Chapter 3517-1 Proceedings Before the Ohio Elections Commission
These rules prescribe the procedure to be followed in all matters before the Ohio elections commission, whether brought by complaint pursuant to section 3517.153 of the Revised Code or by request for advisory opinion pursuant to division (D) of section 3517.153 of the Revised Code.
These rules shall be construed and applied to effect due process, just results, fair, impartial, speedy and sure administration, simplicity in procedure, elimination of delay, unnecessary expense and all other impediments to the expeditious administration of the election laws under the jurisdictions of the commission.
(C) Ohio Rules of Civil Procedure and Ohio Rules of Evidence applicable.
In all instances in which they are not in conflict with these rules of procedure, the Ohio Rules of Civil Procedure and Ohio Rules of Evidence shall control proceedings before the commission.
A complaint shall be submitted to the commission in one of two forms:
(1) By affidavit by an individual based on personal knowledge in the following format:
(a) Typewritten, double-spaced, in no less than 12 point pica typeface, on 81/2" X 11" white bond paper, and contain no more than eight pages excluding exhibits;
(b) Clearly set forth the names, full residence and/or business addresses of all parties and affiants, including the name, title and address of the officer, member or agent making the complaint and person responsible for the behavior about which the complaint is made. If any party is a campaign committee, the candidate, and campaign treasurer in those circumstances involving sections 3517.08 to 3517.13 of the Revised Code, shall be made a party to the case. For cases which will or may be subject to the expedited hearing process, telephone and fax numbers for all parties shall be included, when known;
(c) Any party which is not representing itself shall be represented by an attorney at law licensed to practice law in Ohio. The complaint shall include the full address of the attorney with complete telephone and fax numbers. An individual complainant shall not represent multiple complainants unless the complainant is an attorney licensed to practice law in Ohio. Persons authorized to practice law in other jurisdictions may, upon proper application to the commission, be authorized to practice before the commission in a particular proceeding;
(d) Clearly set forth the specific source or basis of the personal knowledge and be signed and sworn before a notary public or other person authorized by law to administer oaths in a form substantially in accordance with section 2935.19 of the Revised Code;
(e) Contain by attachment all affidavits, exhibits and other documents relied upon in alleging the violation or tending to support the allegations;
(f) Clearly set forth sufficient facts, supported by affidavits, exhibits and/or other documents to constitute a prima facie violation of Ohio election law over which the commission has jurisdiction;
(g) Clearly set forth each and every separate alleged violation of Ohio election law over which the commission has jurisdiction in a narrative form, cross-referenced to the relevant Revised Code section(s).
(2) Upon filing with the commission by the secretary of state or an official of a county board of elections which shall be in the following format:
(a) A separate complaint shall be made and form used for each candidate, campaign committee, political committee, political party, or legislative campaign fund being complained about except in instances where all parties alleged to have made the violation are affiliated and\or share the same address:
(b) Only on a form or in a format as prescribed by the commission;
(c) Clearly set forth the name and full business address of the officer making the complaint and a contact person, if the complaint is filed by a person other than the officer;
(d) Clearly set forth the full name and address of all parties and affiants, whether individuals, committees, organizations, respondents, legislative campaign funds, or others. If any party is a committee, organization, or legislative campaign fund, the complaint must also include the name, title and address of the treasurer, officer, member or agent responsible for the alleged violation. If any party is a campaign committee, the candidate, and campaign treasurer in those circumstances involving sections 3517.08 to 3517.13 of the Revised Code, shall be made a party to the case.
(e) Clearly set forth sufficient facts, supported by affidavits, exhibits and/or other documents to constitute a prima facie violation of Ohio election law cross-referenced to the relevant revised code sections, and contain by attachment all exhibits and other documents relied upon in alleging the violation or tending to support the allegations.
(3) Staff attorney to the commission shall reasonably review all complaints filed with the commission within one business day of receipt. Upon review, counsel shall make a determination as to the nature of the complaint. If counsel determines that a complaint is filed under division (b) of section 3517.21 or 3517.22 of the Revised Code, the complaint shall be immediately referred to a panel of the commission for probable cause determination. For all other complaints filed with the commission, counsel shall make a timely recommendation to the commission as to the disposition of the complaint.
If staff attorney is unable to make a determination or recommendation within one business day, such recommendation shall be made as soon thereafter as is reasonably practicable. Failure by counsel to make a determination or recommendation within one business day shall not be affect or otherwise render voidable the final disposition of a case before the commission.
In those situations where staff attorney will be unavailable for an extended period of time, the chair of the commission shall make the required one business day recommendations as required by statute. If the chair is unable to make any such determinations or recommendations, he shall designate another person licensed to practice law in Ohio to make the required determinations and recommendations.
(B) Request for advisory opinion.
