The latest smackdown comes courtesy of the 12th District Court of Appeals, from our friends at the Brown County Press:
The Ohio 12th District Court of Appeals has struck down the efforts of Dennis Varnau to remove Brown County Sheriff Dwayne Wenninger from office.
In an opinion dated August 8, 2011, the court ruled that "Varnau has failed to present any evidence that would establish or create a genuine issue of material fact as to Wenninger's qualification to run for or hold the office of Sheriff...for the 2008 election."
The ruling continues, saying "Varnau has not demonstrated that Wenninger is presently holding and exercising the office of Brown County Sheriff unlawfully. Therefore, he is not entitled to a writ of Quo Warranto ousting Wenninger from office." While the ruling is a setback, the case is not over according to Varnau's attorney.
Thomas Eagle of Lebanon, Ohio, said "We're still looking at the ruling. We have some disagreements with it and we do plan to appeal to the State Supreme Court."
Varnau did not return phone calls seeking comment.
Regarding the ruling, Wenninger said "I was confident about the outcome. I knew that all the proper procedures had been followed and that I was qualified then and I'm qualified now to hold the office."
Regarding Varnau, Wenninger said "This man ran against me and lost. He tried to reverse the will of the voters and lost again. This man has been harassing me for years and it's just unfortunate that he put my family through that."
That is my point exactly. I have my issues with Sheriff Wenninger and the performance of law enforcement in Brown County, but the people resoundingly rejected Dennis Varnau. I could see pursuing this if it was even close, even after losing one or two appeals. But seriously, man, it might be time to move on. I am not a Wenninger servant or crony. I have only spoken to the man in passing during community functions. However, a clear majority of the people in Brown County elected him to office in 2008 and it is sad and pathetic that someone would try to subvert the will of the people for his own gain. I would even see the merits if Varnau had said, look, Wenninger isn't qualified. Let's throw the guy out and give it to whomever ran against Wenninger in the previous elections. However, he didnt' want to to do that. He wants the power. And that, to me, is just not kosher.
Wenninger also said that he was "sad that the case took too much time away from my job" and that he intends to run for another term in 2012.
He added that he was looking forward to serving the people of Brown County for another four years.
The case began when Varnau ran against Wenninger as an independent candidate for Sheriff in 2008.
Prior to the election, Varnau filed a protest with the Brown County Board of Elections, claiming that Wenninger was not eligible to hold the office.
Varnau contended that Wenninger did not meet the educational credentials to hold the office of sheriff when originally elected in 2001.
Varnau's argument continued that since Wenninger was not eligible in 2001, his service in office was not valid.
A four year break in law enforcement service invalidates an Ohio Peace Officer Certificate.
Therefore, Varnau contended, Wenninger was not eligible to serve after 2005 because his peace officer certificate was invalid.
The Brown County Board of Elections denied the protest because it was not filed by a member of the appropriate political party because Varnau ran as an independent.
Wenninger won the 2008 election with 62.92 percent of the vote.
Varnau filed a complaint with the Brown County Court of Common Pleas to compel the board of elections to accept his protest, but the court dismissed the complaint.
In February of 2009 Varnau filed a complaint for a writ of Quo Warranto, which was denied by the 12th District Court of Appeals in August of 2010.
Part of the 12th District's ruling was based on the decision of the Brown County Board of Elections.
Varnau appealed that ruling to the Ohio Supreme Court, which reversed the decision. The Ohio Supreme Court said that the appeals court must rule on the merits of the case rather than rely on the decision of the Brown County Board of Elections as a basis for their ruling.
The case was sent back to the 12th District for review.
A large part of the 12th district ruling is based on the principle that Varnau cannot claim to be entitled to a term of office that has already expired.
Varnau did not run against Wenninger in 2000 or 2004.
The ruling says "A person other than the attorney general or a prosecuting attorney can bring a Quo Warranto action, as a private citizen, only when that person is personally claiming title to a public office. Further, the individual must be claiming title to a current public office as a Quo Warranto action is rendered moot by the expiration of a term of office.
"Moot" is a legal term which means that something is not legally relevant.
The ruling continues that "Wenninger is currently holding a four year term of office as a result of winning the sheriff's race in the 2008 election. Accordingly, the court can only examine his qualifications and right to hold office pursuant to the 2008 election. Wenninger's qualifications, or alleged lack thereof, for the 2000 election and the 2004 election are moot as (those) terms as sheriff have long since expired."
So, Dennis, the will of the people will not be subverted by a sore loser. After appealing to the Ohio Supreme Court that the 12th district hear his case, the 12th district basically said, dude-you weren't even a candidate in 2001, and as you were not, you cannot challenge his qualifications back then. And, since he has been in office since 2001, your challenge that his qualifications had lapsed is moot!
The ruling can be found here.
