Best and Worst: Portsmouth Ohio (Poem)

                            
             

“It’s the city of the toppled steeple . . .”

                                             
















The Best and Worst:
  Portsmouth, Ohio 

                                   I

It’s the best of cities,

It’s the worst of cities;

It’s the city of great price,

It’s the city of great vice;

It’s the city of piety,

It’s the city of notoriety;

It’s the city of the punctual,

It’s the city of the dysfunctional;

It’s the city of concerned citizens,

It’s the city of sleazy politicians;

It’s the city of blunt bloggers,

It’s the city of pettifoggers;

It’s the city of meisters,

It’s the city of shysters;

It’s the city of roots,

It’s the city of brutes;

It’s the city of floodwalls,

It’s the city of pitfalls;

It’s the city of antique shops,

It’s the city of chop shops;

It’s the city of old coots,

It’s the city of young prostitutes.

It’s the city of work,

It’s the city of pork;

It’s the city of on-the-go,

It’s the city of who-you-know;

It’s the city of blue skies,

It’s the city of meth highs;

It’s the city of the squeaky clean,

It’s the city of the obscene;

It’s the city of hospitals,

It’s the city of pill mills;

It’s the city of aspirin,

It’s the city of Oxycontin;

It’s the city of hope,

It’s the city of dope;

It’s the city of new schools,

It’s the city of old fools;

It’s the city of the state university,

It’s the city of the learning disability;

It’s the city of every kid passes,

It’s the city of remedial classes;

It’s the city of the orotund and emphatical,

It’s the city of the unspeakably ungrammatical;

It’s the city of drawers and hewers,

It’s the city of backed-up sewers;

It’s the city of live wires,

It’s the city of suspicious fires;

It’s the city of the opera singer,

It’s the city of giving the finger;

It’s the city of Christian and Jew,

It’s the city of Klan residue;

It’s the city of Scottie’s potties,

It’s the city of Mearan’s hotties;

It’s the city of lights at corners,

It’s the city of J. Edgar Horners;

It’s the city of the dedicated teacher,

It’s the city of the adulterous preacher;

It’s the city of upright people,

It’s the city of the toppled steeple;

It’s the city of the crucifix,

It’s the city of the cocaine fix;

It’s the city of the father’s dereliction,

It’s the city of the son’s addiction;

It’s the city of ubiquitous karaoke,

It’s the city of kin in the pokey;

It’s the city of Meals on Wheels,

It’s the city of drug deals;

It’s the city of whites and blacks,

It’s the city of mansions and shacks;

It’s the city of Main Street and the Hill,

It’s the city of the toxic fill.

                             II

It’s the city of the river breeze,

It’s the city of radioactive retirees;

It’s the city of the humble soul,

It’s the city of the doughnut hole;

It’s the city of exercise classes,

It’s the city of fat asses;

It’s the city of Kinneys and Massies,

It’s the city of sassy lassies;

It’s the city of the Welcome Center, to greet you,

It’s the city of estate planners, to cheat you;

It’s the city of real meeting halls,

It’s the city of imaginary malls;

It’s the city of Clayton’s tools,

It’s the city of Mearan’s mules;

It’s the city of Kalb gone to pot,

It’s the city of Bihl, who got caught;

It’s the city of Hospice,

It’s the city of injustice;

It’s the city of Pampered Pets,

It’s the city of lapdog vets;

It’s the city of the opportune knock,

It’s the city of the pilfered rock;

It’s the city of those that can,

It’s the city of the Ku Klutz Klan;

It’s the city of art galleries starting,

It’s the city of prohibited farting;

It’s the city of “I am what I am,”

It’s the city of the Marting Scam;

It’s the city of medical healers,

It’s the city of wheeler dealers;

It’s the city of preacher and parson,

It’s the city of incest and arson;

It’s the city of priest and minister,

It’s the city of lawyers who’re sinister;

It’s the city of winks and nudges,

It’s the city of venal judges;

It’s the city of prosperity,

It’s the city of poverty.