Each request for an advisory opinion shall be made in the following format:
(1) Typewritten, double-spaced, in no less than 12 point pica typeface, on 8 1/2" x 11" white bond paper, and contain no more than five pages excluding exhibits;
(2) Clearly set forth the names and full residence and/or business addresses and telephone numbers of the person(s) making the request;
(3) Clearly set forth a hypothetical fact pattern upon which the commission's advice is requested and describe, in general, all parties involved in the hypothetical fact pattern, whether individuals, committees, organizations, legislative campaign funds, or others. The request must include the name, title and address of the individual, treasurer, officer, member of agent responsible for the request and contain by attachment all sample exhibits and other documents which the commission will need to render its opinion;
(4) Clearly set forth each and every separate element or section of Ohio elections law upon which the commission's advice is requested, in a narrative form, cross-referenced to the relevant code section(s);
(5) Clearly set forth sufficient evidence that the requesting party has the necessary standing to request such opinion;
(6) Requesting parties may submit a memorandum in support of the request. Such memorandum shall be no more than twelve pages. If the requesting party submits a memorandum, the commission shall post a public notice in its office that such a request has been received and offer interested parties the opportunity to respond in support of or opposition to the request. A copy of said notice shall be sent to the office of the secretary of state for posting in that office.
Any response submitted pursuant to the public notice shall be filed with the commission within seven days of the posting of such notice in the office of the commission for such response to receive consideration by the commission. The original requesting party shall not submit any additional memorandum aside from the original memorandum filed in support of its request for advisory opinion.
(7) Advisory opinions of the commission may not be applied retrospectively.
(8) In the letter requesting the opinion, the requesting party shall demonstrate, to the sufficiency of the staff attorney for the commission, that the request is made in good faith. If the requesting party does not establish to the sufficiency of the staff attorney that the request is being made in good faith, the staff attorney shall recommend to the commission that an opinion not be issued.
(9) Any request that does not sufficiently establish any of the elements in this section, shall be returned to the requesting party by the chair with a letter indicating the reason why the request is being returned.
(C) Number of copies to be filed.
(1) An individual filing a complaint based on personal knowledge shall file with the commission an original, eight copies (one for each commission member and one for counsel) and sufficient copies for each named respondent. If a committee, organization and an officer thereof, or a candidate are named, one copy must be filed for each party named;
(2) The secretary of state or a board of elections shall file an original and one copy for each named respondent in the complaint;
(3) A party requesting an advisory opinion shall file an original and eight copies.
(D) Any non-complying or insufficient complaint or request for advisory opinion shall be first entered into the records of the commission and then returned to the submitting party with a notice of insufficiency detailing the area (or areas) of the complaint or request which is insufficient. The submitting party shall have ten business days from the date of mailing, in which to resubmit satisfactory documents. If the complaint or request for advisory opinion is not timely resubmitted, counsel shall recommend to the full commission that such complaint or request for advisory opinion be dismissed without prejudice or given no response.
Parties against whom a non-complying or insufficient complaint is filed shall respond within the required time frame of these rules based upon the date that such satisfactory documents are properly re-submitted to this commission.
(E) Commission staff shall assign a separate designation to all complaints filed with and advisory opinions issued by the commission. This designation shall be comprised of numbers, letters, or other characters as determined by commission staff. After each case has received its designation, any correspondence with commission shall include this designation.
(A) Who may be served.
Complaints shall be served upon respondents as detailed in this rule and otherwise in conformity with Ohio Rules of Civil Procedure 4.2(1)-(14).
(B) Preparation of process.
Commission staff shall place a copy of the complaint, a copy of these rules of procedure, a copy of the Ohio Revised Code section(s) encompassing the jurisdiction of the commission, a notice of the determination or recommendation made by commission counsel, as appropriate, including any date set by the commission to take action on the complaint, and any other necessary documents, in a sealed envelope addressed to the parties in the complaint to be served at the address set forth in the complaint.
(C) Methods of service.
Complaints shall be served upon the parties named in the complaint in the following manner with address correction requested:
(1) Certified mail service.
The sealed envelope shall be placed in the regular United States mail with the United States postal service (USPS), postage pre-paid, certified mail return receipt requested, with instructions to forward and with instructions to the delivering postal employee to show to whom delivered, date of delivery and address where delivered. Staff shall note the date of mailing and the certified number in the records of the commission. Upon return of the receipt, or of the mailing undelivered, staff shall enter the fact of same in the records of the commission and place the receipt or envelope in the case file. Service shall be complete upon receipt, as evidenced by the return receipt.
(2) Personal service.
Upon written request of a party, or counsel to a party, for designation of a suitable person to make personal service, approved by counsel to the commission, service of
The sealed envelope shall be made by the designated person, at the sole expense of the requesting party, in conformance with Ohio Rules of Civil Procedure, Rules 4.1(2) and 4.3(B)(2).
(3) Refused or unclaimed service.
If the certified mail envelope containing service of process is returned marked "refused" or "unclaimed" by the USPS, or if the return of service by the designated process server states that service was refused but the stated address appeared to be that of the person to be served, staff shall retain in the commission records the failed service unopened and send, by ordinary U.S. mail postage pre-paid, the documents outlined in paragraph (B) of rule 3517-1-03 of the Administrative Code. The fact of mailing shall be noted in the records of the commission. If not returned within fourteen days, service shall be complete on the date of mailing.
(4) Undeliverable or forwarding order expired.
