Position Paper of Tom Richey and Dennis Lieberman,

Montgomery County Board of Election Members

Re: 2-2 Tie On The Question of Senator Husted’s Residency

I. BACKGROUND

The Dayton Daily News ran an article before the November 2008 Election questioning

the residency of then Speaker, John Husted. The question at issue was then Speaker Husted and

his wife claiming tax exemptions in both Franklin County, Ohio and Montgomery County,

Ohio when only one would be appropriate.

Subsequent to the Dayton Daily News article there were complaints filed asking for the

investigation of then Speaker Husted’s residency by Progress Ohio, a 501(C)(3) organization

and by a registered Republican residing in Speaker Husted’s legislative district. Both of the

filings however, were too late to be considered for the November election.

Therefore, the Montgomery County Board of Elections agreed to consider the residency

of Speaker Husted for purposes of voter registration prior to the next election. The investigation

itself, how it was going to be conducted and documents to be produced were the subjects of

much discussion. Member Lieberman had requested a list of eighteen documents from then

Speaker Husted. This request was not agreed upon by the two Republican members of the

Board of Elections. A compromise could not be reached and documents were NOT produced

by Speaker Husted.

There was an agreement that now Senator Husted would appear before the Board of

Elections for purposes of his testimony relating to his residency, without subpoena. Senator

Husted appeared before the Board of Elections on January 7, 2009 at 11:00 a.m. Senator
Husted first made a statement and then was questioned by member Lieberman regarding his

residency.

II. FACTS

Senator Husted began by making a statement to the Board of Elections claiming that his

residence at 148 Sherbrooke Drive in Kettering, Ohio is the “only home I own.” “It is the place

where I pay my taxes, receive my mail and where I voted for 14 years.” Senator Husted then

stated that he is in Columbus, Ohio often “Being speaker is a 7 day a week job and included

oversight of over 200 employees, 20 committees,…” Senator Husted then explained that after

he fell asleep at the wheel one evening on his way back to Kettering he decided to spend nights

in Columbus. “This was less than an ideal solution in the short term, so I soon found an

apartment for rent and another short term solution. Over time, I had rented, owned, or stayed

with family, in at least six different places while carrying out my duties.” Senator Husted took

the position that “Columbus is not my home. I have never abandoned my residency in Kettering

and when my public service is completed, I intend to return home full time to Kettering.”

However, upon further questioning, Senator Husted stated the following. “Does my

family reside in Columbus? I would say for the most part that is accurate.” After further

questioning about whether his family stays in Kettering he stated that they were in Kettering

“last weekend. Okay. Did they stay the night or the day? Last weekend…I don’t think we

stayed last weekend.” Senator Husted further stated, “My son is thirteen and his mother lives in

Upper Arlington. He has attended school there since he was in Kindergarten.”

Senator Husted’s second marriage occurred approximately three years ago. “She lived

in Columbus.” “And we have maintained…She’s maintained a house there. She is in the real
estate business. We have also remodeled the house in Kettering, a project that she was

responsible for and led. We did all of that just 2 years ago.” When asked how many houses he

owns, Senator Husted’s response was “I don’t own any.” His wife “owns one house” which is

different from earlier testimony when Senator Husted stated the Kettering house is the only

house he has ever owned.

When asked about his DP&L bills, Senator Husted said the following:

DL: “Can you tell me what your average DP&L bill would be for the past year at the

Kettering residence?”

JH: “I can’t. I don’t know off hand.”

DL: “Would you estimate that it was less than $100.00? Was it more than $100.00?

Was it more than $200.00?”

JH: “I don’t know. I really don’t.”

At one time, Senator Husted claimed that the Kettering residence was in his name,

however, when confronted with an affidavit from a neighbor of his who indicated that Mr.

Husted’s Kettering house deed was in a Trust his response was:

“The only thing of it…again, when I got married, we did a will to avoid…As

you get advised to make sure that there are no problems with the Probate of the

distribution if something were to happen to your property, then you put it in a

Trust that then you can give to your children in the family, and likewise my wife

did the same thing with her assets. I believe that’s what they would be talking

about.”

Senator Husted did not know the details of his Trust. To try to clarify whether his Kettering

property is in a Trust the following question was asked: “To the best of your knowledge, it’s in
a Trust?” Senator Husted: “If we didn’t have such a high estate tax in this State you wouldn’t

have those kinds of problems.” Senator Husted was asked to provide a copy of the Trust and

his response was “I don’t know what the…I would have to check. I don’t know exactly what it

is, or what the purpose is. I don’t like to give my personal financial records out to people…”

Again when asked to provide it to us his response was “I would certainly entertain that request

and do my best to fulfill it.” However, he never did fulfill the request.

When asked how often he was at the Kettering residence, Senator Husted’s response

was “…I’m there weekly.”

DL: “OK. Can you average it for me? Is it more than once a week?”

JH: “It really just depends on what the schedule is and what the demands on my

time are. That is the best that I can do for you.”

