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The fate of an initiative to change Nelsonville’s government is unclear following an appeal of judge’s order
By: David Forster
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ATHENS, Ohio (WOUB) — The fate of an effort to change the form of government in Nelsonville again rests with a state appeals court.
On Friday, an Athens County judge ordered the Nelsonville City Council to put an initiative on the ballot that would return the city’s government back to having an elected mayor.
The judge gave the city until Monday afternoon to comply. But the city appealed, which put a hold on the judge’s order.
Late Monday afternoon, the attorney representing one of the Nelsonville residents who sponsored the initiative asked the appellate court to suspend this hold and order the city to follow the judge’s order before evaluating arguments on the appeal itself and making a decision, which could take weeks or months.
The attorney, Dan Klos, argued in his motion that the city’s residents have a constitutional right to choose their own form of government. This right, he argued, outweighs the possibility the city might win its appeal. If the initiative passes but the city later wins, he argued, the court could simply void the election results.
The ballot for the November election must be printed by Tuesday, and it’s unclear whether the appeals court will make any decisions so quickly.
The central dispute in the case is whether the proposed initiative was done properly.
The residents behind the initiative want to abolish the city’s charter, under which the city is run by a city manager who is hired, and can be fired, by the City Council.
The initiative would return the city to the form of government it had before the charter was adopted in 1994, when the city was run by a mayor who was independent of the council.
The initiative was proposed under a section of the charter that allows residents to submit initiatives for the ballot. Under that section, if the initiative gets enough signatures, the council is required to pass an ordinance directing the Athens County Board of Elections to put it on the ballot.
The council refused. It argues the initiative process under the city charter cannot be used to abolish the charter itself.
The council argues that the initiative must instead be done under a section of the Ohio Constitution that specifies how to amend city charters. That section doesn’t mention abolishing a charter either, but the city argues this is the right approach.
In his decision Friday — the second time he has ordered the city to act — Athens County Judge George McCarthy drew from the city charter and the Constitution. He said the residents behind the initiative had a right to proceed under the charter. But he said the number of signatures required for the initiative was determined by the Constitution. He said it appeared the initiative had enough signatures.
Nelsonville City Attorney Jonathan Robe said Monday afternoon the city had not yet submitted its legal arguments to the court of appeals. But he said the city will continue to argue the charter does not provide for its own dissolution.
It also will argue the initiative should not be allowed to proceed under the Constitution because this is not what the residents who took the city to court asked for, Robe said. Plaintiffs in a legal case generally are not entitled to relief they did not seek, he said. And in this case, he said, the residents specifically argued the state Constitution was not the proper authority for dissolving a city charter.
[Editor’s note: This story was updated Monday night to include information about a motion filed late Monday afternoon with the appellate court.]