If the certified mail envelope is returned marked "undeliverable as addressed" or "moved, forwarding order expired" by the USPS, or if return of service by the designated process server states that it appears that the party to be served cannot be found at the address given, staff shall notify the designated contact person of the facts and request an updated address for service, if available. If an updated address is given, said notice shall be given by regular U.S. mail, postage pre-paid. If no updated address is available, staff shall remove the matter from the commission's docket and notify the party of said action and removal.
(5) FAX and/or telephone service.
In cases which will receive the expedited hearing process before a probable cause panel as outlined in rule 3517-1-10 of the Administrative Code, commission staff may also make service by FAX or telephone, in conjunction with other available service methods. Such service is intended to inform the complainant and respondent, as applicable, of the time and date of the probable cause panel meeting.
If the probable cause panel finds that probable cause is present, or assigns an investigative attorney, this type of service will be used to notify the respondent of the date and time of the meeting of the full commission. This service is intended to confer on all parties an opportunity to appear at commission meetings, whether by panel or by the full commission. This type of service is intended to supplement mail service and will be sufficient to notify a party of commission hearings and actions when that party makes an appearance before a panel of the commission or the full commission.
(D) Subsequent notice.
Notice by the commission, subsequent to initial filing and service of the complaint, shall be by regular U.S. mail, postage pre-paid, address correction requested. Notice of the determination or recommendation made by commission counsel including the date set for hearing shall be sent to all parties as necessary for the proper adjudication of the complaint.
(E) Notice of disposition.
Notice of disposition or adjudication of a matter, or any part thereof, by the commission shall be served upon the party adversely affected by regular mail. The act of mailing shall be considered sufficient to have made service and any appeals or requests for reconsideration shall be made based on the date of mailing by the commission to the affected party.
Any party that is the subject of a complaint filed with the commission that is not given the expedited process, shall file a response on the merits, or on commission jurisdiction, with the commission within twenty-one days of the mailing of the complaint. Said response shall be in the form of an affidavit, signed and sworn before a notary public or other person authorized by law to administer oaths in form substantially in accordance with section 2935.19 of the Revised Code, and clearly set forth the specific facts or basis of knowledge supporting the response. If the respondent fails to file a proper response, commission staff shall timely notify the respondent by regular mail that by failing to respond or show good cause for such failure to respond, the respondent may be deemed to have admitted the allegations in the complaint and may allow the commission to make a finding against the respondent;
(B) Required service.
Except as otherwise provided in these rules, every motion, every pleading subsequent to the initial complaint, every paper relating to discovery (except requests for issuance of subpoenas), every document filed with the commission, every written notice, appearance, demand, offer of judgment, and similar paper shall be served upon each of the parties by the party making the filing. The party making the service shall maintain a certificate of service, authenticated by the USPS, that such service was made by use of mail service. No service need be made on parties in default for failure to appear or respond, except that pleadings asserting new or additional claims against them shall be served upon them in the manner set forth in rule 3517-1-03 of the Administrative Code.
(C) Manner of Service.
Service shall be made as outlined in rule 3517-1-03 of the Administrative Code, or in the same manner required by Ohio Civil Rule 5(B), unless otherwise ordered by the commission
All papers, after the initial complaint, required to be served upon a party shall be filed with commission staff in the same manner as required by Ohio Civil Rule 5(D), unless otherwise ordered by the commission.
(A) Commission panels
(1) Organization of panels
(a) Members of panels shall be chosen by the chair of the commission. Members may participate in more than one panel at any time.
(b) A panel shall be made up of at least three members of the commission.
(c) Not more than one-half of the members of any panel shall be affiliated with the same political party.
(d) Members of a panel shall choose a person to act as chair of that panel.
(e) Multiple panels may be appointed and take action at the same time.
(f) Panels shall be reconstituted at the discretion of the chair.
(2) Panels of the commission shall meet weekly at times established by the staff attorney to the commission. The time for meeting shall be established based upon the business to be conducted by the panel and equity to the parties to come before the commission.
(3) Meetings shall be held on each of these days so long as there is business to be conducted before the commission. If, in the determination of the staff attorney of the commission, there is no necessary or required business to be conducted by the panel, such meeting shall be canceled.
(4) Panels shall meet in person at a site designated by commission staff. Such meeting shall continue until such time as all business as was to come before the panel has been conducted and has been completed.
(5) Panels of the commission shall convene as reasonably practicable within two business days of the date on which the staff attorney shall make the required determination, to determine whether probable cause exists for the full commission to hear arguments relating to the complaint. However, the date for a such a panel meeting may be continued by the staff attorney or the chair for good cause up to seven business days from the date of filing pursuant to division (B)(1) of section 3517.156 of the Revised Code. Such panels shall also hear any and all cases for which the complainants have requested an expedited hearing and those complaints which have been recommended by staff attorney to the commission for probable cause determination.
(6) Staff attorney to the commission shall apportion cases among the panels in such a manner that allows for fair and timely adjudication of cases pending.
(1) The full commission shall meet as scheduled by staff attorney to the commission, at the call of the chairman, or upon the written request of a majority of the members.
