Ohio Election Integrity Commission - 10-14-2026

I welcome you today and to this meeting of the Ohio Election Integrity Commission, and now call this meeting to order. For the record, a court reporter will create a record of these proceedings. The channel is on this meeting line on its website, where it will be archived. To determine whether a quorum of the Ohio Election Integrity Commission is present, I will now ask Ms. Riggins, who is serving as secretary, to call the roll.

Yes.

Present.

Present.

Here.

Here.

So moved.

Second.

Aye.

So moved.

Second.

Yes.

On page two.

The third paragraph up from the bottom that begins, Ms. Williams, I would make the following addition at the end of line 2 where it says that if they deliberated what to recommend to the entire commission in other words I think we should have greater clarity because we have this subcommittee what she said could be a violation So I wanted to, I think that's accurate in terms of what she said. I can go back and look at the video or whatever it is. So that sentence would then read, Ms. Williams raised the issue that forming a subcommittee involving multiple commission members could violate the requirements of the Open Meetings Act if they deliberated and came to a decision regarding what to recommend to the entire commission. I believe that's what she said, but she could correct me if she wishes. My recollection on that, if I may

My recollection on that was if it was more than two members Two members, so like Sandy and myself could discuss matters But we could not have more than two Yeah, that's what I thought it would be originally But she made a further clarification, I thought that we can't specifically deliberate and make a recommendation to the entire body. But she's here and she can tell us and I'm happy to abide by her correction.

Good morning. Good morning. Heather Williams, Assistant Attorney General representing the Commission. So at the last meeting, I know that we discussed the Open Meetings Act as it related to emails, and the question of subcommittees did come up at the end, and I did provide the commission after the meeting with clarification via memo. It is attorney-client privilege, but to explain that the subcommittee would still be subject to the Open Meetings Act, and I believe that the scenario was to have two members on this subcommittee, which means that any time both members were present somewhere, it would be a majority because it all the commission And then it would be if there was deliberation or coming to an agreement or a decision and that would be something that would violate the Open Meetings Act if it was not done in public

Yes, of course.

You want to go ahead and read it again?

I don't recall what I said exactly at the meeting last time, but because I did the research and provided the memo after the meeting, I'm not sure that I went that far in depth into the subcommittee discussion, so I don't know if that would be accurate to update the minutes from last meeting, given that I did the research afterwards.

Mr. Chair?

My recollection is the same as Mr. Brown's. I thought we were told that two people could meet, and since that was not a quorum, then they were able to go ahead and meet and there wouldn't be an issue.

Looking at the meeting minutes, I think that all I discussed was the number of people and that forming a subcommittee would potentially be a violation of Open Meetings Act depending on how that body were to operate. so that's why I followed up with a memo after the fact, but I don't believe that I gave such detailed input at the last one, so I wouldn't feel comfortable amending last meetings, or I wouldn't recommend amending last meetings' minutes to reflect something that came after the meeting that could be reflected and clarified in this meeting right now.

In deference to you, then I'll withdraw the addition, but is what I said true?

Yes.

Yes. That would be problematic.

Okay.

We're pretty much stuck, for purposes of the minutes.

kind of stuck with what was said at the meeting.

Go ahead, sir

Okay. And that's what you think you actually said, right?

Any other revisions?

Go ahead, sir.

That's fine. Okay.

Okay.

Go ahead, sir.

Okay. All right, any other questions? Any other comments?

We do have a motion and a second, right?

Go ahead and approve.

All in favor, aye.

Opposed, same sign.

Okay. We have several items listed under old business. First would be the approval of the 2027 meeting schedule. Everyone should have received a copy of that. Ms. Taylor, did you want to say anything about that, ma'am?

So moved.

Second.

Aye.

Motion carries.

So I had previously handed out four alternatives for suggested proposals to make to the legislature. I think the one I was most interested in was D, which basically retains the 180-day schedule, but if we go past it, then we would be obligated to provide to our appointing authorities a written report as to why we couldn't meet the 180-day deadline and then keep supplementing that every 30 days. I think Commissioner Kirshner thought, my recollection is he said, well, maybe that was too short. We should lengthen it. So I'm happy to talk about any of the other alternatives, but I was kind of focused on the last one.

Yes. I mean, I would make a motion to do that subject to, before it makes such a motion, to hear from other commissioners and perhaps modify it accordingly.

I have a couple thoughts, if I may.

Comment. My understanding is that the 180-day deadline is established by the legislature to ensure timely resolution of matters that come to the commission. And I think it's very important to the legislature. I believe Commissioner Kirscher could probably comment on this a little bit more, but historically cases did not get resolved as expeditiously as the legislature may have wanted, and so they put a cap in there or deadline in there. I think 180 days is a very short deadline considering all that has to occur within that period. As I've mentioned before, when matters are referred to a hearing officer, the hearing officer will then adjudicate the matter, can be appealed to us. Once it comes to us, we could remand it to the hearing officer for further investigation, for further findings, and then it has to come to us again. This could bounce back and forth one, two, three times. I'm not saying it will happen often, but it could happen. and there's no provision within this statute that tolls that deadline during this process and eventually you run into a hard cap at 180 days. So I think we still need to have a hard cap, but I think there needs to be some provision that allows us discretion to extend that. Whether it is under subsection D or provision D that Sandy has recommended or C, which allows for a good cause to be shown to extend that deadline as determined by the commission, I would certainly recommend something that would allow us some degree of flexibility, but I think a hard deadline of 180 days can present unworkable challenges potentially.

Kind of like the Speedy Trial Act in criminal cases.