Senator Husted claims that he pays Kettering Municipal income taxes and that his

income tax bills are sent to the Kettering residence. Senator Husted wasn’t sure where his

P.E.R.S. statements are sent. Senator Husted’s paycheck goes to his wife’s account in

Columbus, although Senator Husted claims that he has an account at Day Air Credit Union in

Dayton. Senator Husted claims not to have any banks in Columbus and when asked the

question “Do you have any banks in Columbus?” Senator Husted’s answer was “I don’t, no.”

Senator Husted’s paycheck is deposited in his joint banking account in Columbus, but he

claims not to write any checks out of it.

The above was the essence of Senator Husted’s testimony to the Board of Elections.

Although Mr. Lieberman requested a number of documents, including utilities, water,

telephone, local tax returns, P.E.R.S. statements, bank accounts, the trust account which would
include his Kettering property, none of the above were produced and the two Republican Board

members refused to require them to be produced.

A public records request was sent to the Montgomery County Water Dept., by member

Tom Richey. In response a number of records were received for a three year time period.

These records establish two matters. One, that Senator Husted’s water usage was so low as to

suggest no one was living in the Kettering residence. Two, that when water bills would be paid

in this three year period of time they were paid by the joint checking account in Columbus,

Ohio.

III. THE LAW

The controlling legislation to determine the residency of a person for purposes of voting

is Ohio Revised Code §3503.02. Subsection (A) of O.R.C. §3503.02 states that “a place shall

be considered a residence of a person in which the person’s habitation is fixed and to which,

whenever the person is absent, the person has the intention of returning.” In trying to determine

a person’s fixed habitation subsection (D) of O.R.C. §3503.02 states “The place where the

family of a married person resides, shall be considered to be the person’s place of residence…”

Subsection (G) of O.R.C. §3503.02 further states “If a person removes from this State

to engage in the services of the United States Government, the person shall not be considered

to have lost the person’s residence in this State during the period of such service,…” Senator

Husted felt that subsection (G) was applicable to him. His Attorney filed a Brief maintaining

that it was applicable to him. However, it was the opinion of the Montgomery County

Prosecutor’s office which represents the Board of Elections that subsection (G) is not
applicable to Senator Husted and it is also the opinion of the author of this Memorandum that it

is not applicable as it only applies to federal employees and individuals in Congress.

The Ohio Supreme Court in State ex rel. Spangler v. Cuyahoga County Board of

Elections (1983), 7 Ohio St.3d 20, held that if a candidate was married and his family resided

in Fairview Park, the candidate was not eligible to run for elections in Brooke Park. The

Spangler Court relied exclusively on Ohio Revised Code §3503.02(D). The Spangler decision

is a mandatory application of Ohio Revised Code §3503.02(D). If the Board of Elections were

to follow the Ohio Supreme Court’s ruling in Spangler, then it would have to find that Senator

Husted’s family lives in Columbus and not in Montgomery County and therefore his proper

voter registration is in Franklin County and not Montgomery County.

In Bell v. Marinko, 367 F.3d 588 (2004) the Sixth Circuit Court of Appeals reviewed

Ohio Revised Code §3503.02(D) and held that it cannot be treated as an irrebuttable

presumption. The Bell case held that §3503.02(D) is a rebuttable presumption. If the Board

follows the mandates of the Bell case, then the evidence of Senator Husted’s family living in

Columbus establishes a rebuttable presumption that Senator Husted is incorrectly registered

and should register in Franklin County. However, that presumption may be rebutted by

evidence sufficient in nature to demonstrate that his residency is actually in Montgomery

County, Ohio.

Member Richey and Member Lieberman followed the Bell decision and found that

there was a rebuttable presumption that Senator Husted resides in Franklin County, Ohio and

not at the Kettering, Ohio residence. Members Richey and Lieberman further found that there

was insufficient evidence presented for them to make a finding that Senator Husted rebutted the

above presumption and properly resides in Kettering, Ohio. All that Senator Husted presented
was a self-serving statement and somewhat vague answers to questions. When asked to present

documentation to support his sworn statement, Senator Husted failed to present any documents

to corroborate his statements before the Board of Elections. When members Richey and

Lieberman asked members Gant and Nathanson to request our attorney to issue a subpoena for

records, members Gant and Nathanson refused.

It is impossible to make a determination as to the proper residency of Senator Husted if

the Board of Elections is forced to rely solely on the testimony of Senator Husted. His

testimony alone was insufficient to overcome the legal presumption that his residency is in

Columbus, Ohio.

Senator Husted has received the respect and deference of this board in investigating the

complaints which have been lodged against him. However, Senator Husted is not above the

law, nor should he be treated any differently than any other citizen of this State when reviewing

a complaint about their residency. Members Lieberman and Richey voted against the Motion to

find that Senator Husted is properly registered in Montgomery County, Ohio for purposes of

residency because there was insufficient evidence to rebut the uncontested fact established by

Senator Husted’s admission that his family resides in Franklin County, Ohio. Therefore, until

sufficient evidence is presented in the form of documentation to corroborate Senator Husted’s

statements at the board of Elections members Lieberman and Richey cannot vote for a motion

which finds that Senator Husted is properly registered in Montgomery County, Ohio.

Respectfully Submitted,

Dennis A. Lieberman,
Member, Montgomery County Board of Elections