Monday, November 22, 2010

The Indicted Auditor, the Dragon Lady, the Carpetbagger, the Careless Notary, and Columbo

"Let me get this straight, Mr. Wisniewski. You say you live in McDermott but because the notary didn't explain you put  your John Hancock on the wrong line of the affidavit of the petition you circulated in Portsmouth  to recall the first female mayor in its history and that the recall was begun by the ex-police chief who totaled two vehicles in the middle of the day but was not given a breathalyzer test and was later indicted as city auditor because he  used public funds to repair his automobile and that the city clerk, known as the Dragoness, says everything is copacetic. Is that what you're saying?"

In my previous post, I pointed out that Portsmouth’s loopy Home Rule charter encourages  shenanigans, particularly in regard to recall elections. I argued that the recall process should be no less carefully regulated than a general  election.  Instead, the current attempt to recall Mayor Murray is  so sleazy and discombobulated that it makes  a mockery of democracy. It starts with disgraced former indicted city auditor Tom Bihl, who initiated the recall, and includes the carpetbagging Ralph  Wisniewski, who does not know where to put his John Hancock. Wisniewski is the husband of the drug store heiress Julia Smith Wisniewski, who was the chairperson of the Marting Brothers Company, and also of its successor, the notorious  Richard D. Marting Foundation. Julia Wisniewski is a woman who,  in my opinion, not only plays ball with the crooks who control Portsmouth, she is an All-Star at it. If Murray played ball with the SOGP with half the enthusiasm Julia Wisniewski does, you can bet she wouldn’t have to face one, let alone two, recall attempts.
I call Wisniewski a carpetbagger because he doesn’t even live in the city whose mayor he is trying to recall. He lives not in Portsmouth but in McDermott, Ohio, which doesn’t even have a mayor. Maybe  he is jealous that  Portsmouth has a mayor and McDermott doesn’t. Instead of a mayor, all  McDermott has is a  three member board of trustees. If Wisniewski wants to recall a mayor, let him circulate a petition in McDermott to change McDermott to a mayoral form of government. Portsmouth has a representative government but Murray doesn’t represent Wisniewski.  Those three trustees  represent Wisniewski. If Wisniewski is determined to recall somebody, let him circulate a petition to recall one of those trustees, and if he is not going to be able to get more than ten signatories, three of which turned out to be invalid, I don't think a recall in McDermott is going to be any more successful than it has been so far in Portsmouth.

Photocopy #1: Ralph Wisniewski’s unsigned affidavit

At  the November 8th Scioto County Board of Elections hearing, Murray’s attorney  Corey Columbo challenged the validity of  Wisniewski’s recall petition but not because Wisniewski was unregistered to vote and lived in another town. Because of a loophole  in the Portsmouth City Charter, Wisniewski could legally be a non-registered non-resident and still circulate the petition.  Columbo challenged Wisniewski’s petition because he signed the affidavit in the wrong place. The law doesn’t require Wisniewski to be a registered voter or even to live in Portsmouth, but it does require him to sign a sworn affidavit that, “I, and I only personally circulated the forgoing petition paper,” etc. Wisniewski put his signature on the line where he was supposed to print his name and he left blank the line where he was supposed to write his signature. Apparently, Dana Wolery. who notarized Wisniewski’s affidavit, did not notice his mistake. But his  mistake was no trivial matter.  An  affidavit is a sworn statement, in writing, made under oath in the presence of an authorized agent or representative of the state, in this instance a notary public. You don’t sign an affidavit  on just any line,  any more than you sign a check on just any line. Doesn’t the  affiant’s signature (Wisniewski’s) have  to  be on  the correct line for the affidavit to be valid? Or can Wisniewski get away not only with being an unregistered  non-resident, but also with signing the affidavit on the wrong line? The Scioto County Board of Elections on November 8th voted he could, but it remains to be seen whether the Ohio Supreme Court agrees.

The affidavit as it is reproduced on the recall form that is currently being used  by the city clerk’s office (Photocopy #1) does not include the  word “Signed” before the line for the signature. But the  Portsmouth City Charter, a copy of which is included on the city’s official website, includes the word “Signed” before the line where it should be signed.

Photocopy #2: The affidavit  form as prescribed in the City Charter

At one time the city presumably followed the city charter and included  the word “Signed” on  the recall petition.  But apparently “Signed” was omitted when the recall petition was revised, perhaps  in 2004, if not earlier, either by the office of the city clerk or the Board of Elections.  It may  have been the  2004 revision that  brought  the century up to date, changing the 19__ to 20__. But the  revised form omitted  the  word “Signed,” causing confusion. As longtime city clerk, Jo Ann Aeh  should bear at least part of the  responsibility. She may have been  as careless in proofreading the form for the  recall petitions as she was  subsequently in certifying the signatures on them. The bottom line is that the form of the recall petition  prescribed in the city charter (Photocopy #2)  dictates the signature of all circulators, including Wisniewski’s, belongs on  the line after the word “Signed.” If I heard correctly, Bihl’s attorney argued that Wolery had notarized Wisniewski’s affidavit, so Wisniewski’s signature, even if it was on the wrong line, could not be challenged. At one time, in baseball, the decision of the umpire, right or wrong, was final. That’s  no longer the case in baseball, and I can’t believe it was ever the case in law  that a notary’s signature could make what was wrong right. If the Ohio Supreme Court passes judgment on Wisniewski’s petition, I think they will rule it and all the signatories on it are invalid.


