Butler County auditor’s office dispute now in high court’s hands

The Butler County prosecutor’s office maintains Reynolds vacated his post in December 2022 after a felony conviction and therefore has no right to reclaim it. Both sides have filed briefs and evidence to support there positions.

“If Mr. Reynolds cannot return to his seat after being fully and finally cleared of all charges, then the public’s right to elect its public officials can be trumped by any rival politician who can convince the state to bring bogus charges against, and obtain a wrongful conviction of, the electorate’s chosen candidate,” Reynolds’ attorney wrote. “If that’s true, being exonerated doesn’t matter, which is not what the law says nor how it should work. That is the kind of lawfare that has infected our national politics; it has no place in Ohio.”

Reynolds was indicted in February 2022 on five counts for bribery and leveraging his public office to further his own interests on charges related to trying to help his family develop land in Liberty and West Chester townships. A third felony was added that July for him allegedly asking Lakota Schools officials to use $750,000 of the unspent fees he routinely returned to taxing bodies each year for a golf academy at Four Bridges Golf Course, where his family lives. The jury in December 2022 found no fault on the development claims but guilty on the Lakota charge.

The high court erased the felony last month when it refused to disturb the appeals court decision that Reynolds was blameless. Reynolds couldn’t serve as auditor with a felony on his record and vacated the office after the guilty verdict, now that that’s gone he says he should be able to fill out the term — it runs until March 7, 2027 —he was elected to in November 2022 while he was under indictment.

The county auditor’s office can’t remain vacant so the county commissioners appointed Clerk of Courts Chief Deputy Joe Statzer as interim auditor shortly after the conviction and Nix was appointed by the GOP Central Committee in February 2023 by a vote of 127 to 45.

Both sides offered various legal theories to bolster their respective cases but the key argument centers on the office vacancy.

Reynolds cited state statute, which says an elected official who is found guilty of the felony cannot serve “unless the plea, verdict, or finding is reversed or annulled.”

“The General Assembly expressly provided for the possibility that a conviction would be overturned when it adopted R.C. 2961.01. What happens in the event of reversal? The disqualification is removed, with no need for any further act on the part of the wrongfully convicted officeholder,” his attorney wrote.

Butler County Prosecutor Mike Gmoser’s office is arguing on behalf of Nix and they say Reynolds is misconstruing state law.

“The statute is clear that if such “plea, verdict, or finding” of a felony conviction is reversed or annulled the individual would be competent to hold public office again at that time,” Chief Assistant Prosecutor Kevin Gerrity wrote. “The statute does not contain language restoring an individual to an office of honor, trust, or profit. Nowhere in R.C. 2961.01 is a person granted the right to re-assume an office previously vacated by that individual. No such legislative intent can even be inferred. To accept (Reynolds’) position this Court would have to add words to the statute.”

Reynolds says he never resigned and Nix was appointed by the Butler County GOP to “fill the temporarily-vacant” auditor’s position so he is free to reclaim the position that pays $115,188 this year. He never submitted a resignation letter but there was a text chain between Reynolds and retired Chief Deputy Prosecutor Dan Ferguson indicating he had vacated the office.

“Sorry Dan. My counsel advised not to speak to you. I picked a few more things up today and went to lunch with some staff. Name is off the doors, not sure why you’re getting every one so worked up. My counsel has communicated with Gmoser,” Reynolds wrote.

Gerrity wrote Reynolds forfeited his right to the office when he vacated it in December 2022. He cited another code section: “It makes clear that ‘Whenever any county auditor… fails to perform the duties of office for thirty consecutive days, except in case of sickness or injury as provided in division (B) and (C) of this section, the office shall be deemed vacant.’”

Additionally, other sections of state law say if an auditor-elect fails to give a bond and takes the oath of office “such office shall become vacant.” Reynolds’ felony was still intact when his new term started on March 13 and therefore he couldn’t take the oath.

Gerrity wrote the temporary vacancy theory doesn’t hold water.

“Respondent has searched for any case law in support of Relator’s arguments that his vacancy may be temporary and that he has a right to automatic reinstatement to office upon removal of his incompetency and has found none,” Gerrity wrote. “(Reynolds) offers no case law or other authority supporting his claims.”

Reynolds’ attorney filed the final brief in the case Thursday and he continued to hammer home the fact he was acquitted of all charges and thus his conviction was “annulled” essentially meaning it never happened.

“Mr. Reynolds’ wrongful conviction is the only reason that his office became ‘vacant.’ Ms. Nix, and Mr. Statzer before her, could claim to hold the office only as a result of that wrongful conviction,” his attorneys wrote. “The annulment of that conviction annuls the vacancy. All of that happened during Mr. Reynolds’ elected term. No other intervening event limits Mr. Reynolds’ ability to resume his service as auditor. And any right that Ms. Nix had to hold the office was annulled when the conviction was annulled.”

Reynolds’ conviction created a domino effect because when Nix was appointed auditor, she had to vacate her position as county treasurer. The GOP Central Committee appointed former Treasurer’s Office chief deputy Mike McNamara, to fill her spot in March 2023.

Gmoser’s office doesn’t get another opportunity to respond and it is unclear whether the justices will want to hold an oral argument in the case, however it should be decided by the Nov. 5 election. By law Nix had to run in the next county offices election following her appointment. Reynolds did not file as a write-in candidate.

If Reynolds prevails, Nix told the Journal-News she would never dream of trying to oust McNamara.

“Oh heavens no, I would never be so cruel,” Nix said. “It’s just wrong, I can’t imagine doing that to somebody, it’s not how I operate. I think that’s the height of cruelty.”