uring any period of four consecutive years shall cease to be an clector unless he again registers to vote. (Emphasis added.) R.C. 3503.01 establishes statutory residence requirements for voting, as follows: Every citizen of the United States who is ofthe age of cightcen years or over and who has been a resident of the state thisty days next preceding the election at which he offers to vote, isa resident ofthe county and precinet in which [*3] he offers to vote, and has been registered to vote for titty days, has the qualifications of an elector and may vote atall clections in the precinct in which he resides. (Emphasis added.) ‘These provisions clearly establish residency within the state as a qualification of an elector. See State ex rel. Jeers v. Sowers, 171 Ohio St. 295, 170 N.E.2d 428 (1960); 1950 Op. Atty Gen. No. 1870, p. 339. Residency for such purposes is statutorily defined in R.C, 3503.02. nl A person who does not meet the residency requirements of R.C, 3503.02 does ‘not qualify as an clector and, consequently, may not be elected or appointed to any “office” in the State of Ohio. ‘nl Pursuant to B.C. 3503.02, the determination of residence is governed by the following rules: (A) That place shall be considered the residence of a person in which his habitation is fixed and to which, ‘whenever he is absent, he has the intention of retwming. (B) A person shall not be considered to have lost his residence who leaves his home and goes into another sate or county of this state, for temporary purposes only, with the intention of returning, (©)A person shall not be considered to have gained a residence in any county of this state into which he comes for temporary purposes only, without the intention of making such county his permanent place of abode, (D) The place where the family of a married man or woman resides shall be considered to be is or het place of residence; except that when the husband and wife have separated and live apart, the place where he or she resides the length of time required to entitle a person to vote shall be considered to be his or her place of residence (E) Ifa person removes to another state with the intention of making such state his residence, he shall be considered to have lost his residence in this state (F) Ifa person removes to another state with the intention of remaining there an indefinite time and making such state his place of residence, he shall be considered to have lost his residence in this state, notwithstanding the fact that he may entertain an intention to return at some future period. (G) Ifa person removes out of the county to engage in the services of the United States goverment, he stall not be considered to have lost his residence inthis state during the period of such service, and likewise should he enter the employment of the state the place where such person resided atthe time of his removal shall bbe considered to be his place of residence, (8) Ifa person goes into another state and while there exercises the right ofa citizen by voting, he shall be ‘considered to have lost his residence in ths state. ‘As summarized by the court in Kyser v. Board of Elections, 36 Ohio St. 2d 17, 21, 303 N.E.2d 77, 80 (1973), "Whe essence of that statutory definition of residence [R.C. 3503.02] is fixed habitation.’ Habitation’ isPage 3 1992 Ohio Op. Atty Gen, 21; 1992 Ohio Op. Atty Gen. No. 8; 1992 Ohio AG LEXIS 1, *3 defined in Webster's Third New International Dictionary, as'* * * dwelling place: house, home, residence." The ‘court further stated that "R,C. 3503.02 lists two elements which are determinative of residency ~ (1) fixed habitation and (2) the intention of returning to that habitation. Iti the present intention which determines person's residency status..." Jd, af 22; 308 N.E.2d at 80. Thus, temporary absences do not necessarily negate residency. See, eg, 1946 Op. Att'y Gen, No, 764, p. 128; 1924 Op. Atty Gen, No, 1792, p. 525, 526. The fact that an individual lives a majority ofthe time elsewinere may be evidence of which habitation he views as fixed and which he views as temporary. Ultimately the determination of residency is a question of fact based on present intent. See Kyser at 22, 303 N.E.2d at 80; accord 1946 Op. No. 764; 1939 Op. Atty Gen. No. 820, vol Tp. 1048, [4] Whether a person who is nota resident of Ohio may serve on a board or commission depends upon whether such position constitutes an “office” subject to Ohio Const art, XV, § 4. Ifthe Governor appoints a person