92-70-day rule, you have to bring them to trial, but by agreement of parties, they can extend that date. Something to that effect. I think that, I mean, certainly I think the parties should have the option, the opportunity to extend that deadline.

So are we going to recommend specific language, or are we just going to look at the General Assembly and look at it in terms of some sort of language, let the language up to the General Assembly? If we make a recommendation, do we have an idea of when the General Assembly may consider that?

Yeah, I don't know. Because we have a couple issues that I think probably should be addressed. One is, of course, having substitute members for recusal, some types of matters that we've addressed before that I think need to be legislatively addressed. Well, the General Assembly is not in session, correct, until they're coming back after the general election in November?

Yeah. All right, so they're not going to be back until probably the end of the first week or the second week of November, and they'll be busy for the next month and a half.

So do we want to prioritize?

to me would be the 180-day hard deadline and substitute members for recusal purposes. if a member has to recuse themselves of having a method by which that can be resolved. A third issue, which I think is addressed later, is tie votes, which may be less important if we have a substitute member situation.

Well, I'm not sure that we have consensus. I'm happy to give the legislature to just say this is a matter of urgency from our perspective, this 180-day deadline. Here are four proposals any of which I assume would be acceptable or something else but the 180 hard cap has to be addressed somehow Okay It seems around the table that seems by agreement with the parties all of us feel that's probably the most important consideration for the General Assembly.

Well, it strikes me, Mr. Chair, that if one of the parties were not interested in extending, but it was necessary for the Commission to have it extended, then that might be problematic for the Commission. I believe in the common police court setting, and I don't know for sure, I believe there are reporting obligations from the court to the Supreme Court, if they go beyond, for example, a year, to explain why a matter has been on the docket for more than a year. I'd like maybe something similar to that here for us to say, look, typically we try to hold the 180-day requirement, but for these extenuating circumstances, we can't hold it here, and we need that additional time to leave it solely to the parties to potentially tie the Commission's hand if one disagreed could create problems for the Commission. So my proposal would be, you know, that we would hold in any circumstance that we could to the 180-day deadline, but we could also provide written justification to whatever entity, the legislature or otherwise, that we would need additional time to handle a matter. How you define that, you know, may be subject to debate. I would say, you know, good cause and our good faith determination should be reasonable.

But I just worry if we need to obtain the assent of the parties that might put us in an awkward position.

Because it contemplates court if you don't have an agreement, you've got to go to trial, for example, on 90 days if they're incarcerated. On a criminal case. Just as an example, I'm not saying that it's... Maybe on a civil case, you would just have to explain, and I'm not certain to the Supreme Court, hey, it's been on my docket for a year, and here's the reason, and here's the plan to get it resolved. Okay.

No, no, go ahead, Mr. It may be most suitable to maintain that 180-day deadline that can be extended for good cause shown and determined by the panel or by the commission. and upon extending it then we would then also provide to our appointing authorities the basis upon which good cause was granted to extend that deadline. So it's kind of a blend of C and D a little bit.

Could you do that again, please?

I mean, Matt, my sense is in that context, we are giving good cause. And the written report goes to who, then?

The folks who appointed us?

Okay.

I just wanted a clarification. Okay. Any other thoughts?

How does the commission want to proceed this morning on this issue?

Is that a motion?

There's objection. Is there a second?

All right. Go ahead, Sandy, for the discussion.

Further discussion on the motion? Does everyone understand it? All of the motion signify by saying aye.

Opposed, same sign.

Okay. Item C, further discussion regarding OEIC operational policies, page 4, paragraph 10, pertaining to tie votes. Commissioner McNair.

I'm a little confused.

I'm sorry.

Okay.

So we'll go ahead and I didn't obtain the motion that we go ahead and table item C. Do we have a second? All in favor, aye.

We have a motion to table.

Are you withdrawing the motion to table?

No, I was just this one issue.

Yeah, I guess I am withdrawing it. All right.

Concur with that? I'm unclear what we're tabling.

Do you want to table?

All right, then let's have a discussion about it.

If I could, Mr. Chair.

I think we may be on D4D Review Administrative Code Rule. Oh, I'm sorry.

It specifically refers to tie votes. So I just don't want us to move too far ahead in the agenda. I think there were three issues. One, the unexcused absences, which may or may not be on the agenda. Two is the operational policies, and that's 4C, and then administrative code rules would come after that under the agenda. Thanks, Commissioner Kirshner.

So on page two of the document I had given to everybody, I made a proposal to address what happens if there's a tie vote, and I proposed to add a new administrative rule that says where the commissioners are acting under A13 of Section 3517.17, the revised code, and there are an even number of commissioners voting as a result of recusal on a tie vote. has twice occurred on the same issue, then the Secretary of State's decision shall be conclusive, subject to normal court review. And my recollection, Mr. Chairperson, was in response that Commissioner Brown had perhaps an alternative thought about maybe it should be instead not the Secretary of State's decision, but the report and recommendation made by the hearing officer. And I think at that point we then decided to table that at the last meeting. I apologize.

So, sorry. No, I don't believe it.

Yes, and I guess that just, that's my motion. I can tell the rationale if I get a second.

Again, could you read the motion into the record? I apologize. Yes. I propose to add a new administrative rule on page 4, below paragraph 10 that says where the commissioners are acting under A-1-3 of section 3517.17 of the revised code and there are an even number of commissioners voting as a result of recusal and a tie vote has twice occurred on the same issue. Then the Secretary of State's decision shall be conclusive subject to the normal court review. Mr. Chair, if I could, this is also a legislative recommendation.