(2) The staff attorney to the commission shall establish a schedule of regular meetings of the full commission.
Eff 10-31-74; 12-31-82;
Rule promulgated under: RC 119.03
Rule authorized by: RC 3517.152
Rule amplifies: RC 3517.152 , 3517.154 to 3517.156 111:1-1-03 111:1-1-04 111:1-1-05 111:1-1-19
Time shall be computed in the manner set forth in Ohio Civil Rule 6
(B) Extension of time; continuance.
(1) Before a continuance is granted by the commission, the party seeking the continuance shall request the consent of the other party for such continuance. If the parties mutually agree on the continuance, the parties shall submit a joint motion for continuance, in writing, which will be considered by the commission. If there is no agreement of the parties, the requesting party shall so state in its motion for a continuance, which shall be made in writing to the commission and which will be considered by the commission.
(2) No extension of time or continuance will be granted unless timely submitted, in writing, and approved by the staff attorney to the commission, a duly authorized panel, or the full commission. The commission may grant extensions of time in a manner consistent with the provisions of sections 3517.155 and 3517.156 of the Revised Code. Parties appearing before the commission will not be summarily granted any continuance without good cause. At such time as a continuance is granted, the date to which the continuance will be made will be determined and notice will be sent to all parties pursuant to rule 3517-1-03 of the Administrative Code.
(3) Prior to a hearing on a matter by a panel of the commission or the full commission, staff attorney to the commission shall grant such continuances as may be reasonably granted in accordance with these rules. The chair of a panel of the commission or the chair at a hearing of the full commission may grant continuances as reasonably necessary for proper adjudication of a matter before the respective body.
(C) Hearing, motions, subsequent filings.
A hearing on the complaint shall be held at the first available opportunity at a regularly scheduled meeting of a panel of the commission or the full commission, as appropriate, following notice thereof of the parties and/or counsel, unless such notice is waived by all parties and/or counsel to the parties.
Motions and supporting affidavits and\or supporting documents shall be served upon other parties and\or counsel, and filed with the commission no later than seven business days prior to the date set for hearing. Motions for protective orders shall be filed no later than five business days prior to the date set for hearing. Responsive affidavits and documents shall be served upon other parties and\or counsel and filed with the commission no later than three business days prior to the date set for hearing except that responses to motions for protective orders shall be filed no later than three business days prior to the date set for hearing.
(3) Filings subsequent to the initial complaint or referral.
Unless otherwise allowed by these rules or by staff attorney to the commission, in no event shall any filing made less than three business days prior to the date set for action by a panel of the commission or the full commission be considered by such panel or the full commission in its deliberations.
(A) Unless otherwise permitted or required by these rules, pleadings and motions shall conform to Ohio Civil Rules 7; 8(A)-(F) and (H); 9(A)-(F); 10; 11; 12; 13(A) and (E)-(H); 14; 15(A-(D); 16(1), (2), (4), (5), (7)-(10) and last paragraph. Upon application to and approval of staff attorney to the commission, permissive joinder pursuant to Ohio Civil Rule 13(B) may be allowed.
(B) Staff attorney to the commission may, in the sole discretion of the staff attorney, consolidate cases involving substantially similar parties and issues.
(A) Parties shall be designated as complainant(s) and respondent(s), cross-complainant(s)/respondent(s), counter-complainant(s)/respondent(s) and third-party complainant(s)/respondent(s).
(B) Unless otherwise permitted or required by these rules, Ohio Civil Rules 18(A); 19(A)-(D); 20(A); 21; and 25(A)-(B) shall apply to proceedings before the commission.
(C) Staff attorney to the commission may, in the sole discretion of the staff attorney, consolidate cases involving substantially similar parties and issues.
(A) Prior to availing themselves of the powers of the commission to compel discovery, a party shall reasonably submit to the request of another party and produce the necessary documents, information or other discovery items without the intervention of commission staff or by use of any of the powers available to the commission. If such efforts fail, an aggrieved party may petition the commission to compel the necessary discovery.
(B) Staff attorney to the commission shall have authority to do all acts in furtherance of the intents, purposes, and procedures set forth herein, except sanctions may only be imposed by the full commission.
(C) Unless otherwise permitted or required by these rules, Ohio Civil Rules 26(A), except that inspection of real property and physical/mental examinations shall not be allowed, (B)(1), (3)(4); and (C)-(E); 27(A), (C)-(G); 28; 29; 30; 31; 32; 33; 34; 36 and 37 shall apply to proceedings before the commission. All discovery subpoenas shall be served by the requesting party as provided in paragraph (B) of rule 3517-1-04 of the Administrative Code.
(A) Upon the filing of a complaint which is required to receive or eligible for an expedited hearing, staff attorney to the commission shall make the necessary determination and notify complainant of said determination and the date and time of the probable cause panel meeting, by use of the means outlined in paragraph (C) of rule 3517-1-03 of the Administrative Code.
(B) Commission staff shall also use its best efforts to notify the respondent or respondents of any complaint which is to receive an expedited hearing of the determination and the date and time of the probable cause panel meeting. However, failure to notify the respondent(s) shall not delay or necessitate the continuance of any probable cause panel meeting scheduled in compliance with these rules and the Revised Code.