to a position as & ‘board or commission member and that postion is an “office” within this state, Ohio Const. art. XV, § 4 requires such person to be a resident of the sate of Ohio. See, eg., Thomas v. Board of Trustees, 195 U.S, 207 (1904) (finding ‘members ofthe board of trustees of the Ohio State University to be subject to the requirements of Ohio Const. art. XV, § 4and art. V, § 1), Determination of What Constitutes « Publie Office ‘Your request does not seek my opinion with respect to any specific position, and, as we have discussed, because of the numerous boards and commissions served by members appointed by the Governor, it is not feasible within the scope ‘of an Attomey General opinion to determine whether each such position is an “office” for purposes of Ohio Const. art. XV, §4. However, you have requested a brief summary of the appropriate analysis which must be undertaken in ‘making such a determination. ‘The courts ofthis state have established the [*5] following general test for determining whether a particular position is a public office: ‘The usual criteria in determining whether a position isa public office are durability of tenure, oath, bond, ‘emoluments, the independency of the functions exercised by the appointee, and the character of the duties imposed ‘upon him, But it has been held by this court that while an oath, bond and compensation are usually elements in termining whether a position is a public office they are not always necessary. ... The chiefand most-dectsive characteristic of a public office is determined by the quality of the duties with which the appointee is invested, and by the fact that such duties are conferred upon the appointee by law. If official duties are prescribed by statute, und their ‘performance involves the exercise of continuing, independent, political or governmental functions, then the position is a ‘public office and not an employment. (Emphasis added.) ‘State ex rel. Landis v, Board of Commissioners, 9§ Ohio St. 157, 159, 115 N.E, 919, 919 (1917). tn applying this test, ‘the court has emphasized that "[a) ‘public officer’ as distinguished from an ‘employee’ must possess [*6] some sovereign functions of government, to be exercised by him for the benefit ofthe public, either of an executive, Iegislative or judicial character.” State ex rel. Newman v, Skinner, 128 Ohio St. 325, 327, 191 N.E. 127, 128 (1934) ‘Whether a postion isa publie office must be determined in each case by examining the particular staute and peculiar facts relating to the position, State ex rel. Hogan v. Hunt, 84 Ohio St. 143, 95 N.E. 666 (1911). ‘Thus, it is necessary to examine the nature of the duties performed by each board or commission member and the independence with which those daties are to be executed to determine whether that position constitutes an office for purposes of Ohio Const. art. XV, $4. Based on such an analysis, the following positions have been determined to constitute “offices” subject to the provisions of Ohio Const. art. XV, § 4: trustee of Okio State University (195 U.S. 207 (1904); notscy public (State ex rel. Robinson v. MeKinley, 57 Ohio St, 627, SO N-E. 1134 (1896)); municipal court judge (1975 Op. Atty Gen. No. 75-067); county engineer (State ex rel. Jeffers v. Sowers, 171 Ohio St. 2975, 170 N.E.2dPage 4 1992 Ohio Op. Atty Gen, 21; 1992 Ohio Op. Atty Gen, No. 1992 Ohio AG LEXIS 1, *6 +428 (1960). Similarly, the [*7] following positions have been determined not to constitute "offices" subject tothe provisions of Ohio Const. art. XV, § 4: deputy clerks of probate court and court of common pleas (Warwick v. State, 25 Ohio St. 21 (1874); 1954 Op. Atty Gen. No. 3999); stat librarian (State ex rel. Newman v. Skinner, 128 Ohio St. 325, IDI NE, 127 (1938); fivemen (State ex rel. Monnet v. Jennings, 57 Ohio St. 415, 49 N.E. 404 (1898): clerk of board of county commissioners (State ex rel, Landis v. Board of Commissioners of Butler County, 95 Ohio St. 137, 115 N.E. 919 1917) Effect of Appointment of Nonresident to a Public Office In the event that any board und commission members appointed by the Governor are required to be state residents, you ask whether "Ubese members [are] immediately divested of ther office{s}, thus creating a vacaney on the board or ‘commission in which they serve," if they are not Ohio residents. In addressing the issue of statutory ineligibility to hold office, the court in State ex rel. Attorney General v. Craig, 69 Ohio St. 236, 69 N-E. 228 (1903), concluded