Removing a sitting commissioner from office is a lengthy, potentially expensive process

Even as she remains at the center of a controversy over what her fellow commissioners have called an "inappropriate relationship" with a former subordinate, Lorain County Commissioner Michelle Hung remains well-protected in her elected seat as long as she declines calls to resign from her fellow Republicans. There aren't many ways she or any other commissioner could be removed except if charged with or convicted of a felony or recalled by voters in a process that probably would stretch well into 2022. A recall election is possible, but it takes time and money with no guarantee of success, a legal expert told The Chronicle. Hung and Harry Williamson, former Lorain County 911 director, can be seen kissing in February on a video recording from a security camera in a county building. Once the tape became public, Hung's colleagues on the Board of Commissioners — Dave Moore, a Republican, and Matt Lundy, a Democrat — accused her of having an "inappropriate relationship" with Williamson. Although it remains unclear whether Hung and Williamson's relationship preceded her and Moore's vote Jan. 4 to hire Williamson — Lundy voted against the hiring — Moore and Lundy voted Aug. 3 to fire Williamson after the relationship became public. Hung abstained. Moore is among several Republicans who've urged her to resign because of the relationship. Hung told The Chronicle on Wednesday she intends to stay in her elected position. "I'm not resigning," she said. The question then is how might the public remove a sitting county commissioner from office? Ohio law says one way is through a recall election — a rare and also potentially expensive process for the taxpayers. Recall petitions containing valid signatures equal to at least 15 percent of the total votes cast in the most recent municipal election must be collected within 90 days of the first signature and submitted to the board of elections. That includes elections for county commissioner. "A petition shall contain a general statement in not more than two hundred words of the grounds upon which the removal of the person is sought," Section 705.92 of the Ohio Revised Code states. Once petitions are submitted to the board of elections, the official being recalled then has five days to resign. If he or she does not, an election is held at the next primary or general election that is set more than 90 days from the date the recall petitions are certified. Had a drive to recall any countywide elected official happened immediately after the November 2020 election, it would have required signatures equal in number to 15 percent of the 158,732 votes cast — approximately 23,810, using the 2020 election numbers — to be collected within 90 days to be considered valid. There also is some suggestion such a recall can only be held after the official in question has served one full year of his or her term. There don't appear to be many examples of county commissioners being recalled either in Lorain County or in Ohio. A fight between the union representing Mahoning County sheriff's deputies and Mahoning County commissioners over potential layoffs at the sheriff's office led to union officials threatening to recall all three sitting commissioners in 2010. In the end, no recall was conducted. "Short of a crime or dereliction of duty," there's nothing an elected prosecutor can do unilaterally to remove a sitting county commissioner from office, according to Portage County Prosecutor Victor Vigluicci, a Democrat who has held that office since 1994 and has twice served as president of the Ohio Prosecuting Attorneys Association. "It's up to the voters," he said. Officials facing recall also tend not to resign, according to Jonathan Entin, a professor emeritus of law and adjunct professor of political science at Case Western Reserve University School of Law. The timeline for a potential recall election is long, he said. There's the 90 days to collect signatures, the five days an official has to choose whether to resign and then waiting until the next primary or general election to see the matter on the ballot, Entin said. "We're talking about a recall that could take place sometime in the spring of 2022 at the earliest," he said, or even in the 2022 general election when Ohioans will be voting for a governor and a new U.S. senator. "That's a really long time to have someone you don't think is fit for office still exercising authority. You might not have a lot of leverage." There also is the cost. A provision in Ohio law provides that if the target of the recall defeats it, county taxpayers have to foot the bill. Entin said if a county commissioner or other municipal officeholder was charged with a felony, he or she could be suspended from office by the Ohio Supreme Court. In that situation, what's called a 3.16 Special Commission could be asked to step in at the request of the county prosecutor. It is a three-member commission made up of retired justices or judges, with at least one of the members of the commission being from the same political party as the public official who was charged. The prosecutor may request a 3.16 Special Commission be formed, which can't happen until after 14 days have passed from the date of the request and only if an