(C) The probable cause panel meeting shall be held within two business days of the determination by the staff attorney to the commission that an expedited hearing is proper. However, if good cause is shown that establishes that fairness and equity for all parties will be met, such meeting may be extended by the staff attorney to the commission to such date that is not later than seven business days after the date of filing of the complaint. Further continuances may be granted by staff attorney to the commission, the commission chair or the panel chair when a request is made by or on behalf of all parties to the complaint. In no event shall a continuance be granted which would extend the time for a meeting beyond that allowed by statute.
(D) At the probable cause panel meeting:
(1) The panel shall not hear arguments, receive evidence or take testimony unless:
(a) All parties (whether pro se or through counsel) have filed a stipulation agreeing to such procedure and a majority of panel members, in their sole discretion, agree to do so; or
(b) Any panel member wishes to request specific information which will aid in a proper determination of the matter.
(2) The panel will review the complaint and any additional information which may be presented to it and receive any recommendation from counsel.
(3) After a review of all information available at the meeting, the panel shall:
(a) Dismiss the matter, or any part thereof:
(i) If the panel finds that there is no probable cause;
(ii) Upon request of the complainant; or
(iii) If commission jurisdiction is not found; or
(b) Find that there is sufficient probable cause and refer the complaint to the full commission for further consideration; or
(c) Find that the evidence is insufficient for the panel to make a determination and request that an investigatory attorney be appointed. Such investigatory attorney shall be selected by the staff attorney to the commission upon recommendation by the chair and vice-chair of the commission. If such request is made, the panel shall also refer the matter for a timely hearing before the full commission.
(E) The full commission shall hear the complaint not later than ten business days after referral by the panel unless there is good cause for the matter to be continued consistent with paragraph (B) of rule 3517-1-06 of the Administrative Code. Said hearing shall be held in the manner outline in rule 3517-1-11 of the Administrative Code.
(A) Preliminary review.
All cases not subject to the provisions of rule 3517-1-10 of the Administrative Code shall be subject to the following provisions. A preliminary review of the allegations shall be held by a probable cause panel or the full commission, at the discretion of the staff attorney to the commission. At the preliminary review stage, the body hearing the case shall review all pleadings, evidence, and motions before it to determine jurisdiction, sufficiency of the complaint, and whether probable cause exists for the full commission to determine whether a violation of Ohio election law has occurred.
(1) At the preliminary review stage of the proceedings, the body hearing the case shall not hear arguments, receive evidence or take testimony unless:
(a) All parties (whether pro se or through counsel) have filed a stipulation agreeing to such procedure and a majority of members present, in their sole discretion, agree to do so; or
(b) Any member wishes to request specific information which will aid in a proper determination of the matter at the preliminary review stage.
(2) If the preliminary review is held before a probable cause panel, the panel may:
(a) Dismiss the matter, or any part thereof, upon request of the complainant, or if commission jurisdiction, sufficiency of the complaint, or probable cause are not found; or
(b) Find that sufficient probable cause exists such that the panel may recommend to the full commission that there was a violation of Ohio election law under the jurisdiction of the commission, by the applicable standard of proof, as to any or all of the allegations brought before it, and to recommend that the full commission:
(ii) Find that there is good cause not to impose a fine or refer the matter for prosecution; or
(2) If the preliminary review is held before the full commission, the commission may:
(a) Continue the preliminary review for good cause shown; or
(b) Amend the complaint or referral, sua sponte, to include additional parties and/or allegations and continue the preliminary review to permit proper joinder and notice pursuant to these rules, if it finds additional apparent violations sufficiently alleged against any party or other person; or
(c) Request that an investigatory attorney be appointed, if it finds that the evidence is insufficient but that further review is necessary. Such investigatory attorney shall be selected by the staff attorney to the commission upon recommendation by the chair and vice-chair of the commission. If such request is made, the panel shall also refer the matter for a timely hearing before the full commission.