We're not making a change.

That's my understanding.

Is that correct, Mr. McNair?

We can't change the administrative code. No, this is our policies.

Understood. Together we'll get it right. Yeah, that's right.

Second.

Does it change the OEIC operational policy?

Page four?

Paragraph 10.

Yes, where there's a recusal. and then so the question is when there's we get a report and recommendation and there are only four of us that can vote and that's a tie vote then what happens to that report and recommendation? So we'll have the report and recommendation on the one hand we'll have the Secretary of State's decision on the other and I think it was actually Councillor Katz who I talked to him about this added the twice, adding vote twice, which I thought was a good addition. And I propose the Secretary of State's decision shall be conclusive. And my reasoning for that is like in a court case, if something's at the Supreme Court and it's a 4-4 tie, it's the lower court decision is the law.

I'd just add, Mr. Chair, on the old commission, my belief was that in the case of a tie, it was called an administrative dismissal. I can remember having a case or two like that, and it just, it was done, and there were no charges held against the person if we couldn't come to an agreement in a tie.

But I'm just throwing that out for the history of it that we've had.

I'd be interested, Mr. Chair, if the Secretary of State had any comments or opposition to these.

I'm going to defer to our legal counsel.

Ms Riggins Since it is our operational policies I mean you can make amendments I mean, if you're asking for the position of the Secretary of State's office, that would be a question for leadership, and I would have to get back with you unless one of the leaders in the room would like to provide input.

Absolutely. Good morning. Brian Katz from the Secretary of State's office. I believe as one of the commission members pointed out, is currently the law as to how the commission operates, and it would not likely be appropriate for the commission to make operational policies that conflict with the law. Instead, the administrative code is there to help clarify at times where there is room for that type of decision-making. And so instead of a policy, perhaps at least an administrative code adjustment would help give that clarity to the law on how to address a situation where the commission were to tie.

Thank you.

That you should table it until further time, at which point you can make a decision.

I would too.

If I may.

This underscores the 180-day problem as well. If we're tabling the matter, we don't have a substitution situation developed yet through the legislature. I think if the legislature were to address these jointly, we would solve a lot of ambiguity that we are operating under in these circumstances. So I think it would be very beneficial for the legislature to provide some clarity on this, and then we don't have to debate what the outcome might be if we're in a tie situation. If we have a substitute member on a recusal, we'll still have five members. We won't have a tie. So that resolves that problem. If we could extend the 180 days, it allows us a little bit more flexibility to be able to table things if we need to table matters, come back for subsequent hearings. So those are issues I think are intertwined, but I strongly recommend that we have some clarity on those issues.

The recommendation for alternate members is well received Our team is working on it and we have optimism that that is something that can be accomplished later this year However as was addressed they not in session right now to do so but our team has heard that recommendation and is working towards making that a priority item in the lame duck period.

Question with respect to another matter that's related. We just went ahead and had conversation about the 180 days. Is that something that the Secretary of State's office is furthering?

We will do as instructed by the commission.

Once you've made your determination, our team will take that up and also seek to make that happen as well.

Just an observation. So if we were to have, let's say somebody recused themselves from a case, we had four, and we were at a stalemate, even if we tabled the matter, it still couldn't be resolved because you would only have four commission members, right? So I would hope that amongst the four of you, you would be able to come to a decision.

But you could envision a scenario then that if people maintain their positions, there would be no solution without an odd number of people voting.

Last thing, on the tie-break vote that Commissioner McNair pointed out, the resolution in that circumstance under the proposal, which would have to go to the legislature, would be that the Secretary of State's office would break that tie. Presuming the legislature were receptive,

I just didn't want that to get lost in the mix because that was the question that was originally posed. So our solution is agreeable to the Secretary of State so long as the legislature would be amenable to it, I would imagine.

Okay. So is it acceptable from your perspective if instead of referencing this as a policy, we make this as a recommendation for a change in the administrative code?

Okay.

Sure. Okay.

And who is a second on the motion?

You agree? All right. Yes, it's done.

Isn't that correct?

Oh, semantics. Okay, I got you.

I got you.

I guess I proposing to add to our administrative code the following where the commissioners are acting under A13 of section 3517 of the revised code and there are even number of commissioners voting as a result of recusal, and a tie vote has twice occurred on the same issue, then the Secretary of State's decision shall be conclusive, subject to normal court review.

Aye.

Well, you know, I had asked that actually my document, my six-page document, be part of today's agenda. And there was a bump in the road on that, I guess. but on pages two and three, I had proposed additional statutory changes.

Proposed changes. I just want to make sure that we should do this now as opposed to under other business. I don't want to... I think that just got dropped inadvertently. I just want to make sure we follow the right procedure, Chairperson. Do you want me to do it now or wait?

Well, again, I handed this all out at the last meeting, and my recollection is we tabled it to discuss. Then let's go ahead and keep it under old business and work on through it.

So the first is under, I proposed amending revised code 3517.17A1 to say that, to add a sentence that says, the Ohio Election Integrity Commission shall establish the terms of engagement. This is with respect to our appointment of hearing officers, which shall be comparable with those established by other state agencies for similar work and shall be paid from the Secretary of State's budget. Discussion on that?

I'm sorry.

All right, we have a motion.

Second.

