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Dann V. Ohio Elections Comm., 164 Ohio Misc.2D 39, 2011-Ohio-3945.]

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Dann V. Ohio Elections Comm., 164 Ohio Misc.2D 39, 2011-Ohio-3945.] [Cite as Dann v. Ohio Elections Comm., 164 Ohio Misc.2d 39, 2011-Ohio-3945.] IN THE COURT OF COMMON PLEAS FRANKLIN COUNTY, OHIO DANN et al., : : Appellants, : vs. : CASE NO. 09 CV 11046 : OHIO ELECTIONS COMMISSION, : JUDGE TIMOTHY S. HORTON : Appellee. : DECISION AND ENTRY ON THE MERITS OF THE REVISED CODE §119.12 ADMINISTRATIVE APPEAL AFFIRMING THE DECISION OF THE OHIO ELECTIONS COMMISSION, AND DECISION AND ENTRY DISMISSING APPELLANTS’ APPEAL Entered this 17th day of June, 2011 Donald J. McTigue, for appellants. Mike DeWine, Attorney General, and Damian Sikora, Assistant Attorney General, for appellee. HORTON, Judge. {¶ 1} This action comes before the court upon an appeal of a decision of the Ohio Elections Commission issued by mail on July 9, 2009. The appeal was timely filed on July 23, 2009, by the appellants; i.e., Marc Dann, Dann for Ohio, and Mary Beth Snyder. The appeal was filed with this court pursuant to R.C. 119.12. The record of the administrative proceeding has been provided, and legal arguments have been filed. As set forth below, the decision of the commission is affirmed. Therefore, this court dismisses the appeal of the appellants. STATEMENT OF THE CASE Case No.: 09CVF-07-11046 2 {¶ 2} Appellants appeal from a decision of the appellee. Marc Dann appeals from the following: The commission found a violation of R.C. 3517.13(O) against Marc Dann for the following activities and imposed the listed penalties: 2. The improper installation of a home security system from campaign funds for which the commission determined to impose a fine of $1,000.1 {¶ 3} Dann for Ohio appeals from the following: The commission found a violation of R.C. 3517.13(O) against the campaign committee, Dann for Ohio, for the following activities and imposed the listed penalties: 2. The improper installation of a home security system from campaign funds for which the commission determined to impose a fine of $1,000.2 {¶ 4} Mary Beth Snyder appeals from the following: The commission found a violation of R.C. 3517.13(O) against Mary Beth Snyder for the improper use of campaign funds to pay for the installation of a home security system and imposed a fine of $250. {¶ 5} Appellee has asserted that the findings are factual and lawful. STATEMENT OF THE FACTS {¶ 6} During an audit of campaign spending for the year 2007, the secretary of state discovered expenditures for a security system that was installed at the home of Dann. The expenses were questioned, and a request for additional support was made to appellants. On June 20, 2008, Dann responded to the inquiries. 1 Marc Dann did not appeal the portion of the decision that led to a public reprimand letter for the use of campaign funds to pay for cellphone services. 2 Dann for Ohio did not appeal the portion of the decision that led to a public reprimand letter for the use of campaign funds to pay for cellphone services. Case No.: 09CVF-07-11046 3 {¶ 7} The secretary of state was unsatisfied with the response and asked for clarification or a correction regarding the campaign expenses. Dann responded to that inquiry by a letter dated October 3, 2008, and a second letter dated November 14, 2008. In those letters, Dann indicated that the expenditures met the exceptions in R.C. 3517.13(O)(2). Dann asserted that the expenditures were permissible, legitimate, necessary, ordinary, and verifiable expenses that were incurred in connection with his duties as attorney general. {¶ 8} Having not been satisfied with the responses, the secretary of state filed a complaint with the appellee. The secretary of state named Dann, Dann for Ohio, and Mary Beth Snyder.3 Snyder was a deputy treasurer of the Dann for Ohio committee and signed all of the checks associated with the payments for the security system. Snyder also signed one of the contracts associated with some of the work to be performed regarding the security system. {¶ 9} The appellee held a preliminary hearing on March 19, 2009. That hearing was converted into the final hearing with the consent of the parties. The parties entered into stipulations concerning all material facts relevant to the security system. Therefore, there was no dispute that Dann for Ohio had directly paid for the system and its components, that the system and components had been installed in Dann’s personal residence, and that the system and components still remained there at the time of the hearing. {¶ 10} Having stipulated to the evidence, the parties engaged in oral argument. At no time during the hearing did the appellants ever raise any constitutional issue in regard to the application of R.C. 3517.13. There was also no challenge to the appellee’s jurisdiction. Appellants also admitted during the hearing that there was no precedent in Ohio to justify the expenditure directly made by Dann for Ohio in regard to the installation of the security system. 