(d) Set the matter for a hearing by the full commission, if it finds that a significant factual dispute exists or there is uncertainty as to a material fact necessary to determine whether there is a violation, as to any or all of the allegations; or
(e) Make a final disposition in the case and do one of the following:
(i) Dismiss the case, or any part thereof, upon request of the complainant, or if commission jurisdiction, sufficiency of the complaint, or probable cause are not found; or
(ii) Find good cause not to impose a fine or refer the matter for prosecution; or
(1) Commission staff shall establish a date for all cases which have been set for hearing before the full commission. Such hearing shall be set at the first available date on the commission's schedule
(2) At the hearing:
(a) The chair shall call the case by caption and case number and request that the parties, and any counsel for the respective parties, identify themselves and indicate their presence;
(b) The parties shall identify any and all witnesses expected to be called, which witnesses will be sworn to give truthful testimony by the chair. A party may then request separation of witnesses;
(c) Parties may make opening statements, as directed by the chair, briefly outlining their cases;
(d) The chair shall direct the testimony of witnesses and presentation of evidence by the parties. Parties shall examine and cross-examine witnesses who shall then be subject to questioning by the members of the commission. Re-direct and re-cross examination of each witness shall continue at the direction of the chair and a manner which assures fairness and equity to all parties;
(e) At the conclusion of the complainant's case, a respondent may move to dismiss some or all of the allegations for which the respondent asserts that the complainant did not produce sufficient evidence. The commission will consider such motion and take action consistent with the evidence presented;
(f) At the conclusion of the respondents case, a complainant may request an opportunity to present rebuttal witnesses and evidence, which presentation shall be at the reasonable discretion of the chair;
(g) Parties may make closing statements briefly summarizing their cases and the evidence presented;
(h) At the conclusion of the presentation of witnesses and evidence by the parties, the commission may:
(i) Leave the record open and continue its deliberations for the purpose of securing documents or testimony as the commission determines to be necessary in order to effect a just result;
(ii) Continue the matter for additional time to allow members to consider the record established by the parties as the commission determines to be necessary in order to effect a just result;
(iii) Announce its finding based on the proper standard of proof as outlined in rule 3517-1-15 of the Administrative Code. If the commission finds that no violation has occurred, the case is complete and the parties shall be dismissed. If the commission finds that a violation has occurred, it shall either impose a penalty in accordance with paragraph (B) of rule 3517-1-14 of the Administrative Code, refer the matter to the appropriate county prosecutor in accordance with paragraph (C) of rule 3517-1-14 of the Administrative Code, or find that good cause has shown not to impose a penalty or refer the matter for prosecution;
(a) A party may file a request for issuance of subpoenas and subpoenas duces tecum and shall do so in a timely manner. All subpoenas shall be issued by the staff attorney to the commission unless a timely motion to quash is filed with the commission. If, in the reasonable judgment of the staff attorney to the commission, the request for subpoena is considered to be overly burdensome or requested solely for the purpose of harassment or delay, the subpoena shall not be issued. A request for appointment of a suitable process server may be filed with the commission. In such case, it shall be the responsibility of the requesting party to ensure service and proper return of service of the subpoena.
(b) The commission may issue a subpoena to any person in the state compelling the attendance of such person and the production of relevant papers, books, reports, and other documents at any proceeding of the commission, whether by a panel or the full commission, or at any deposition which shall aid the commission in assuring a just, fair, and equitable disposition by the commission. Section 101.42 of the Revised Code governs the issuance of subpoenas insofar as applicable. The fees and mileage of the sheriff and subpoenaed witnesses shall be the same as that allowed in the court of common pleas in civil cases in the Franklin county court of common pleas. Fees and mileage shall be paid in the same manner as other expenses of the commission are paid. In order to receive payment for fees and mileage, a subpoenaed witness must submit an application on a form which may be obtained from commission staff.
(4) Rules of Evidence.
(a) Prior to the hearing, the parties and/or their counsel are expected to file with the staff attorney to the commission a joint, written stipulation as to all matters not at issue and all exhibits which may be introduced without objection.
(b) A respondent or witness may refuse to answer questions based on the right against self-incrimination guaranteed by the fifth amendment to the United States Constitution and Article I, Section 10 of the Ohio Constitution.
(c) The commission shall take into account all reliable, probative and substantial evidence submitted by the parties. The commission may exclude evidence which is cumulative, duplicative or irrelevant and hearsay evidence which lacks indices of reliability.
(d) The commission may accept affidavits into the record. Affidavits offered at a hearing may be excluded by the commission if a party's case will be seriously prejudiced by the absence of an opportunity for cross-examination of the affiant. An affiant's address must be included in or accompany the affidavit.
(e) The commission may accept into the record documents prepared by or file-stamped by the secretary of state, a board of elections, or any other Ohio governmental body, without the necessity for formal certification by such body. Documents which lack the proper certification may be excluded by the commission if a party's case will be seriously prejudiced by the absence of such certification or the documents lack the necessary indices of reliability without such certification. Such determination will be made by the staff attorney prior to a hearing or by the chair at such hearing.
(f) All exhibits shall be consecutively lettered or numbered by the commission's staff as they are received in the office of the commission or at a hearing. Exhibits in support of the allegations shall be lettered. Exhibits submitted by respondents shall be numbered. Exhibits in any preliminary proceeding are carried forward to any hearing in the same case and need not be re-offered at the hearing. The commission may accept copies of documents in lieu of originals.
(g) Unless specifically excluded by the commission, exhibits are made a part of the record. A party may proffer any exhibit or testimony excluded by the commission. A proffer of testimony shall be made to the court reporter at the conclusion of the hearing. A proffer of an exhibit shall be made at the time of its exclusion or at the conclusion of the hearing.
(5) Conduct of hearing.
All parties and counsel shall observe usual decorum as would be expected in a courtroom. The chair shall rule as to admissibility of evidence and/or other matters subject to objection or regarding the conduct of the hearing.
All meetings of the commission shall be conducted pursuant to section 121.22 of the Revised Code, the Ohio Sunshine Law, as may be amended from time to time, and a stenographic recording shall be made of all proceedings of the commission, whether before a panel of the commission or the full commission.