official is charged with a felony in state or federal court, according to the Ohio Supreme Court. It applies only to elected officials excluding the governor, members of the General Assembly, elected heads of state agencies and judges, and can be requested by a county prosecutor if that person "determines that the felony relates to the official's public office," according to the Ohio Supreme Court. Any elected official facing the special commission would also have a chance to defend himself or herself in the 14-day period after a prosecutor asked the Ohio Supreme Court to form the commission. The official would be allowed either to agree to be suspended or submit a written statement "setting forth the reasons why the public official should not be suspended from office," according to the Ohio Supreme Court. The commission would then determine "whether the public official's administration of, or conduct in the performance of the duties of, the official's office, as covered by the charges, adversely affects the functioning of that office or adversely affects the rights and interests of the public and, as a result, whether the public official should be suspended from office," according to the Ohio Supreme Court. If the special commission says "no" to the question above, its determination is final. If it determines that, "yes," the public official behaved that way, that finding is put in writing after giving the public official a chance to contest the ruling. A suspension would take effect immediately and a public official may be replaced during his or her suspension. Appeals of the commission's ruling also are possible. Meetings of a 3.16 Special Commission are not open to the public and records of its proceedings only become open to the public after it issues a final determination. That's where the authority of the state's highest court stops when it comes to suspending or removing an elected official from office. "The 3.16 Commission process is the only authority the chief justice has in that regard," said Anne Yeager, a spokesperson for the Ohio Supreme Court. And Entin said this option is not available to Lorain County because Hung has not been charged with a crime. An "inappropriate relationship," as Moore and Lundy have called Hung's relationship with Williamson, is not enough to trigger the process, he said. "It's conceivable that if she was in that relationship at the time that she might have had a conflict of interest in voting on" Williamson's hiring Jan. 4, he said. Former U.S. President Bill Clinton's 1998 scandal also was different: Entin said Clinton committed the serious criminal offense of perjury. "It was about the fact that he had not told the truth under oath," he said. "Here, apparently, there's no such suggestion. She shouldn't have had this sort of relationship, but apparently there's no suggestion at this point that Commissioner Hung violated the law in any way." Entin also said he wasn't aware of "any kind of provision in the law where a county judge could unilaterally remove a commissioner" from office. Some charter cities and counties — Cuyahoga and Summit counties have charter forms of government — have provisions in their charters for removal of officials. Lorain County is not a charter form of government, despite attempts in the past to create a charter government and a larger board to govern the county. The standard county leadership body in Lorain County and 85 other counties remains the three-member board of commissioners. Entin said the Ohio Ethics Commission has limited authority in penalties or sanctions it can impose, "but sometimes even some sort of a finding by the Ethics Commission that an official had behaved in an unethical sense … could certainly serve as a cloud over the official going forward," he said. With Moore and Republican officials such as Wellington Area GOP chairman and former ally Bob Meilander pressuring Hung to resign, it might be that a challenge arises to Hung when or if she seeks reelection for a second term starting in 2024. "The fact it is her fellow Republican, and not a Democrat on the commission that is pushing for this, it might encourage someone else to challenge her in the Republican primary," Entin said. "Even if she survived the primary, any Democrat running for that seat would use this whole controversy against her." Whatever happens "won't happen very quickly," Entin said, as Hung presumably still has three years remaining in her first elected term as commissioner, barring a recall effort, a serious criminal charge or her resignation. "The political fallout and political consequence won't happen very quickly either," he said. "There's no quick fix unless somehow this official decides to resign." Hung said Wednesday she isn't worried about being the target of a recall. "What I worry about daily and what keeps me up at night is doing the work for the residents of the county," she said. "I do come to work every day and do my job. If that's what the powers that be want to do and spend their time, energy and money on, mounting a recall election, I can't control that. I can control doing the work, being involved, being engaged, working on the priorities that matter to the residents." Contact Dave O'Brien at (440) 329-7129 or dobrien@chroniclet.com. Follow him @daveobrienCT on Twitter.