Well, I'm trying to get us to be more in control of the appointment process of our hearing officers. You know, right now, it's all, I mean, we have this subcommittee where hopefully we're going to interview with the Secretary of State's staff prospective hearing officers. But, you know, they, we had no participation in the contract, which I think is frankly not a good contract. I think our people are, the hearing officers are underpaid. I think it's hard for us to get hearing officers. I found eight highly qualified people, and when they found out what the rate was, seven of them just walked. And, you know, $95, I thought the range was $95 to $130. Now, that was questioned, and I don't have any documentation. What is the range that the Secretary of State's office is prepared to pick? Because that's one question. I don't know if they're prepared to answer that today or not. But to me, $95 is way too low. I've asked for comparables which I haven't received from the Secretary of State's office. I've given them the comparables that I'm familiar with. Being a union-side labor lawyer, I deal with the State Employment Relations Board, and their rates are higher, number one. Number two, they not only pay for reimbursement of expenses like mileage, etc., they pay the hourly rate for travel time. and so this would allow us to kind of take control of that procedure and the contract provides that the Secretary of State is kind of the sole judge of the work done and it seems to me we ought to be the judge of the work done and there are other, I could go on, but there are other issues in the contract that I think it makes us hard to get people. We do have three people and they are good. I don't dispute that, but I think if we're doing the appointment, we should do it from beginning to end with this notion that, you know, they get paid what other state agencies get paid. That's the limitation on us. So I'm trying by this proposed amendment to have the Commission take more control of the hearing officers and their terms and conditions of employment.

Good morning. Good morning. Lisa Merriman, Deputy Chief Legal Counsel for the Secretary of State's office. I believe we have discussed this previously in terms of the comparable rates that other hearing officers that work for the state get paid. We have a hearing officer on contract to do notary cases. They get paid $95 an hour. We've checked with other state agencies. This is routinely similar to what other state agencies pay their administrative hearing officers. The Department of Administrative Services did put out a request for proposals to get kind of a pool of hearing officers across the state, and they really didn't receive enough responses. I believe their proposal was $100 an hour, which we can take that back to the office and discuss that. It's $5. But we were hoping that maybe there would be some changes, but because that sort of fell through, we're continuing on with the status quo. It's the same type of contract that we use for other paid hearing officers.

It's the Secretary of State's position that we sign the contract. I mean, we actually pay. So we are the body that pays the hearing officers. So it's our position that we are responsible for selecting the hearing officers.

Yes. Councilor Merriman, specifically what other agencies pay $95 an hour and don't provide for any reimbursement of expenses?

State Employment Relations Board, and it's a matter of public record. It's in the administrative code, and I'm not familiar with other state agencies.

If you're not willing to do that now, I guess I would ask that you provide to the commissioners what the terms and conditions are of other state agencies that you find, if you're willing to do that.

The thought into that is... Excuse me, but CERB does. The example I'm from, and I provided you with, I provided staff with that example, that they not only reimburse them for travel, they pay them on an hourly basis. So if somebody comes from Cleveland, they're getting paid up to $150 an hour. So that's $300 just to show up. CERB is paying that.

So one thing that strikes me as unique to our situation, and maybe you can address this when you refer to the other agencies, what's unique and who we appoint is that person is reviewing and either approving or disapproving or modifying the agency that signs the contract. and I'm concerned that if the Secretary of State, and I don't want to personalize this to the Secretary of State, but the person in the Secretary of State in that position thinks that that hearing officer is being too harsh, they can remove that hearing officer. And I don't know of any other situation situation where the person that's being reviewed can unilaterally, for any reason, remove the reviewer. And I'm very troubled structurally by the current arrangement, which my proposal would address I don know if you have any comment on that No if the Commission were to instruct us to change the contract or amend the contract so that type of situation was more equitable I sure we would be willing to consider that

and the response from the Secretary of State's office was not to, then there were two subsequent contracts. My understanding is those contracts did not get changed by even one word. So I think what you're saying is inconsistent with the conduct

Counsel, that's not being responsive to what I said. What I said was your current position here, that you would certainly consider changing that one provision, is inconsistent with respect to the Secretary of State having the unilateral authority to remove the reviewer. Your current position now is inconsistent with the position you've maintained on that issue up to this date. That was the only point I was just making.

Thank you very much. I appreciate it.

I'm sorry. Anybody else have questions?

Sure.

A couple questions I have. First and foremost, the hearing officers, they're all independent contractors, right?

Okay. And so as an independent contractor, there's no payroll withholding, and there's no control on the employment setting standpoint of an independent contractor like you would as a W-2 employee.

Okay. But in this particular situation, I believe I'm correct in saying this, that the hearing officers must be licensed attorneys in the state of Ohio, right?

The other commissions that have hearing officers, and I honestly do not know the answer to this, so I asking are they also required to be licensed attorneys in the state of Ohio I don know off the top of my head I would assume so yes since we all use the same contract I would assume they are but I don know I can find out for you

Because obviously hourly rate may change based on the qualifications of the candidate. Yes.

I think that what we do want to do is we don't want to lose highly qualified candidates because of compensation. I do think it's important to pay a fair compensation to get the highly qualified candidates. I don't know what that number is, and I'm not proposing a number. I honestly don't. I just know that from an independent contractor's standpoint, obviously $95 an hour is not a take-home pay. They've got to pay their own taxes. There's no withholdings. There's no benefits, et cetera, et cetera. It's a part-time job. It's not a full-time opportunity. It's not a full-time job.

But those folks are also extending an awful lot of time and commitment into these cases, and I think it's fair and reasonable to make sure that we compensate them accordingly. I think what is being proposed is the ultimate question,

Am I correct in understanding that?

Why?