(A) In any action before the commission, whether before a panel of the commission or the full commission, if the allegations of the person who filed the complaint are not proved, the commission may find that the complaint is frivolous and may order the complainant to pay costs. Such costs paid to the commission shall be deposited in the Ohio elections commission fund as established in division (E)(2)(b) of section 3517.102 of the Revised Code.
(B) In those instances in the Revised Code where the commission may assess attorneys fees, the commission may hold a hearing to establish the reasonableness of such fees, and the party against whom the finding is made shall pay such fees. Payment shall be made as directed by the commission.
(A) Good cause.
Upon review of the evidence before it, the commission may find that a violation of Ohio election law has occurred, but that good cause has been shown for the commission not to impose a fine or refer the matter for prosecution.
(a) Failure to file, late filing or filing incomplete or inaccurate campaign finance reports (division (A), (B), (C), (D) or (E) of section 3517.13 of the Revised Code)...............................$15 - 100/day
(b) Failure to file, late filing or filing incomplete or inaccurate designation of treasurer (section 3517.081 of the Revised Code) or statement of contributions or expenditures (division (D) of section 3517.10 of the Revised Code)....................................................$15 - 500/day
(f) Failure to file, late filing or filing incomplete or inaccurate issue petition circulator's statement of contributions and expenses (division (U) of section 3517.13 of the Revised Code).................................$15 - 250
(k) Failure to file, late filing or filing an incomplete or inaccurate report of gifts received by a political party (divisions (F)(1) and (F)(2) of section 3517.101 of the Revised Code).............................$15 - 10,000
(l) Unlawful reimbursement, acceptance, use, or conversion of anything of value from a campaign fund or political party (divisions (O), (P), and (Q) of section 3517.13 of the Revised Code)...............................$50 - 1,000
(m) Making a contribution or knowingly contributing in an amount greater than the statutory limitations (divisions (B) and (C) of section 3517.102 of the Revised Code).....................1-3 times the amount of the contribution
(n) A legislative campaign fund that improperly maintains an amount in excess of the statutory limitations (division (F)(2) of sections 3517.102 of the Revised Code)......................................................$25/day
(q) Unlawful acceptance of a contribution from a state employee (division (B) or (C) of section 3517.092 of the Revised Code).........................1-2 times the amount of the contribution, plus the return of the contribution
(r) Unlawful transfer from one restricted account to another, of a campaign committee, political party or legislative campaign fund (divisions (S) and (T) of section 3517.13 of the Revised Code)........................1-3 times the amount of the transfer, whether funds or assets
(s) For any violation of the restrictions on the solicitation of funds for payment of debt from a prior period (section 3517.108 of the Revised Code).................................1-3 times the amount of the solicitation
(a) Use of any money or property of a corporation, non profit corporation, or labor organization to or for the benefit or, or in opposition to, a political party, a candidate, a legislative campaign fund, a political action committee, or any organization that supports or opposes a candidate or any other act in violation of section 3599.03 of the Revised Code (division (A) or (B) of section 3599.03 of the Revised Code).................$100 - 5000
(b) Any deduction or disbursement of funds without proper authorization or any other act in violation of section 3599.031 of the Revised Code (division (G) of section 3599.031 of the revised code)...............$50 - 500
(4) Fines imposed by the commission for violations which occurred prior to August 24, 1995 shall be made by using the schedule in paragraph (B)(1) of this rule but no fine shall be imposed which exceeds the maximum fine amount as outlined in the pertinent section of the Revised Code which was in effect at the time of the violation.
(5) In determining the amount of a fine and whether to impose the maximum or minimum penalty allowable, the commission shall take into consideration, but shall not be controlled by, the following:
(a) Prior violations of Title XXXV of the Revised Code by the party before the commission;
(b) Whether such actions were knowing or purposeful;
(c) Whether the required filing has been made with the proper filing office, and the promptness of the filing;
(d) Any outstanding fines for a violation of Title XXXV of the Revised Code;
(e) The nature and circumstances of the violation and whether the nature and circumstances of the violation tend to excuse or justify the violation, regardless of whether the nature or circumstances establish a defense to the violation;
(f) Whether the violation occurred during the course of a campaign and was to have been reported prior to the day of the election; or
In addition, the commission may, but is not required to, consider prior penalties imposed by this commission involving similarly situated parties where the circumstances would make such consideration appropriate..
(a) Fines by the commission for violations by a candidate's campaign committee or treasurer shall be imposed jointly on the campaign committee, the treasurer and the candidate.
(b) Fines by the commission for violations by a political committee or political party, or its treasurer, shall be imposed jointly on the political committee or political party and the responsible treasurer or other responsible individual that is before the commission.
(c) Fines by the commission may be imposed separately on the campaign committee, political action committee, political party, legislative campaign committee, or other committee or organization, and on any individual that the commission finds to have committed the violation, if sufficient evidence is presented that would establish that the violation may be imposed on less than all parties to the case.
(d) In all cases, fines may only be imposed against persons who are respondents before the commission.
(a) Any fine imposed by the commission shall be paid no later than thirty days after the written notice thereof is mailed to the respondent.