in syllabus, paragraph one: "Where the appointment to an office is a nullity, for the [*8] reason thatthe appointee is by statute incligible to such office, a legal appointment to such office may be made, without first ousting such first appointee by proceedings in quo warranto." Similarly, ffa person is constitutionally ineligible to serve as an officer, the appointinent of such person to that office also is a nullity; the appointee never assumes ttle to the office. The effect ofthe appointment isthe same as if no gppointment had been made. See State ex rel. Vian v. Bryan, 30 Ohio L. Abs. 61 (Ct App. Lorain County 1938) (election to city council ofa person who did not possess the statutory residential ‘qualifications to serve as councilman was a nullity; the office he sought was not filed by his election), The fact that an appointment by the Governor is a nullity isnot, in itself, determinative of whether the office to which the appointment was made stands "vacant." If an appointee to a vacant office is ineligible to hold such office, the office remains vacant; however, if at the time of the appointment ofthe ineligible candidate the office was held by a legally qualified individual, such person may, depending on the circumstances, continue to serve [*9] in such office. As stated in State ex rel. v. MeCracken, 51 Ohio St. 123, 129, 36.N.E. 941, 943 (1894): "In contemplation of law there ‘can be no vacancy in an office so long as there is a person in possession of the office legally qualified to perform the duties." Thus, there may be situations where the office to which an ineligible person has been appointed is still in possession of another person who is legally qualified to perform the duties ofthe office as, for example, where an officer continues to hold over his term. See, e.g, R.C. 3.01 (“a person holding an office of public trust shall continue therein until his successor is elected or appointed and qualified, unless otherwise provided in the constitution or laws of this state"); .C. 105.21 (member ofthe state board of uniform state laws "shall continue in office subsequent tothe expiration date of his term until his successor rakes affce, or until a period of sixty days has elapsed, whichever occurs frst" (emphasis added)), Where there is no person in possession of an office and legally qualified to perform the duties of the office, however, the office to which an ineligible person has been appointed [*10] stands vacant. Based on the foregoing, itis my opinion, and you are hereby advised that: 1, Pursuant t0 Article XV, § 4 of the Ohio Const be elected or appointed to a public office. 1, @ person must be a resident of the state of Ohio in order to 2, If the Govemor appoints a non-resident of the state to an office, as that term is used in Ohio Const. art. XV, § 4, asa board or commission member, the appointment is a nullity Legal Toples: For related research and practice materials, se the following legal topics: GovernmentsCourtsClerks of CourtGovernmentsLocal GovernmentsGeneral OverviewExhibit 13/2011 “sk ERTRADE ORS, ES Wilner tomar 1 Ricses ninety 7 Term Sheet ‘The atest on private eauty, MBA, deals and movements — ron Wail Street oSilcon Vey Silicon Valley VC heads for Ohio to create jobs icKvanme is stopping don a8 9 genera penner wah Sequoia Capi arguably the nation's op venture capital frm, order to take on pubic service rae One Kvamee vil bacame interim director of the Ohio Department of Development, where hel be charged vith ransorming he satered agency no pve jobs development organization Hs salary il beast $¢ “The Columbus Dapatch reports that Kvarme longtime tend of naming Ohio Governor John Katich, uho appointed Kvarre to the poston, ‘Aso worth noing that Ohio eampaign finance records show hat Kvamme contributed over ‘$44,009 to Kasicn's campaign, plus another $24,000 to the state's GOP campaign commits, Iti be interesting to aes how Kwame manages to rans Seon Val to Ohio, at last or the short tinea expected tobe ot there. Again, ts san norm postion that ony is expected to let between four and five months | oreaiiod Kame to ask het rtum to Sequoia ones the Oo gi is over, and he respanded afirmativey (tbe 2s special ted parma” now postion that Kamm eays wl be ulin). ‘varme's investment porto wth Sequois cludes Linkeln,AdBrte, Funny or Oe ‘SrongMal nd Congo cnn.com/../silicon-valley-ve-heads-for- Silicon Valley VC heads for Ohio to create. Dan Primack uinckew sem Vnicreats | og Fallow @aarprmacon Tse Ne 