                             III

It’s the city of honorable pursuits,

It’s the city of crooks in suits;

It’s the city of flood wall murals,

It’s the city of pork-lined urinals;

It’s the city of Southern hospitality,

It’s the city of redneck hostility;

It’s the city of he who has, gets,

It’s the city of he who hasn’t, bets;

It’s the city of food stamps and the lottery;

It’s the city of Bashams and besottery;

It’s the city of plenty, the city of need,

It’s the city of generosity, the city of greed;

It’s the city of speaking in tongues,

It’s the city of smokers’ lungs;

It’s the city of bikers collecting for toys,

It’s the city of bikers making noise;

It’s the city of victory torches,

It’s the city of sagging porches;

It’s the city of dreams,

It’s the city of schemes;

It’s the city of American do-and-dare,

It’s the city of the American nightmare;

It’s the city of “O say can you see,”

It’s the city of the SOGP;

It’s the city of shoes and shoelaces,

It’s the city of heels in high places;

It’s the city of vegetarian fruits,

It’s the city of councilmen in cahoots;

It’s the city of the Golden Rule,

It’s the city of (ugh!) Home Rule;

It’s the city of “Drive Slow! What’s your hurry?”

It’s the city of bashing Mayor Murray;

It’s the city of churches and chimes,

It’s the city of the lying Times;

It’s the city of spring and fall,

It’s the city of recall, recall, recall;

It’s the city of the blessed and cursed,

It’s the city of the best and worst.

Robert Forrey, 2010

The Numbers Game: So Who's Counting?

The numbers in the  drawing above are those that Portsmouth City Clerk Jo Ann Aeh wrote on the back of the sixty-six  Recall Mayor Murray petitions  as she took  count of the signatories, a count that local and state law stipulates should be taken and sworn to by the circulators of the petitions, not by the city clerk. Aeh's numbers are now in dispute and under review by the Ohio Supreme Court, which previously, back in 1997, reprimanded her for mistreating recall petitions.

As Corey Columbo, Esq.,  of the McTigue-McGinnis law firm pointed  out in a brief filed with the Supreme Court on November 23rd, 2010 on behalf of Portsmouth’s embattled mayor Jane Murray, Ohio Revised Code 3501.38(E)(1) stipulates that circulators of recall petitions must write down the number of signatories (i.e., signers of petitions)  and sign an affidavit swearing to the accuracy of that number. The circulator must also swear that he or she witnessed the signing of the petition by each signatory and that each signatory, to the best of the circulator’s knowledge, was a registered voter. The purpose of this requirement is to prevent signatures being added, wittingly or unwittingly, fraudulently or inadvertently, after the circulator has signed the affidavit. The integrity of the electoral process is indispensable to the survival of American democracy. When voters lose faith in the integrity of the electoral process, they can  lose faith in democracy.   

Before they submitted their  recall petitions to the Portsmouth city clerk,  circulators swore to a notary under oath that they had  witnessed all the signatures appended to the  petitions; but the oath they took is worth little, practically speaking, if the circulator fails to write down on the petition the exact number of  signatories he or she is swearing to, which all circulators failed to do in both the first and second Recall Mayor Murray petition drives. There are twenty-five lines for  signatures on the recall petitions distributed to circulators by the Portsmouth city clerk.  But not every one of the sixty-six petitions of the second recall attempt had every line filled. On two petitions twenty- four of the twenty-five lines were unfilled. An unscrupulous person who has access to a petition after the circulator signs it could  fraudulently add names to it if the circulator has not written down the number of signings he or she witnessed. In the final count, the   number of signatures the petitioners had over the required number of  1148 was only seven, according to city clerk Jo Ann Aeh. That is a slim margin, which could induce  some people, given the bitterness of Portsmouth’s politics, to inflate the numbers to offset anticipated challenges to some of the signatories. 

  

Indiscriminate and Careless

The large number of signatories who were disqualified  suggests that too many of the circulators were indiscriminate and careless in their eagerness to reach 1148. O.R.C. 3501.38(E)(1) further requires a circulator to swear that all signatories were, to the circulator’s best knowledge, qualified to sign. But how can a circulator be sure of  a signatory’s qualifications  if they are buttonholing  people on the street or in restaurants and shopping centers, as at least several of them did? One female circulator solicited signatures at the entrance to Kroger’s Supermarket  and inside the Life Center at S.O.M.C., without getting permission to do so, until she was asked to desist and leave. The  large number of signatories whose names were subsequently stricken because they were not registered suggests  that some circulators, in their eagerness to get as many signatures as fast as possible, did not bother to  ask everyone they approached whether they were registered voters and whether they had moved since they last voted. Moving without notifying the Board of Elections would have disqualified them as signatories.  It is hard to understand why the Scioto County Board of Elections did not invalidate the petitions at the November 8th  protest hearing since the Supreme Court in 1992, in Citizens for Responsible Taxation v. Scioto County Board of Elections,  had ruled O.R.C. 3501.38(E)(1) required  petition circulators to write down on each petition the number of signatories. The 1992 petitions were not for  a special recall election, but  the same Ohio Revised Code 3501.38(E)(1) applied to the tax petitions.