Do you think it would be more efficient and beneficial to the Secretary of State's office if Commissioner McNair's proposals here to have the commission established in terms of engagement, do you think it would be more efficient, more harmful more of an obstacle? What are your views on that change?

Fair enough. That's all I have at the moment. Thank you. I just have a clarification on a question that Matthew had asked about state agencies.

Okay.

I truly did not know the hearing.

Trick question.

Anything else for Ms. Merriman? I want to just dig into the statute just a minute.

I don't want to put you on the spot. I just kind of want to understand your perspective. Is it the Secretary of State's office's position that it is statutorily required to appoint the hearing officer?

Correct. And that's... So we must at least acknowledge

Could it not be that the commission entered into the contract with the hearing officer, but the Secretary of State assured payment?

I think what is happening is that you are appointing the hearing officers to the particular matters.

Correct. And I could be missing something, but the statute I don't think requires the Secretary of State to engage in the contract with the hearing officer,

And so I think Mr. McNair's concern is the lack of control in that relationship, because we didn't select necessarily the hearing officers that were required to appoint. We have to appoint one that was selected by the Secretary of State.

Respectfully, Commissioner, we can take that back and look at that. I can't speak for the Secretary on that, whether or not we would be willing to do that, but we can take that back. If that is what the Commission decides, we can look at that.

And respectfully, I wasn't aware that we were going to discuss this, So I don't have the statute in front of me, but I'm happy to look at that and come back and talk to you about that. We are required to provide all the administrative and professional support to the commission.

Part of this dilemma was maybe created unintentionally by the legislature, but maybe it was intentional. It's not a criticism. It's just that there are several people on this commission that served under the Ohio Elections Commission, which had its own budget, had its own executive director, et cetera, et cetera, and this probably would not have been a question at that point in time. Now we have a situation where that's been eliminated, and as I understand the statute, the budget is controlled by the Secretary of State. We have no budget. So I think this is just one of those learning experiences that we're encountering as we move through the first year of our existence. I think it's great that you're here, that we've had the opportunity to kind of exchange ideas and give you some ideas of where we're coming from. Is that something, Ms. Merriman, that maybe you could give back to us at the next board meeting in November?

And with what the Secretary of State's position is?

Mr Chairman Yeah Mr Brown Mr Merriman first of all I very disappointed to understand that you have not memorized every stack that we could have thrown at you

35, 17, 14, 15, 171.

I appreciate the Secretary of State's partnership with the Commission in trying to make sure that we hire and retain the most qualified hearing officers. and as it's currently contemplated, we have a subcommittee with Commissioner McNair and myself to provide some of our comments and thoughts along the process of retaining new hearing officers and I appreciate the opportunity to have that dialogue so that we can join in that process. I'm curious based on something that Commissioner Kirschner has said, these contracts presumably are terminable at will. There's probably no guaranteed term of the contracts. I presume that's accurate.

Okay. The concern with regard to this possible conflict issue, would it be something that could be remedied if the termination of any contracts needed to be presented to the commission for our advice and consent type of a situation. Would that be something worth considering? I know you don't have an answer today. I'm not asking for an answer today, but perhaps that's something we could contemplate for next month.

And we don't have to reappoint somebody. I mean, for example, we have a hearing officer that's been selected. after a year, if we as a commissioner dissatisfied with it, we just don't simply appoint her or him to the next contract.

And if I could, Mr. Chair, even more than that, we wouldn't have to refer any matter to anything.

Even if it was midstream.

Any other questions for Ms. Maryland?

May I just say, Councilor Merriman, I have a different, I guess, structural concept of the situation. I don't see the Secretary of State's office as providing us with a pool of hearing officers from which we then can select, if I understood what you said previously. My concept is the Commission establishes the pool of hearing officers. We do that, and then from that pool, the chairperson selects who he's going to assign to a particular case. So I just want to know, I think you and I have a different structural view of the statute. Okay.

Thank you, Mr. Kenyon.

Mr. Chairperson, are you proposing that we table this to the next meeting?

I thought that's what you said.

Okay, I'll second that.

Okay.

Second.

All right, Mr. Lund.

That's it, Sandy. For that topic.

Well, at least I'm on, with the help of Kirshner's focus, I think I'm on to D, review administrative code rules.

which this is about the parties submitting a memorandum in support of the request. This is where we're talking about asking for advisory opinions, I believe. And then I propose to add, if the requesting party submits a memorandum, the Commission shall post a public notice on its website that such a request has been received and offer interested parties the opportunity to respond in support of or opposition to the request. Any response submitted pursuant to the public notice shall be filed with the Commission within seven calendar days of the posting of such notice 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 the advisory opinion. And I know this language materially tracks the old OEIC language. So I would...

Well, we don't have any of this in our current rule.

I think it's... So I make a motion to amend that administrative rule as I just read. Okay. Do we have a second?

Again, it's different in that none of that language is included. Correct. And it is in the old rule. I would be happy to hear from the folks who were on the old committee, but it does seem to me if we're dealing with, we're going to consider an advisory opinion, arguably that has some general public interest or the interest of somebody out in the public. And we should have a mechanism by which we can welcome additional comments but control our welcoming. That's what I think the old rule did. I thought that was a good rule. Now, maybe there's some reason the thought was not to include it We got the original drafts way back when we did our proposed administrative rules, but I liked it, so I'd like to add it.

I have a question. The comment about the posting notice on its website, Is there any concern from the Secretary of State's office about the ability to do that? Also, I'm going to defer to our leadership for that.

