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A dispute over a Nelsonville ballot initiative raises questions about how citizens can change their government
By: David Forster
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NELSONVILLE, Ohio (WOUB) — The dispute over a proposed ballot initiative that would abolish the Nelsonville city charter raises questions about how Ohioans can exercise their constitutional right to choose their own government.
The initiative would do this by abolishing the city charter adopted in 1994, which established the current government structure in Nelsonville. The group behind the initiative says the charter gives residents the right to abolish it.
The City Council disagrees, and it refused to take action to put the initiative on the November ballot.
Under the charter, day-to-day management of the city is handled by the city manager, who is hired by the council and can be fired by the council. Before the charter was adopted, the city was run by an elected mayor who was independent of the council.
The council argues the right to abolish the charter comes from the Ohio Constitution, not the charter itself.
Whether the initiative is done under the city charter or the state constitution matters because the constitution requires more signatures to get the initiative on the ballot — more signatures than the group behind the initiative got.
However, the group got more than enough signatures to meet the requirements for initiatives done under the charter. And the charter says if an initiative meets all other requirements and gets enough signatures, the council must pass an ordinance directing the county elections board to put it on the ballot.
The council didn’t do that, and one of the residents behind the initiative took the City Council to court, joined by another resident who signed the petition to put the initiative on the ballot.
They asked the judge to order the council to pass the ordinance. And they wanted him to do it right away, rather than let the case work its way through the usual process with a decision at the end, so the council would have time to act before the deadline for getting initiatives placed on the November ballot.
The judge granted the request. The City Council asked the judge to stay his order, a request he was required to grant. The two residents appealed.
On appeal, the council is pressing its argument that the city charter does not permit initiatives to abolish the charter.
They cite language in the charter that says initiatives can be used to put ordinances or resolutions on the ballot. But the charter doesn’t say anything about using an initiative to abolish the charter itself. And this, the council argues, means it was not intended to be used for this purpose.
The Athens County Board of Elections is also part of the case and raises similar arguments, saying it wouldn’t make sense to allow residents to abolish the charter while also requiring the City Council to pass an ordinance to put the proposal on the ballot.
“This is because it would be incongruous for the city government founded by the charter to certify its own dissolution,” the board argues in a document filed last week with the appellate court.
The elections board and the council both argue that if residents want to dissolve the charter they need to do it through Article 18, Section 9 of the Ohio Constitution.
But this section raises a similar issue. It says: “Amendments to any charter framed and adopted as herein provided may be submitted to the electors of a municipality by a two-thirds vote of the legislative authority thereof, and, upon petitions signed by ten per centum of the electors of the municipality setting forth any such proposed amendment, shall be submitted by such legislative authority.”
This appears to require a two-thirds vote by the City Council — the legislative authority for the city — in order to place an amendment on the ballot.
And this seems to run afoul of the argument the elections board and the council are making against using the charter, because it puts the city government in the position of certifying its own dissolution. It also would seem to undermine the purpose of an initiative, which is to give citizens a way to take matters into their own hands if they feel their government leaders are not being responsive.
Nelsonville City Attorney Jonathan Robe acknowledged the language in the constitution could be read this way. But his argument is for another interpretation that hinges on the words “may” and “and.”
Robe argues the word “may” means a city council has the option to submit an amendment by two-thirds majority. But there’s another option, he argues. He said the word “and” should instead be read as “or,” meaning an amendment also can be placed before voters with a petition with the required number of signatures.
“So, had the initiative in this case gotten the number of signatures required under Section 9, and provided there were no other issues, it would be going on the ballot — or at least the City Council would be powerless to stop it,” he said.
Dan Klos, the attorney representing the residents who brought the legal action, argues Section 9 is for amending city charters. It doesn’t say anything about abolishing them.
And even if it could be used for this purpose, he said, it’s common practice when interpreting laws to be guided by the plain meaning of the words used. So in the case of Section 9, when the authors used the word “and,” they meant “and,” not “or.”
Courts, of course, can interpret the language differently, he said, but he’s not aware of any court decisions that have done so regarding Section 9. Robe said he hasn’t either, but that doesn’t mean he cannot try to persuade the court of appeals in this case to accept his interpretation of the language.
Klos also argues that while the city charter does not expressly say its initiative process can be used to abolish the charter, it also doesn’t limit what initiatives can be used for. The charter does specifically say initiatives can be used to place ordinances and resolutions on the ballot, but Klos argues that doesn’t mean this is all they can be used for.
Klos also questions why city leaders are trying so hard to keep this initiative off the ballot.
“Why is there such a vehement opposition to allowing citizens to choose what type of government they have?” he asked.
Why not just put the issue before Nelsonville residents on the ballot, Klos said, and let them exercise their constitutional right to decide whether they want to keep the charter or go with a different form of government.
Robe argues the problem with this is if the initiative goes on the ballot and passes, and it’s later determined by a court the city charter did not allow for this, someone who voted against the initiative could raise a legal challenge, which could call into question what form of government the city has.