As Wisniewski did on petition #5, several other circulators began signing the affidavit on the wrong line. But on those other petitions, the circulators,  or their notary, apparently noticed the circulator’s mistake, at which point the circulators  printed  their name  over their signature,  and then wrote their signature on the correct line. It appears  there is an affidavit signature error on another petition that city clerk Aeh certified, petition #56, which was circulated by Robert Montgomery. Perhaps it is just a coincidence but Montgomery’s affidavit  was notarized by Dana Wolery, who had notarized Wisniewski’s. On petition #56, Montgomery wrote his signature on the line of the affidavit where he was supposed to write it, but he also mistakenly  wrote his signature  on the line where he was supposed to print  it.

Photocopy #3: Affidavit of Robert Montgomery on Petition #56

What should invalidate Montgomery’s  affidavit and petition  is  not his mistake of writing his signature on the line where he was supposed to print it, but rather the way in which that mistake was dealt with. Instead of  Montgomery himself correcting that error by printing his name over his signature, somebody else, possibly Wolery, emended it for him, but without initializing the emendation.  This also might seem like a technicality, but only if you don’t see the recall process as a very serious business whose aim is to subject an elected official to a special election only months after he or (in the case of Murray) she has won a general election. The recall is a valuable option of the American electoral process, but  the rules and procedures governing it should be no less strictly observed than those governing general elections. Not only a sloppy but even a casual standard in handling  the recall process should not be tolerated. The rules in a pick-up game of basketball, in which there is no referee, are much more lax than they are in an official game, but the recall process  is not a pick-up game and an elected official should not be recalled by opponents who are allowed to foul indiscriminately.

It doesn’t take a  handwriting expert to see that it was not Robert Montgomery’s hand that printed his name above his signature. Nor does his name appear  to have been printed by the same pen with which his signature was written.  Why wouldn’t Montgomery have made the change himself, and made it with the same pen he wrote his signature with? And why wouldn’t he have initialed it to make it clear that it was  he who had made the emendation? As Montgomery’s affidavit stands (Photcopy #3), it is not clear when the emendation was made or who made it. As a notary, Wolery had a responsibility to point out to Montgomery his error in signing his name where he should have printed it. But it was not her responsibility, nor did she have the authority, to emend the affidavit  for him.  For her or anyone else to emend the affidavit borders on forgery, especially since whoever printed Montgomery’s name did not initial that  emendation. Not initialing the  emendation  only compounded the error.  Ms. Wolery is no doubt an upright, honest business woman who made mistakes as a notary that the recall movement could greatly benefit from. My recollection is  Columbo at the November 8th Board of Election hearing did not challenge the validity of Montgomery’s affidavit on petition #56,  but he probably could have. But there were so many questionable signatures and addresses on  so many of the recall petitions that it would have taken a battery of lawyers and researchers in the short time available to find and deal  with them all.

For various reasons, Aeh subsequently invalidated six of the eighteen signatories on  Montgomery’s petition and three of the ten on Wisniewski’s. The remaining nineteen signatures on both petitions that Aeh certified should be disqualified.  According to the 25% percent requirement in the city charter, the petitioners needed 1148 valid  signatories to put the recall of Murray on the ballot. In Aeh’s suspect count, the petitioners had 1155 valid signatories, just  seven above the required 1148. If the seven signatories that Aeh had certified on Wisniewski’s petition  and the twelve that she had certified on Montgomery’s had been  invalidated by the Board of Elections, that would have put the number at 1132, sixteen below the required 1148. Columbo challenged a number of other signatories at the November 8th hearing and if any of those were  invalidated the number would have been even lower and the recall election the Portsmouth City Council had said should take place could  not have.

A possible explanation of why so many of the affidavits may be invalid  is that most of them were notarized only in the hectic last few days of petition circulating, and the majority of those petitions were notarized on November 8th, which was  the deadline for them to be returned to the city clerk.  Both Wisniewski’s (#5) and Montgomery’s (#56) petitions were notarized on November 8th.
This whole desperate, disorganized, and undemocratic “Recall Mayor Murray” effort may be nullified by the Ohio Supreme Court. Because of the impending December 7 recall election, the Court has agreed to hear Murray’s challenge to the petitions on an expedited timetable. It would have saved a lot of time, money, and effort if the Scioto Board of Elections had done the nullifying, but that would have been  too much to expect. The Board threw out the first recall attempt, but  they could hardly be expected, given the incestuous politics of Scioto County,  to do it a second time. And if that second attempt fails, the Board has  someone else to blame, because Bihl was represented by an attorney from Ironton whose arguments in favor of the petitioners were very weak, but what else could they have been? But the Board, eager to be taken off  the hook and clutching at straws,  was only too eager to accept his weak arguments.

Trump Card

The case Columbo has presented on  Murray’s behalf does not rest entirely on challenging individual signatories or petitions. His legal trump card, which he played unsuccessfully at the November  8th  Board of Elections meeting, he will presumably play again before  a more impartial body, the Ohio Supreme Court. Columbo’s trump card could invalidate not just dozens of signatories but every single one of the 1155 signatories Aeh had certified. Let us hope the Supreme Court does rule before December 7, because Section 155 of the  loopy Portsmouth City Charter states that, with emphasis added, “if a majority of the votes cast on such a question [a recall] shall be in favor of the removal of such officer he shall,  regardless of any defect in the recall petition, be deemed removed  from office [. . .] and the vacancy in the office caused by such  recall shall be filled as provided in this Charter for filling a vacancy in the office from which such officer has been removed.” That means that if the Supreme Court rules that the petitions are invalid, but makes that ruling after Mayor Murray  loses a December 7 recall election, the results of that election stand and the President of Council, David Malone, replaces her as mayor, the Supreme Court notwithstanding. Can such things be? In Portsmouth, with its Home Rule Charter, apparently they can. (I will discuss Columbo’s trump card in my next posting on River Vices.)  

Headline in the Portsmouth Daily Times about a decade ago
but which the Times now won't acknowledge