Mr. McNair. So my next proposed change relates to 111 colon 2 dash 6 dash 07, and this relates to the hearings before the hearing officer, and I'm proposed inserting a new provision before A and then renumbering the remaining sections. And that would read representation before the hearing officer and before the commission. That would be kind of the topic. Any party which is not representing itself shall be represented by an attorney at law licensed to practice law in Ohio. 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. And again, this materially tracks the old OEIC language rule 3517-1-02A1C. I would move that we make this addition. We have a second?

Well, it clarifies that if you're not representing yourself before the hearing officer, then the only other person that can do it is a lawyer licensed in Ohio, unless they get permission from us if it's a lawyer from another jurisdiction. So right now, if your crazy uncle comes in to represent you at the hearing, there's no way to prohibit that, in my view, because there's no limitation. It's consistent, I think, with what we see in the courts. Typically, you need a lawyer unless you're pro se.

Mr. McNair. Okay. And then there's my next proposal is with respect to 111 colon 2 dash 6 dash 07 A, where this is really the kind of the rules relating to the conduct of the hearing. and I've made proposed interlineations of that rule.

If you would, please.

So under B2 I read it and then when I get to my proposed addition I note that Prior to requesting a motion to compel discovery parties shall reasonably submit to the request of another party and produce the necessary documents, information, or other discovery items without the intervention of the commission staff or by use of any of the powers available to the commission. If such efforts fail and aggrieve party, may petition the hearing officer to compel the necessary discovery. And then I add, such petition must specify the efforts by each and every party to resolve the dispute prior to the filing of the petition. And then going back to the original language, which requests may be granted and then the proposed addition denied or modified at the discretion of the hearing officer. So maybe I should take these one at a time.

Okay, so I make a motion that we add those, what I just read. Is there a second?

And again, what does that do that we currently are not doing? It puts an affirmative obligation on the parties, as I think now occurs in federal court anyway, that you have to detail what the parties did to try and resolve it before going to the hearing officer. You have to do that in writing, so it puts pressure on the parties. to work harder, I think, and then to document what was done before engaging the hearing officer, the time and expense of the hearing officer. And then the second change, it's just a clarification. I mean, right now, in theory, I guess, it only says the petition can be granted, But obviously it could be, well, I say obviously, but then I just added denied or modified, which I think clarifies what, in fact, could occur. Okay.

Context is important. when we talk about adding or changing, what I think we're actually doing, just to clarify as a global comment, is recommending that the legislature implement these changes, knowing full well that they may not or they may have alternative revisions. But it would be our recommendation that the legislature make these changes as opposed to them actually being changed through our motion.

Yes.

Is that what you meant about the legislature? I thought we make the changes, it goes to J-car, and then J-car either approves them or disapproves them. That was my understanding, Mr. Chairperson, of where we are at this point of the agenda.

Melissa? I mean, I believe, please somebody correct me if I'm wrong. I believe when it goes to JCAR, it's based on our recommendation to them. I mean, it's not, the legislature's not voting on it, if that's the question. Correct me if I'm wrong. Hi, good morning. Heather Williams, Assistant Attorney General. The way that the JCAR process works is that the Secretary of State's office drafts or amends the rules, typically the five-year rule review and then that goes through the entire JCAR process which can be tracked on the Register of Ohio website and that when the Joint Commission on Administrative Rule Review goes through and determines whether or not the rules are in line with the authorizing statutes, are consistent with the authorizing statutes and approve them to move forward for final filing. So we would be recommending these to proceed through the JCAR process? For the administrative code updates, yes, that would go through to the Secretary of State's office for amendment modification, whatever term you want to use, of the administrative code that then would get submitted to JCAR. Then it opens it up for notice and comment to the public for if they had feedback, et cetera, and then it follows along through there.

Correct. It would be the first step in getting those ideas put forth for consideration and incorporation.

Yep, no problem.

Okay, then under this same rule, this is subsection 7, at the conclusion, I'll again read what's in it and then my addition, my proposed addition for colleagues' consideration. At the conclusion of the complainant's case, a respondent may move to dismiss some or all of the allegations for which respondent asserts that the complainant did not produce sufficient evidence. The hearing officer will consider such motion, and then I propose adding, after the complainant has been given an opportunity to respond, and then adding, and then going on. And to take action, and then I add, either immediately or after the close of the hearing, and then consistent with the evidence presented. So I make a motion to make those two additions. All right, sir.

Mr. Lyle? Yes.

Well, I think it clarifies how the rules should actually work, and then it gives the hearing officer discretion to either rule on the case right then or to do it at the close of the hearing, which is not, I think I would want to give the hearing officer that clear authority to do so, to kind of hold the, which often courts do. I think they'll hold a motion in advance until they hear everything and then move on that motion. Okay, sir.

Mr. McNair? Okay, then the next subsection 8, this gets a little confusing because now I'm proposing not only to add language but to delete language. So currently the language reads at the conclusion.

This is subsection 8.

These are all these.

Yes.

2607B8.

Right.

So it currently reads at the conclusion.

At the conclusion of the respondent's case, a complainant may request an opportunity to present rebuttal witnesses and evidence which presentation shall be at the reasonable discretion of the hearing officer. And I'm proposing to amend that to say at the conclusion of the party's initial presentations, the parties may request the opportunity to present rebuttal and surrebuttal witnesses and evidence which presentation shall be at the reasonable discretion of the hearing officer. So I I make the motion to make that change.

Second.

Well, I think it clarifies that it's, you know, the normal way it works is the parties present their initial cases, and then there's rebuttal by both sides, and in theory, sir, rebuttal, and you keep going until you're at the end. And this clarifies that that's what is to occur. I think the current rule is not clear at all on that issue.