25711 + biased a Rea TViorme battler ou Spe equy pos wh Hod Dcamerenyy hata Sorupnoet wa3/3/2011 craproneammestic even «0 18 Penny Stock Jumping 3000% ‘Syrup he wise poy sock notte or te ota ‘ih neeons eee ‘Top Stock for 2011-150 se Senter com Sotee. Rare Oppo ‘20 NOT Buy Car neurance! ‘rt nets Te, Obey is aang Hck genome seep ae! Neovo .cnn.com/../silicon-valley-ve-heads-for- Silicon Valley VC heads for Ohio to create. Contributors Colin Euro hawks fosst Barron dolar ban Distressed aiva €e) Primack Reality TVfor me but Tonsresr Rot for you Katie Lets try this again: PE Benner Mortgage bond fatings return ‘wth serutiny Scott What Charlie Crist, Cendroweki wants with St. Joe Dutt sec charges Rel SP Medonata Gupta as insider 7 ‘wading bust widens Heageye fear rade: How 6 couldteasto ‘Alan Two governors. Two Sloan parties. One solution, af \Nio-Hal its time to ond the Teengparly of easy money Shawn The budget Tully” for dummies ~ Becky Uncle Sam: Jacking up Qbiek your sirtare Markets cages aa ae soniteacny aS Seomors py Saas Spormoretines ny Stock Jumping 3000% Sprpiotes tnd pearystcknewsleterfortes dae ‘Top Stock for 2011-180 Despert Sah For Rae Cath Mere Sted Rare Orpen “Today Only $87.99 §9 Samsung HOTY ‘Smartphone Penny Sa Gata acerye Par 3Ghom AAT erated ime ony 2BSilicon Valley VC heads for Ohio to create. Most Popular \Paapres sashes are (a2 Te arate weigh nM Contesiog of aac anther ore «Faget 100 $100 anneal e 5 Stow Josey tetas re > Wate tend ne para eneymonoy re ‘ost ir Companies: Anew wai Hoe » Yang, Geek ane unempoyes ore (Pa 2:Tredewtom Boa More ‘Connect with Fortune botcsrad Frets anbaeeterk Sign vo ts enna SESS cntanunenagss Peruneraganne oe cenn.com/../silicon-valley-ve-heads-for- 3BExhibit 2Ohio Legislative Service Commission ‘Mark Pander, Director | House mewsens SENATE MEMBERS | war. Btcheder, Speaker ‘Thomas. Niehaus, President ay Goya Stephen Buster Tom Sawyer cia. Gronsman Gews-care —Kaschtng St timen erase Memorandum 129-0545 To: The Honorable Armond Budish Ohio House of Representatives From: Lynda J. Jacobsen, Staff Attorney Date: February 18, 2011 Subject: Residency requirements for Director of Development You recently requested information regarding whether the Director of Development is an "officer" under Article XV, Section 4 of the Ohio Constitution, and thus subject to the residency requirements applicable to state officers. You also asked when a person would need to establish residency in order to become a state officer. Residency requirements of state officers As you know, Article XV, Section 4 of the Ohio Constitution prohibits a person from being elected or appointed to office unless the person possesses the qualifications of an elector. The qualifications of an elector are as follows:' Citizen of the United States; + Aged 18 years or more; * A resident of the state, county, township, or ward for 30 days preceding the election at which the person offers to vote; and + Registered to vote for 30 days. Thus, any “officer” must be an Ohio resident who is registered to vote in Ohio. Test for determining whether a particular position is an “office” Although the Ohio Constitution requires a person elected or appointed to office to be an elector (and therefore a resident of Ohio), the Constitution does not specify what positions may be considered to be offices, and thus subject to the residency requirements. In a series of cases considering whether specific governmental positions are "offices," the Ohio Supreme Court has developed a test for determining whether a particular position is an “office” subject to Article XV, Section 4 of the Ohio Constitution. To make the determination, the specific details of the particular position must be considered. Some of the criteria that the Court has used in determining whether a | Ohio Constitution Article V, Section 1, and R.C. 3508.01 Vern Rite Conter a 77 South High Stet, Ninth Foor Columbus, Oho 43215-6128 Telephone (614 466-0615 "wane leetateohueRepresentative Busish February 18,2011 Page2 position is a public office include whether the person is responsible for taking an oath or providing bond, the independence of the functions exercised by the person, and the character of the duties imposed on the person. In addition to these general considerations, the Court has considered a single characteristic to be most determinative”: The chief and most decisive characteristic of a public office is determined by the quality of the duties with which the appointee is invested, and