Key points of the case in the opinion:
{¶35} Wenninger submitted a personal affidavit stating that he met all nine of the statutory requirements set forth in R.C. 311.01(B). Wenninger specifically states that he meets the requirements set forth in (B)(1) and (B)(2) as he is a U.S. citizen who has resided in Brown County, Ohio since 1971. He further states that he meets the requirements (B)(3) as he has all the qualifications of an elector as set forth in R.C. 3503.01, and he has complied with the applicable election laws. Wenninger attests that he received a high school diploma in 1986, and he has not been convicted of a felony or offense involving moral turpitude, has not been convicted or pleaded guilty to an offense that is a misdemeanor of the first degree, and has not been convicted or pleaded guilty of an offense that carries a penalty that is substantially equivalent to the penalty of a misdemeanor of the first degree, thereby complying with requirements set forth in (B)(4) and (B)(5). He further attests that he has been fingerprinted as required by (B)(6) and has filed all necessary documents with the administrative judge of Brown County, Ohio as required by (B)(7). Wenninger states that he meets the requirements of (B)(8)(b) as he has obtained or held within the three-year period ending immediately prior to the qualification date for the 2008 election a valid peace officer certificate of training issued by the Ohio Peace Officer Training Commission (OPOTC), and he has been employed as sheriff for Brown County on a full-time basis since January 2001. Finally, Wenninger attests that he has been acting and performing as Brown County sheriff since 2001, and therefore has complied with the supervisory experience requirement set forth in (B)(9)(a).
{¶36} Varnau only contends that Wenninger has not met the requirements set forth in R.C. 311.01(B)(8) and (9). With respect to R.C. 311.01(B)(9), Varnau alleges that as of 2000, Wenninger did not possess the necessary supervisory experience to be elected sheriff. In support of this argument, Varnau relies upon Wenninger's response to a request for admission wherein Wenninger admits that prior to January 7, 2000, he had not attained the rank of corporal or higher in any municipal police department or sheriff department. Varnau further contends that any supervisory experience Wenninger obtained after taking office as sheriff on January 1, 2001, cannot count towards the requirement set forth in R.C. 311.01(B)(9)(a), as such experience was illegally obtained because Wenninger was never lawfully qualified to hold the office.
{¶37} Varnau also argues that Wenninger has not met the post-secondary education requirements of R.C. 311.01(B)(9)(b), as Wenninger did not complete two years of schooling and did not obtain a degree from a college or university authorized to confer degrees by the Ohio Board of Regents.8 In support of this argument, Varnau relies on three pieces of evidence, namely Wenninger's October 23, 1987 diploma from TTI, Wenninger's deposition testimony wherein Wenninger states that he attended TTI from August 1986 to October 23, 1987, and TTI's certificate of registration for the period of August 22, 1986 through August 22, 1988, which was issued by the Ohio State Board of School and College Registration rather than the Ohio Board of Regents. Varnau contends because Wenninger was not qualified to hold the office of sheriff as of the 2000 election since he could not meet the requirements of R.C. 311.01(B)(9)(a) or (b), Wenninger illegally held the office of sheriff beginning in January 2001. Varnau further contends Wenninger failed to remove his disqualification immediately upon assuming office in 2001, and that this disqualification persisted to the 2008 election, thereby making Wenninger ineligible to run for and hold the office of sheriff.
{¶38} The specific language of R.C. 311.01(B)(9)(a) requires that a sheriff candidate's supervisory experience occur "in the five-year period ending immediately prior to the qualification date." As discussed above, any challenge to Wenninger's qualifications to run for or hold the office of sheriff for the 2000 and 2004 election terms has been rendered moot as those office terms have already expired. See Zumbar, 2011-Ohio-2939 at ¶14; Feneli, 100 Ohio App.3d at 464-465; Baxter, 168 Ohio St. at 559. The qualification date for the 2008 election was January 4, 2008. The relevant question for our analysis then becomes, within the time period of January 4, 2003, to January 4, 2008, did Wenninger have at least two years of supervisory experience as a peace officer at the rank of corporal or above or as an officer for the state highway patrol, pursuant to R.C. 5503.01, at the rank of sergeant or above. Wenninger's affidavit and the SF400adm Appointment/Termination form attached to the affidavit of Robert Fintal, the executive director of OPOTC,9 establish that Wenninger has held the rank of sheriff since January 1, 2001. Accordingly, at the time of the qualification date for the 2008 election, Wenninger had seven years of supervisory experience at the rank of sheriff, and five of those years occurred "in the five-year period ending immediately prior to the qualification date." R.C. 311.01(B)(9)(a). Varnau has failed to present evidence contradicting this requirement. Varnau's reliance on Wenninger's admission that he had not held the rank of corporal or above prior to January 7, 2000, is irrelevant in determining Wenninger's qualifications for sheriff for the 2008 election.{¶39} Furthermore, Varnau's argument that Wenninger's supervisory experience as sheriff cannot count towards the requirement set forth in R.C. 311.01(B)(9)(a) is without merit as Wenninger was lawfully holding the office. Wenninger was duly elected as sheriff in 2000 and 2004, and he lawfully took office pursuant to those elections. There were no successful protests or challenges to his candidacy or his right to hold office during either of these two prior terms. Varnau cannot now seek to challenge or void Wenninger's right to hold office for past terms which have already expired. Wenninger's status as elected sheriff of Brown County for the period of 2001 to 2008 remains, and his time in office can and does count as supervisory experience under R.C. 311.01(B)(9)(a).