Aye.

Okay. Now I'm on to set 111 colon 2-07D subsection 8. that reads, unless specifically excluded by the hearing officer, evidence is made part of the record. A party may proffer evidence excluded by the hearing officer at the time of its exclusion or at the conclusion of the hearing. And I'm proposing that we strike the alternative or at the conclusion of the hearing. So that's my motion.

Second.

because I think the proffer should be made at the time. And I think that's fair to the other side, to understand kind of why they're proposing that witness or evidence that's being excluded, so that they can consider that as the case moves on. And it removes potential element of surprise if it's done at the end of the hearing. It's a matter of fairness from my perspective having litigated cases.

Thank you.

Aye. Aye.

Okay. And then I'm proposing a new section relating to objections to the Hearing Office Report and recommendations to be inserted between the current D and E of the same 07 administrative code. So it's long. I'll just read it into record. You respond in May within 10 days, open parentheses as defined in RC 1.14, close parentheses, of service of the hearing officers Report and recommendation upon the respondent, file with the Commission and the Election Integrity Unit of Secretary of State's Office, written objections to the report and recommendation. The Election Integrity Unit may, within five days, as again defined by RC-114, of service of the respondent's objections, file with the respondent and the Commission, the unit's written response to the respondent's objections. The Commission shall consider all such objections and responses before approving, modifying, or disapproving the recommendation. The Commission Chairperson may grant extensions of time to either party within which to file such objections or responses. The Commission Chairperson may reduce the number of days for objections and responses where the matter is being considered on an expedited basis under RC 3517A5. That's my motion. We add that. Thank you.

Second.

Yeah, just the purpose is to try and lay out more clearly what the procedure is and what the timelines are and to give, because I don't think it's clear currently, to give the Secretary of State an opportunity to respond to what the respondent is objecting to.

Thank you, Mr. Katz. Go ahead, sir.

All right, further discussion?

Of course.

I do not believe at this time that we would be able to shrink that period less than 10 days, giving respondents fewer than 10 days as authorized by Chapter 119. and so the ability for this commission to determine that less than 10 days is an opportunity for them would not be by in accordance with the law, as well as adding to that time would also not help. For example, right now we were hoping to have a case on the docket for you today, but the respondent did not open their mail in time, and so we had to continue that case until next week to give them that full 10 days versus 9 days.

So that a new thought actually I hadn thought about that So I would like your understanding because the last part I say that the time could be reduced when we have to consider it on an expedited basis Is it your thought that we really could not do that because under 119 they have that statutory period?

And this would violate that statute?

That's a good thought. I hadn't thought about that. Okay, I guess I'm inclined to withdraw the change.

Thank you.

So this is, again, under the same section to be inserted after 07. It would be a new section that says entitled.

after section E.

Entitled Improper Conduct Before the Hearing Officer or the Commission. The new language we read, the Commission reserves the right to sanction any person or entity who or which engages in frivolous, contemptuous, or willful improper conduct relating to proceedings before a hearing officer or the Commission. Any monetary sanctions that remain unpaid after 30 days shall be referred to the prosecutor of Franklin County for collection. All proceeds collected shall be deposited into the Ohio Election Integrity Fund. So that's my proposal.

Yes, after E of the current right.

Second.

Mr. Katz. Thank you. Just the Secretary's Office would like to point out that the Attorney General's Office collects fines, and so would ask that you make that change at minimum. Oh, okay.

Okay, good. Thank you, Mr. Katz. Any other questions, Mr. Katz?

Does the Secretary of State's Office have any further position on this section?

Thank you. Thank you, sir. All right. So we have a motion?

It is a duly seconded.

Wait a second. I think.

Okay, I'm sorry. So we were, you're going to clean it up based on what Mr. Katz said?

Okay. So it's not the prosecutor.

And the remain, and he said it's not 30 days.

Right.

Thank you, Counselor Katz.

Further discussion on the motion? All in favor, aye.

Opposed, same sign. Motion carries. Go ahead, sir.

Is there a second?

All right, thank you, Mr. Lowe.

Questions, comments?

Go ahead.

Ms. Taylor. I think Ms. Taylor. Okay.

Yes, that's why I proposed the change.

No, no, that it should be the chairperson.

I would say, Mr. Chair, that if you change administrator to chair, you may not need the additional language. The lawyer can make a determination that it's either lack of property process or undue burden. It seems to me if you just make the change to the Chair Pershing determination he or she can then make the underlying decision

Much more, I would imagine.

Let's just change the administrator to the chair and be done with it.

I second that friendly amendment.

Aye.

Same, same.

Well, okay, so then the last, I guess this wasn't, yeah, okay. So I'm proposing with respect to paragraph five under commission policies, order of review of matters referred to the commission. currently states, if the person who was alleged to have committed the violation and or the person's legal counsel are present at the meeting, either in person or remotely, the chairperson may offer no more than 10 minutes to make a statement, not including any response or question by the commission. And I'm proposing to add the following.

Yes, I'm back at policies.

So this is paragraph five under...

Page, okay, thank you.

Got it, order of review, paragraph five. Okay, so I'm then proposing to add...

It's a little different. Add to that, subject to any extension of time granted by the commission, period, a representative from the Secretary of State's Election Integrity Unit or from the Attorney General's Office shall also be permitted to respond as determined by the commission. So I just wanted to add some flexibility. I'm sorry, did I make that as a motion?

Second.