(b) Payment shall be made at the commission's office in person or by mail. Checks shall be made payable to the "Ohio Elections Commission." Such fines paid to the commission shall be deposited in the Ohio elections commission fund of the state of Ohio.
(c) If a fine is not paid, the matter shall be referred to the Ohio attorney general for collection. Staff attorney to the commission shall take any action necessary and work with the attorney general in furtherance of the interests of the commission to reconcile any case which commission staff has referred for collection.
(C) Referral to prosecutor. When the commission finds a violation, by the appropriate evidentiary standard, of sections 3517.081 to 3517.13, 3517.17, 3517.18, 3517.20 to 3517.22, 3599.03, and 3599.031 of the Revised Code, it may refer the matter to the appropriate county prosecutor. The appropriate county prosecutor is:
(2) In all other cases, either
(a) The prosecuting attorney of Franklin county; or
(b) If the candidacy or ballot issue is submitted to the electorate in a single county, the prosecuting attorney of that county; or
(c) If the candidacy or ballot issue is submitted to the electorate in a multi-county district, the prosecuting attorney of the same county in which the petitions or documents relating to the candidacy or ballot issue were filed with the board of elections for that multi-county district.
(D) In any case before the commission wherein a party has committed a violation but the commission has determined that good cause exists not to impose a fine or refer the matter for prosecution, the commission may issue a public reprimand which shall include but not be limited to statements made by the commission members at the meeting at which the decision of a case is announced.
Eff 8-19-85; 4-15-88;
Rule promulgated under: RC 119.03
Rule authorized by: RC 3517.152
Rule amplifies: RC 3517.082, 3517.091, 3517.092, 3517.10, 3517.101, 3517.102, 3517.108, 3517.11, 3517.13, 3517.155, 3517.156, 3517.18, 3517.99, 3517.991 to 3517.993, 3599.03, 3599.031
(A) No party adversely effected by a finding of the commission may request reconsideration of that finding unless the commission has included a provision which specifically authorizes the commission to reconsider its finding.
(B) Any party adversely effected by a finding of the commission which contains such a provision may request reconsideration of the finding by submitting a letter requesting that the commission reconsider its finding within ten days of the mailing of the notice of disposition by commission staff.
(C) In order to assure just results, staff attorney to the commission may recommend that the commission reconsider a finding if, in the reasonable discretion of the staff attorney, that finding of the commission did not give proper due process or imposed an undue burden on a party before the commission. However, no reconsideration shall be recommended under this provision and the commission shall not reconsider any finding after a date which is one year after the date on which the commission made its finding.
(A) As used in these rules:
(1) "Standard of proof" means, with respect to alleged violations of sections 3517.08 to 3517.13, 3517.17, 3517.18, 3517.20, 3599.03, and 3599.031 of the Revised Code, "preponderance of evidence"; and with respect to sections 3517.21 and 3517.22 of the Revised Code, "clear and convincing evidence".
(2) "Affidavit" means a sworn statement verified and sealed by a notary public and including as a portion of the jurat the following language, "sworn to and subscribed in my presence" and in a form substantially in accordance with section 2935.19 of the Revised Code.
(3) "Complainant(s)" means the person(s) making the complaint
(4) "Respondent(s)" means the person(s) alleged to have violated Ohio election law.
(5) "Filed" means the date and time when an item is received by the staff of the commission, and the placement of a stamp acknowledging receipt by the commission on the documents, filed in the designated commission office during the normal business hours of the commission or at any meeting held by the commission. Filing may also include the transmission to the commission office by any electronic or other means at the discretion of the staff attorney to the commission, as long as the original of such transmitted document is timely received in the commission office.
(6) "Costs" of the commission shall include but not be limited to the following expenses:
(a) Copying charges of any document filed with the commission or produced by the commission for use in the case;
(b) Mailing charges for any notice or letter sent;
(c) Delivery charges incurred in notifying and informing commission members;
(d) Expenses incurred by a commission member for attending the meeting;
(e) Services of a court reporter;
(f) Any rental charges incurred for any reason directly allocable to the case;
(g) Subpoena fees and charges whether incurred by the commission or on behalf of the commission;
(h) Reasonable attorney fees as determined by the commission and as allowed by the Revised Code.
(A) The manner of giving public notice of the proposed adoption, amendment, or recision of any rule of the Ohio elections commission under Chapter 119. of the Revised Code shall consist of posting the notice in a prominent place in the office of the Ohio elections commission, the posting of a notice in a prominent place in the offices of the secretary of state and the mailing of a notice to every board of elections in the state of Ohio with instructions to post the notice in a prominent place in the office of the board of elections.
(B) The form of such notice shall consist of a statement of the Ohio elections commission's intention to consider the adoption, amendment, or rescission of a rule or set of rules and a general statement of the subject matter to which the proposed rules relate, and the date, time, and place of the hearing on the proposed action.
(C) The notice described in paragraph (B) of this rule must be posted in the office of the Ohio elections commission and the office of the secretary of state and mailed to each of the boards of elections at least thirty days prior to the date of the hearing.