by the fact that such duties are conferred upon the appointee by law. If official duties are prescribed by statute, and their performance involves the exercise of continuing, independent political or governmental functions, then the position is a public office, and not an employment. Based on this test, it seems likely that the position of Director of Development is, an office for the purpose of Article XV, Section 4 of the Ohio Constitution. ‘The Director must take an oath of office and give bond, with security.» More importantly, for the purpose of the test, the director of each state department, including the Department of Development, is required by law to "exercise the powers and perform the duties vested by law in such department."* Since the duties of the Director of Development are prescribed by statute, and since those duties involve the exercise of continuing, independent, governmental functions, it seems likely that the position of the Director of Development is an office for the purpose of Article XV, Section 4 of the Ohio Constitution. Timeline for a person to become a resident, in order to become an officer Article XV, Section 4 of the Ohio Constitution states that, "No person shalll be elected or appointed to any office in this state unless possessed of the qualifications of an elector." ‘The status of the person as an elector, and thus as a resident, is a qualification for office. A person must be an elector in order to be appointed to an office. In considering this issue, the Ohio Attorney General has opined, that* if a person is constitutionally ineligible to serve as an officer, the appointment of such person to that office also is a nullity; the appointee never assumes title to the office. The effect of the appointment is the same as if no appointment had been made. = State ex rel. Landis 8. Board of Commisiones, (1917) 95 Ohio St. 157,159 PRC.LM. (RC 12102 +1992 Ohio Op. Atty Gen. 21‘Roprosontative Budish February 18, 2011 Pages Based on the constitutional language and the Attorney General opinion, it appears that a person must first be an Ohio resident before the person can be appointed to an office. When does a person become a resident for the purpose of appointment to an office As previously mentioned, the statutory definition of "elector" requires a person to have been a resident of the state for 30 days immediately preceding the election at which the person offers to vote.’ The statute does not directly address the question of establishing residency for the purpose of appointment to office. Thus it is unclear how a court might interpret the residency requirement, if a person was appointed to office before the person voted in an election in Ohio, and that person's appointment was subsequently challenged. ROSES 129 docer RC. 3503.01,Exhibit 3Gongwer News Service - Ohio Page | of 2 oRUiow | AbatGeroer | George | Conse ny ar, 08 Los" aG ONGWER News Service Ohio The Record of Capitol Square Since 1908 ome | My Gangaer | News Arehves | Losinleion | Schudlee | erie | acon oes | Reasuces | RESED | Totar [econ asny nach sk RP | i ai Names New OYS Ch Hapa To Succeed Saar ‘Special Uodate, Tuesday, March 1, 2031, 03:22 PM Collective Bargaining Amendment Bans Public Employee Strikes, Sets | SARE... range | ‘Special Undate, Tuesday, March 3, 2033, 0:11 AM Ohio Supreme Court Sets Three Execution Dates Ohio Report for Monday, February 28, 2014 House Activity Report Subscribe or Requests Pree Tia to ee more Progressives Assail GOP Bargaining Bill; Capitol Braces For Protests As Senate Panel Votes; Statehood Day Canceled ‘now posresive nnktane as sat Monday wins aa at concuded a | ineauleor wc he Sea nexpesed owe Mk week otecaay aver aso woigh Lasumnaneoua a Covi ‘he heart of collective bargaining" for pube workers. 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House Panel Considers Adding l Mowat Registration, Shortened Absonteo Public Works Funding To Voting Period ‘Transportation Budget Saying e hoes to vith money fer Oho Public Werks Sve money an Commission aswvetre proj sotto Improve cantaence in xpos yeor mamoars ofa House Ohot electors pana are corsioring oo8ng canta: fystem, Sacra of Exeropeaion othe agency's Sond: Site Jon Hsia beck programs ‘Serouneed enday Several eglave ports he would eo ‘he Genera Assert ottge Kvamme Residency Cloud Porter Named To PUCO Seat; AEP Prompts Bard To Change Files Distribution Case Sponding Request ee ‘Atigatve pant Monsy proves ur Many paris fpenangrecuntswonh cance; Gahanna