What to do if someone files a complaint with the
Ohio Elections Commission.
By: Frank J. Reed, Jr. Esq. (April 2005)

Last November, Ohio was the focal point for our nation's Presidential election. Disputes often arise during the course of a campaign. In Ohio, such disputes are resolved by the Ohio Elections Commission. The Commission consists of 7 members, each appointed to a term of five years. No more than three of the members shall be members of the same major political party. The six members must elect a seventh member who must not be affiliated with either political party.

Members during their term cannot be a candidate for public office or hold public office, cannot serve on a committee supporting or opposing a candidate or ballot issue, cannot serve as an officer on a state or county central committee of a political party, nor be registered as either a legislative or executive agent. In addition, members of the Commission cannot make or solicit contributions on behalf of a candidate, campaign committee, political party, political action committee, or political contributing entity.

The members of the Commission are: Benjamin F. Marsh (R), William D. Booth (D), Catherine Cunningham (R), William Mallory (D), William Ogg (D), and Martin Parks (R), and William Shapiro (I). The Commission may recommend legislation, render advisory opinions, and investigate complaints.

Complaints are commenced when a person files an affidavit, based upon personal knowledge, which alleges a failure to comply or a violation of any provision of Ohio election laws. Upon the filing of the complaint, an attorney employed by the Commission shall determine the nature of the complaint and according to statute must make a recommendation to the Commission for its disposition not later than one business day after the complaint is filed.

If the attorney determines that the complaint alleges that someone made a false statement about a candidate seeking public office or about a ballot issue and the complaint was filed within 60 days prior to a primary or special election or within 90 days of a general election, the matter shall automatically be referred for an "expedited hearing." The attorney may recommend that the complaint receive an expedited hearing if the matter alleges one of the following violations: (1) knowingly concealing or misrepresenting contributions; (2) awarding a contract (except by competitive bid) to an individual for the purchase of goods or services in excess of $500 if the individual has made one or more contributions within a two year period in excess of $1,000 to the holder of a public office having ultimate responsibility for the award of the contract; (3) awarding a contract (except by competitive bid) to a corporation for the purchase of goods or services in excess of $500 if an owner of more than 20% of the corporation has made one or more contributions within a two year period in excess of $1,000 to the holder of a public office having ultimate responsibility for the award of the contract; (4) if the beneficiary of a campaign converts for personal use anything of value outside of the reimbursement for legitimate campaign expenses or collects reimbursement for a legitimate expense while at the time accepting reimbursement for the same expense from another source; or (5) if a candidate for public office or employee accepts anything of value outside of legitimate campaign expenses.

If the complaint alleges any other violation of Title 35 of the Revised Code, the complaint shall be handled by conducting a hearing within 90 days after the complaint is filed, unless the Commission has good cause to hold the hearing after that time, in which case it shall hold the hearing not later than 180 days after the complaint is filed.

An "expedited" hearing is a panel of at least three members of the Commission who determine whether there is probable cause to refer the matter to the full commission for an evidentiary hearing. The panel shall determine either: (1) there is no probable cause to believe a violation of law occurred and dismiss the complaint; (2) there is probable cause to believe a violation of law occurred in which case the full commission must hold a hearing within 10 days; or (3) there is insufficient evidence to determine if a violation occurred and request an investigatory attorney investigate the complaint. The "panel" cannot impose a fine. If the panel dismisses the complaint, the person who filed the complaint may petition the full Commission to "reconsider the dismissal," by filing a request within 2 days. However, if the Commission denies the request, it must order the person who filed the complaint to pay "reasonable attorney fees" as well as the Commission's costs.

If the matter is not scheduled for an "expedited" hearing, any party that is the subject of a complaint must file a response, in the form of an affidavit, on the merits of the complaint within 21 days of the mailing of the complaint. Often the Commission will conduct a "preliminary review." The preliminary review will not include hearing arguments, receiving evidence, or the taking of testimony. If the preliminary review is heard by a "probable cause panel," the panel will either: (1) dismiss the matter; (2) recommend the Commission issue a penalty; (3) find that there is good cause not to impose a penalty; or (4) refer the matter to the appropriate prosecuting attorney. Ohio Adm. Code Rule 3517-1-11.

If the matter is heard by the full Commission, the Commission may either: (1) find that there is good cause not to impose a fine; (2) impose a fine; (3) refer the matter to the appropriate county prosecutor; or (4) direct the secretary of state or county Board of Elections to remove the candidate's name from the ballot. If the allegations are not proven, then the Commission may find that the complaint is frivolous and order the complainant to pay reasonable attorney's fees and the costs of the commission.

If the Commission finds that a violation occurred, the Commission may issue a "public reprimand" or civil penalty. Penalties range from $15 to $1000 per day, depending on the severity of the violation. A Complaint alleging a violation of Ohio election laws must be filed within two years after the occurrence of the act or the failure to act, or within one year after the discovery of such act or failure to act. Once filed, a complaint may be withdrawn: (1) at any time prior to an expedited hearing, (2) at any time after an expedited hearing begins, but only with the permission of the commission, or (3) at any time if the matter does not receive an expedited hearing.

Sometimes discerning your rights and obligations under Ohio's elections laws can be difficult. When in doubt, it is always wise to consult experienced legal counsel or seek a written advisory opinion from the Ohio Elections Commission.