The early 1990s was only a decade, not a century ago. Is institutional memory so short in Portsmouth that nobody at the Board of Elections can remember even vaguely the 1992 Citizens for Responsible Taxation v. Scioto Count Board of Elections case, in which the Supreme Court reemphasized  that circulators of petitions had to write down on each petition the number of people they had witnessed signing that petition?  The Board of Elections denied at the first protest hearing in October that R.C. 3501.38(E)(1) applied to that first recall attempt, and Bihl’s lawyer reminded the Board in November at the protest hearing on the second recall attempt that having denied that R.C. 3501.38(E)(1) was relevant at the first protest hearing, the Board couldn’t very well turn around and say it was a valid argument at the second protest hearing. And the Board apparently agreed, and so the precedent of willful ignorance at the Board was upheld. If the Board was not right at either the first or second protest hearing, at least it was consistent. There used to be a popular radio quiz show called “It Pays to be Ignorant,” the opening jingle of which was, “It pays to be ignorant, to be dumb, to be stupid, to be ignorant.” That is the situation in Portsmouth where the rule is “go along to get along,” which requires keeping a closed mind, at least on those  occasions when the control of the city by a corrupt clique is at stake.

   Since Jo Ann Aeh in  1992  had already been city clerk for about five years, why did  she  in 2010 certify two sets of recall  petitions even though  they did not include the information required by O.R.C. 3501.38(E)(1)? Had she forgotten the 1992 Supreme Court ruling in Citizens for Responsible Taxation  or had she found it more convenient, on behalf of the clique, to ignore it, even though Columbo had cited that case at the first protest hearing? In a gesture so typical of her unwarranted expansion of the authority of  the city clerk’s office, it was Aeh herself who wrote down on the back page of each petition the number of the signatories on it,  though not always accurately. The Supreme Court, and Columbo, following the Court’s example, emphasized that the requirement that the circulators write down the number of signatories on each petition was more than a technicality. Who writes down the number is not inconsequential. The fact that the city clerk, not the circulators, wrote down the number makes a world of  difference, not only practically but legally speaking, as the Board possibly will learn next week when the Supreme Court is expected to hand down a decision.

The Count

The evidence Columbo presented and the case law he cited in his  November 23rd  brief to the Supreme Court to invalidate the petitions to recall Mayor Murray seem compelling. For example, the Supreme Court’s decision in Finkbeiner v. Lucas County Board of Elections, rendered just last year, offers fresh reaffirmation of the Court’s position on the requirements that must be followed on recall petitions. Finkbeiner was the mayor in the Home Rule city of Toledo who, under another subsection of  O.R.C. 3501.38, challenged the petitions  of those who were seeking to remove him from office. The  Supreme Court ruled in Finkbeiner's favor and he served out the remainder of his term.
  It is hard  to see how the Supreme Court could not issue either a Writ of Prohibition, to prevent the special recall election on December 7th,  or a Writ of Mandamus, ordering the Scioto County Board of Elections to sustain Murray’s objections. But I now know enough about Home Rule to realize how much I don’t know. What I do know is  that the case law  related to recalls in Home Rule states, such  as Ohio, does not  provide the  same degree of consistency as in non-Home Rule states in regard to legal precedent. Because of the murkiness in Home Rule states on the question of what is a  municipality’s and what is a state’s area of responsibility and authority, each case that arises is, if not unique, at least different. It is harder to predict how the courts will rule in Home Rule states because of the  complications that arise between city charters and state statutes. But where the two are not in direct conflict, which Columbo argues is  the case with the Portsmouth charter and the Ohio Revised Code in regard to  3501.38,  the municipality is obliged to follow the state law, as the Portsmouth Charter acknowledges in Sections 143 and 165. Specifically, since there is  no provision in the Portsmouth charter or ordinances prohibiting it, the Board of Elections is obliged to follow the state law requiring circulators to indicate the number of signatories. 

The fact that all nine members of the Supreme Court are Republicans is not germane, at least in this  case. The incestuous politics of Portsmouth are bi-partisan; it does not make much difference in Portsmouth whether someone is a Republican or a Democrat. It’s the numbers that count in this case; and the Supreme Court, like the Count on Sesame Street,  can count. You can count on that.

“OK, all you kiddies in Home Rule states, let’s count together, up to twenty-five signatories. One signatory, two signatories, three signatories, four signatories . . .”

.

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.

II

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