ary Arde HF Ten tome Ovo Deparentot Pores anunsig Deracpmen sr reaora erame Yaesu ‘ow vector Mare Searsne nthe ‘tes Conmisen ocumenisoverconeems abouts Oh. ensstonalresconcy sais kkasich Appoints Petro AS ‘Another Busy Weok Shaping Up Chancellor AtStatehouse ‘Gov Jotn Katich on ‘Senate Repuicans wa sey pats thie Nonday sported Jn ‘ntoversal pan a ou cece Peto he mer stgang igs ths woos, ut at soy {ne tam on aby legsatveschecle {fat on et nets es he Kaien ‘aniston propares uate ‘erecuve budge byte Mar 18 deadine, seen ean Seance Also In The Monday Report Capitol Scone: Froment Named Insurance Dept. Administrative Officer; Health Agencies Announce Legislative Team From Congress: Brown To Reintroduce Clean Energy Tax Credit Bil Boehner On Budget http://gongwer-oh.com/programming/index.cfim loc 3/1/2011Volume #80, Re jonday, February 28, 2014 KVAMME RESIDENCY CLOUD PROMPTS BOARD TO CHANGE SPENDING REQUEST A legislative panel Monday approved four spending requests worth a combined $17.7 million from the Ohio Department of Development after replacing the name of new Director Mark Kvamme on the documents over concerns about his constitutional residency status. ‘The seven-member Controlling Board unanimously approved the items after agreeing to substitute the names of an assistant department director, and the agency's interim chief legal counsel, for that of Mr. Kvamme. Rep. Clayton Luckie (0-Dayton) initially suggested deferring action on the requests, the largest of \which involved an internal transfer of $16.8 million in Ohio Third Frontier Research and Development funds, due to questions about Mr. Kvamme's eligibilty to serve, “I think we should defer those until we get further clarification back from the attorney general before we vote on these,” Rep. Luckie said. He also questioned whether funds the board released at previous meetings, before the residency matter surfaced, should be distributed pending resolution Rep. Jay Hottinger (R-Newark) countered that the department had submitted "very standard” funding requests, "We're dealing with issues pertaining to the acquisition of new machinery and equipment for private businesses and other items associated with expansion projects. One of them is dealing with Ohio Third Frontier," he said. "I dont think in ... this climate do we want to go down the path of deferring or slowing down ... economic development in the state of Ohio. I just don't think that's wise or prudent,” Rep. Hottinger said, Rep. Luckie urged caution to avoid causing potential problems for grant recipients depending on a final ruling about Mr. Kvamme's authority. "Why put a business in jeopardy? All 'm saying is make sure the authority is there," he said. House Minority Leader Armond Busish (D-Beachwood) last week sent a letter to Gov. John Kasich expressing concern that Mr. Kvamme's status as a California resident jeopardized his eligibility to serve as development director, chairman of the Third Frontier Commission, and the head of JobsOhio. ‘The Ohio Constitution states no one may be appointed to any public office in the state unless they have the qualifications of an elector. State law requires residency be established 30 days before being eligible to vote. Rep. Budish cited a Legislative Service Commission research document, and a 1992 attorney general opinion, which held that a governor could not appoint someone who is not eligible to hold office.Board President Randy Cole, who represents Gov. Kasich’s administration, suggested the amendment in response to comments of department officials about advice from Attorney General Mike DeWine's office on use the substitute signatures. State Pays: Separately, the Controlling Board approved the release of $1 milion to pay for farmland that was subjected to additional or different levels of flooding from Grand Lake St. Marys as a result of the Department of Natural Resources’ construction of a spillway in Mercer County. Overall, the state could face a combined payout to landowners of almost $8 milion. Monday's release involved the second of five plaintiff groups whose property Mercer County ‘common pleas court found was subjected to flooding. ‘The board in December approved the release of $203,872 to the first landowners’ group. Monday's request represented a payment of $1.2 million to the second plaintiff for state taking of property. ‘Three remaining cases await trials tentatively set for March, April, and May. CODNR said that based on amounts the plaintiffs’ requested, the remaining settlements could potentially exceed $3.5 milion. “There Is also a similar case that is currently in appeal that has a potential settlement that would not exceed $3 million," the department said, Property owners said that with no end in sight to the flooding, they wanted courts to order the state to pay them for taking a permanent flowage easement across their land. ‘Acting on other agenda items, the Controlling Board: Hilton-Easton: Waived competitive selection for an $80,000 Ausitor of State contract with the Hilton Columbus at Easton Town Center to provide meeting space and catering for the 11" annual conference on fraud investigation and prevention. The conference drew over 640 public and private professionals from 12 states last year. The board approved the request on a vote of 6-1 (Luckie). Sinclair Land: Approved a request from Sinclair Community College for the $366,400 purchase of 26 acres of real estate in Montgomery County from Donald Farra for an addition to the college master plan. The price was set as a result of jury trial. Mr. Farra had sought $536,000 for the property, which is north of Sinclair's Automotive Center. "Because Sinclair is land locked due to its location in downtown Dayton, the board of trustees approved the acquisition of properties in the Bank Street area to allow for the future development needs of the college," the board was told. Securities Probe: Authorized the Department of Commerce to spend $850,000 for the Division of ‘Securities to complete an ongoing criminal investigation. The department said the revenue already has been received as a result of a settlement reached in a separate enforcement case. "The criminal investigation requires significant accounting and electronic data analysis that cannot be completed with internal agency resources. (The) amount requested will be used to fund remaining forensic. accounting work as well as trial preparation and trial testimony," the department said.Prisoner Payment: Approved the payment of $41,907 to Carlos Roche for damages resulting from his wrongful imprisonment for 241 days. A settlement agreement approved through the Ohio Court of Claims provides for the state to pay Mr. Roche $31,170, and his attorney $10,737. Washington Contract: Waived competitive selection for a $154,971 Department of Job and Family Services contract with Child Trends, Inc., of Washington, D.C. The company is to conduct a statewide child maltreatment needs assessment and related program evaluation services for the Ohio Children's Trust Fund. A request for proposals was sent to 18 research organizations and Ohio's public universities. Of the six proposals received, only one was from an Ohio company, Justice Research & Advocacy, Inc., in Amherst. Washington Contract #2: Waived competitive selection for an $82,041 Department of Developmental Disabilities contract with the American Association on Intellectual Developmental Disabilities in Washington, D.C. to provide assessment services for persons with developmental disabilities. The department said the association created, and is the sole source vendor, for use of an assessment instrument that measures the intensity of supports a developmentally disabled person needs to fully participate in community life De-Bug: Waived competitive selection for a $100,139 Deparment of Public Safety contract with a Tennessee company for supplying technical surveillance counter-measure equipment and a 10-day training course. The equipment detects audio listening devices in buildings and areas where sensitive information is discussed. Current equipment the State Highway Patrol is using was bought in 1998 and no longer is dependable. idrawn: Two requests were withdrawn at agency request. One (#2) was from Bowling Green ‘State University; the other (#38) was from the Department of Rehabilitation and Correction, College Land: Reconsidered and approved a request from Lorain Community College to buy 6.8 acres of vacant land in Lorain County for $1.8 milion, from the Lorain County Community College Foundation, for the purpose of building a three-story education outreach center with at least 200 parking spaces. The college proposed to borrow money through a bond issue tentatively scheduled in May. The board deferred the request Jan. 31 because it appeared to be discretionary spending Unrelated to job creation. Senate Finance Chairman Chris Widener (R-Springfield) indicated he was satisfied with the college's subsequent explanation.