{¶40} R.C. 311.01(B)(9) explicitly states that a candidate for sheriff need only meet one of the conditions set forth in that subsection. Because Wenninger obtained the necessary supervisory experience set forth in R.C. 311.01(B)(9)(a), the court need not discuss Wenninger's educational qualifications under R.C.311.01(B)(9)(b).
{¶41} Varnau also challenges Wenninger's ability to hold the office of sheriff under R.C. 311.01(B)(8), claiming that Wenninger's peace officer training certificate expired on January 1, 2005. Varnau contends that because Wenninger was not originally qualified to be sheriff in 2001, his appointment to the office was invalid. According to Varnau's argument this invalid appointment started a break in service on January 1, 2001, and four years later, on January 1, 2005, Wenninger's peace officer training certificate expired. 10 Without a valid peace officer certificate, Varnau contends Wenninger was ineligible to run for sheriff in the 2008 election. Wenninger, on the other hand, contends that he has always held a valid peace officer training certificate and that he has never had a break in service.
{¶42} R.C. 311.01(B)(8)(b) requires that within the three years immediately prior to an election qualification date, a candidate for sheriff must have obtained or held a valid peace officer training certificate issued by OPOTC and must have been employed as a full-time law enforcement officer performing duties related to the enforcement of statutes, ordinances and codes. Ohio Adm.Code Chapter 109:2-1 governs peace officer basic training programs and provides that individuals are awarded a peace officer certificate of training after they have completed a basic training course. See Ohio Adm.Code 109:2-1-07(A). A peace officer training certificate remains valid so long as it has "legal force." See State ex re. Hayburn v. Kiefer (1993), 68 Ohio St.3d 132, 133. Further, "[a]ny person who has been appointed as a peace officer and has been awarded a certificate of completion of basic training by the executive director and has been elected or appointed to the office of sheriff shall be considered a peace officer during the term of office for the purpose of maintaining a current and valid basic training certificate." (Emphasis added.) Ohio Adm.Code 109:2-1-12(E).
{¶43} In the present case, the evidence submitted by the parties demonstrates that from the period of January 4, 2005 to January 4, 2008, Wenninger held a valid peace officer training certificate issued by OPOTC and had been employed full-time as a law enforcement officer for the Brown County Sheriff's Office. In his affidavit, Wenninger attests that he held a valid peace officer certificate of training issued by OPOTC within the three-year period ending immediately prior to the qualification date of the 2008 election. Further, OPOTC documents establish that Wenninger had been employed since he received his OPOTC peace officer training certificate on May 24, 1989. Wenninger was first employed with the Brown County Sheriff's Office, and then with the Ripley Police Department before he returned to the Brown County Sheriff's Office in 2001.11 Wenninger further attests that he has been employed as the Brown County sheriff on a full-time basis since taking office in January 2001. Because Wenninger's employment as sheriff has been continuous since January 2001, pursuant to Ohio Adm.Code 109:2-1-12(E), he has maintained a current and valid peace officer training certificate. Accordingly, there is no credible material fact disputing that Wenninger was qualified to run for and hold office pursuant to the 2008 election as he met the requirements set forth in R.C. 311.01(B)(8)(b).
{¶44} Varnau has failed to present factual evidence that demonstrates that Wenninger had a break in service that encompassed more than four years or that he otherwise had an invalid or expired peace officer certificate of training. Varnau's argument that Wenninger started a break in service on January 1, 2001, because he failed to meet the qualifications set forth in R.C. 311.01(B) is without merit. Varnau cannot seek to invalidate Wenninger's present term of office based on an alleged prior disqualification from an expired term of office. The focus must remain on Wenninger's eligibility to run for and hold the office of sheriff for the present term, not for previous terms that have already expired. "`His office' means his present office under his present commission, and not an old expired term in the same office under a former election or appointment. Varnau has failed to present any evidence that would establish or create a genuine issue of material fact as to Wenninger's qualification to run for or hold the office of sheriff pursuant to R.C. 311.01 for the 2008 election. Varnau has not demonstrated that Wenninger is presently holding and exercising the office of Brown County sheriff unlawfully. Accordingly, he is not entitled to a writ of quo warranto ousting Wenninger from office. The court, therefore, does not need to determine Varnau's alleged entitlement to the office. Varnau's motion for summary judgment is hereby denied.
{¶46} Conversely, Wenninger has demonstrated that there are no genuine issues of material fact that would preclude the court from entering judgment in his favor as to his motion for summary judgment. The evidentiary material presented establishes that as a matter of law, Wenninger is lawfully holding and exercising the office of Brown County sheriff. Wenninger's motion for summary judgment is therefore granted.
Again, Dennis, you failed.
The sad part is that Dennis just doesn't get it. He wants to go on harassing Wenninger and his family. He wants to waste more of the Sheriff's time refuting these baseless claims. Dennis: the people soundly rejected you. The Election board rejected you. The 12th district court of appeals rejected you--twice. Get over it. Move on and get a life. Even this guy sez so:
I wanted to run down a few things happening in Brown County as well...