3 The secretary of state also named Bruce Lev, the former treasurer of the committee, but he was dismissed by the appellee at the hearing. Case No.: 09CVF-07-11046 4 {¶ 11} During the hearing, Commissioner McGee Brown stated the following: I believe that the security system was just beyond improper, and I have some feeling for Mr. Dann and the need to protect his family; however, I don’t know that anybody contributing to a campaign thinks that they’re paying for the installation of a permanent fixture to the candidate’s house. The evidence in the stipulated record confirmed that windows and other fixtures had been installed as part of the $35,000-to-$40,000 security system. {¶ 12} The appellee held that the act of purchasing and installing the security system at Dann’s residence was a violation of campaign finance law. The appellee fined Dann and Dann for Ohio $1,000 each. The appellee fined Snyder $250 for signing the checks. The decision of the appellee was mailed on July 9, 2009. {¶ 13} Appellants filed their notice of appeal on July 23, 2009. The briefing schedule was modified a number of times thereafter. Appellants filed their brief on November 30, 2009. Appellee filed its brief on December 28, 2009, and the appellants filed their reply on January 19, 2010. This matter is now ready for review. STANDARD OF REVIEW Administrative Appeal: {¶ 14} Appellants assert that the decision by the appellee is not supported by reliable, probative, and substantial evidence. Review by this court of an administrative agency, such as the appellee, is governed by R.C. 119.12 and the multitude of cases addressing that section. The most often cited case is that of Univ. of Cincinnati v. Conrad (1980), 63 Ohio St.2d 108, 407 N.E.2d 1265. The Conrad decision states that in an administrative appeal filed pursuant to R.C. 119.12, the trial court must review the agency's order to determine whether it is supported by Case No.: 09CVF-07-11046 5 reliable, probative, and substantial evidence and is in accordance with law. The court stated at 111-112: In undertaking this hybrid form of review, the Court of Common Pleas must give due deference to the administrative resolution of evidentiary conflicts. For example, when the evidence before the court consists of conflicting testimony of approximately equal weight, the court should defer to the determination of the administrative body, which, as the fact- finder, had the opportunity to observe the demeanor of the witnesses and weigh their credibility. However, the findings of the agency are by no means conclusive. Where the court, in its appraisal of the evidence, determines that there exist legally significant reasons for discrediting certain evidence relied upon by the administrative body, and necessary to its determination, the court may reverse, vacate or modify the administrative order. Thus, where a witness' testimony is internally inconsistent, or is impeached by evidence of a prior inconsistent statement, the court may properly decide that such testimony should be given no weight. Likewise, where it appears that the administrative determination rests upon inferences improperly drawn from the evidence adduced, the court may reverse the administrative order. {¶ 15} The Conrad case has been cited with approval numerous times. Ohio Historical Soc. v. State Emp. Relations Bd. (1993), 66 Ohio St. 3d 466, 471, 613 N.E.2d 591, noted Conrad and stated that although a review of applicable law is de novo, the reviewing court should defer to the agency’s factual findings. See VFW Post 8586 v. Ohio Liquor Control Comm. (1998), 83 Ohio St.3d 79, 82, 697 N.E.2d 655. {¶ 16} When the issue concerns the legal interpretation of a code sections, this court is mindful of the following case law: We recognize that generally a reviewing court will not intrude into areas of administrative discretion for the reason that a rebuttable presumption of validity attaches to actions of administrative agencies. Ohio Academy of Nursing Homes, Inc. v. Barry [1990], 56 Ohio St.3d [120] at 129, 564 N.E.2d 686; and Ohio Academy of Nursing Homes, Inc. v. Creasy [(Aug. 16, 1983), 10th Dist. No. 83AP-47], 1983 WL 3652, quoting Country Club Home, Inc. v. Harder (1980), 228 Kan. 756, 763 Case No.: 09CVF-07-11046 6 and 771, 620 P.2d 1140. State agencies and their personnel, acting pursuant to a grant or delegation of authority from the legislature, enjoy reasonable latitude with respect to decisions made within their administrative domain. Ohio State Pharmaceutical Assn. v. Creasy (S.D.Ohio 1984), 587 F.Supp. 698, 704. An agency's interpretation of a statute that governs its actions should be given deference so long as the interpretation is not irrational, unreasonable, or inconsistent with the statutory purpose.
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