Just got the press release. Former Speaker/current House Minority Leader Armond Budish (D-Beachwood) wrote Governor Kasich regarding questions about Ohio Department of Development Director Mark Kvamme’s eligibility to serve in a Cabinet post under the Ohio Constitution:
While Mr. Kvamme brings unique experiences to the state, I am concerned that his status as a resident of California jeopardizes his appointment as the Director of the Department of Development, chairperson of the Third Frontier Commission, and the head of JobsOhio. I believe based on a review of materials excerpted below and enclosed with this letter that this issue could impede our mutual desire to create jobs and improve our economy.
Leader Budish points out that Ohio Department of Development Director Mark Kvamme is a resident of California, not Ohio, and does not intend to become a resident of Ohio (Fortune Magazine January 7, 2011).
Article XV, Section 4 of the Ohio Constitution states that no one may be appointed to any public office in Ohio unless the person has the qualifications of an elector. The Ohio Revised Code, ORC 3503.01(A), states that residency must be established for 30 days before being eligible to vote.
A 1992 Ohio Attorney General’s opinion based on previous case law finds that a Governor cannot appoint someone who is not eligible to hold the office. “If a person is constitutionally ineligible to serve as an officer, the appointment to that office is also a nullity,” said the opinion citing multiple court decisions. Another research document from the Legislative Service Commission also supports this decision.
“It’s the task of the Third Frontier Commission and the Department of Development to create, retain and attract jobs to Ohio. We’ve heard repeatedly from your administration how time is critical — government must act at the ‘speed of business.’ Yet, right now investments made by the Third Frontier Commission and the Department of Development under the direction of a person whose appointment may violate the Constitution are vulnerable to court challenge,” said Leader Budish in his letter to the Governor. “It’s my understanding that your attorneys are aware of this problem as they decided to cancel the meeting of the Third Frontier Commission yesterday. The longer this cloud of uncertainty hangs over the Third Frontier Commission, the Department of Development, and JobsOhio, the longer job creation will be stalled in Ohio.”
In other news, the non-partisan Legislative Service Commission (Budish’s letter is the first we’ve seen this document) apparently issued a memo that confirms that Kvamme cannot serve in the Cabinet if he is not an Ohio elector (which he isn’t.)