My proposal is just, you know, it may be a complicated case, and we may want to give them more than 10 minutes. And we may also, because it's not clear, the only individuals that has the right is really the respondent, and I wanted to be clear that we could also hear from the Secretary of State's Election Integrity Unit and or from the Attorney General's Office, if they wanted to weigh in.

Yes, I'll read the whole thing and then my edition. If the person who is alleged to have committed the violation and or the person's legal counsel are present at the meeting, either in person or remotely, the chairperson may offer no more than 10 minutes to make a statement, not including any response to questions by the commission, comma, this is what I added, subject to any extension of time granted by the commission, period. A representative from the Secretary of State's Election Integrity Unit or from the Attorney General's Office shall also be permitted to respond as determined by the Commission.

No, I guess I just, I think 10 minutes is a good rebuttable presumption, but I think it should be rebuttable depending upon the particular facts and circumstances of the case. I mean, my sense so far is we have pretty simple cases and then we occasionally have a very complicated case. And so I agree with Commissioner Kirshner that 10 minutes generally should work and I wouldn't be particularly interested in extending it necessarily but a complicated case, I would be much more amenable to extending it and hearing what the other side has to say, especially because it's my understanding, again, we are really a unique body. We can hear new arguments, indeed even new evidence before us is my understanding, which is, you know, appellate bodies cannot, most appellate, judicial appellate bodies cannot do that. So I just think we need a little bit more flexibility in the joints.

Mr. Brown. Excuse me. I think that, yeah, I take Commissioner Kirshner's past experiences to heart. He's obviously seen this in action and seen how things could get bogged down. I note also that as the rule current or the provision, it's not a rule, but the provision currently establishes that the 10 minutes does exclude any questions and responses to questions that the commission may ask. So if someone is providing their statement and they have ten minutes to provide a statement and Commissioner McNair has a question along those lines, he has every right to ask that question and the respondent has every right to respond to that outside of that ten minutes. So I think there's enough of latitude in this as currently drafted that I don't know that we need to change that provision. I think it provides us with sufficient opportunity to flesh out the issues.

Because his language is subject to any extension of time granted by the commission, I would assume. We're talking about the chair there, or are you talking about anybody, Sandy? Well, I think as drafted, it would be the commission. What if we gave the discretion to the chair if the chair thought?

Yeah, it says no more than 10. What if the chairperson wanted to grant more time?

Okay. So how would it read that?

All right. Is there a second to that?

Thank you, Ms. Long. Discussion on the revision? Mr. Krishna, do you think?

Yes, that's a good question, yes.

Yeah.

Agreed. Okay. Anything else? All in favor of the motion?

That would be correct.

So can you read it now?

All right. Everyone understand the motion for the amendments? Mr. Gess.

Mr. Chair, if I could. Mr. Commissioner.

Mr. Chair, if I may add, so we could have somebody pro-sake, right, presenting? somebody who's not an attorney presenting their case to us. And they could be elderly. They may not know the law. They may speak slowly. So we're going to cut them off at 10 minutes. I mean, we've had people like that before us. They come before you. You witnessed it, right? These are not necessarily all attorneys. They have all attorneys in front of us. We've got to think about that. So if we get somebody up or somebody has a disability, we're just going to cut them off at 10 minutes. I think that I have enough faith in our chair that I think he would make that determination or she, whoever it would be in the future. That's my personal thing. I understand what you're saying. I don't disagree about expedited hearings. I'm with you, but I think we have to look at the pragmatics of it. And if there are people who are elderly or slow or just slow and presenting themselves, and they get nervous up there like happens all the time, and then you're just going to say, 10 minutes, you're done. I don't think that's, I think we have a duty to the citizens of Ohio and that we should afford them that opportunity to present their case fairly. And I just believe that the chairperson, if needs to extend or says, sir or man, I'll give you three more minutes, you've got to wrap it up. I'm comfortable with that. I have a problem with the hard and fast rule for those reasons.

I just respectfully disagree with that.

I hear you. Go ahead.

So is this another friendly amendment?

We have a second. No second. Motion dies for like a second. But we're still on the underlying issue. Yes, right. The amendment. May I come up? Sure, of course.

Thank you, Mr. Brown. Follow-up questions, comments? Mr. McNair, could you read the motion as it currently exists with all the amendments?

Okay. Any other questions or comments? All in favor of the motion, aye.

Opposed?

Nay. Motion's defeated. Next. Change? You know, we've been going on for a while. I'd like to table the last change, which is a proposed change about how we get matters on the agenda. It seems to me we're kind of working through that, maybe. Do you want to go ahead and make sure, do you want to do that yet today, or do you want to go ahead and make sure that gets placed on the November? Thank you.

Okay, so would you go ahead and tell us what it is you're moving the table?

Okay. We have a second?

Second. All right, now we have a motion to table that. Yes. Okay. Do we have a second?

The gentleman, second. All in favor of the motion to the table, aye?

Opposed, same sign? Motion carries. Is that it, Mr. McNair, for right now?

Okay. Your Honor. Let me, we want to take a break. We've been going at it for two hours solid. How long did you break this? Mr. McNair, Mr. McNair? Mr. McNair, Mr. McNair, Mr. McNair? We want to take a break. We've been going at it for two hours solid. How long any break do you want to take? Let me ask real quick before we do so. Are the next items items that will be addressed in executive session?

Okay.

Okay. Excuse me, deliberation.

Yes.

Sure. Fair enough. Want to take a 15-minute or 30-minute or longer?

No. No break?

I'm fine.

Ten minutes. All right. Let's go ahead and take a ten-minute break. We're in recess until 12.15. Thank you.