News
Nelsonville will be getting a new government next year, but it may start off small
By: David Forster
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ATHENS, Ohio (WOUB) — Nelsonville is supposed to begin next year with a new government, but it may not have much government to start with.
The deadline for partisan candidates to declare their candidacy was last week, but there’s still time for others to get in the race.
The scarcity of candidates raises the question of whether a city government could function, at least initially, with just one, or just a couple of, council members.
The short answer is that it appears so. What’s for certain is Nelsonville is in some uncharted territory as it changes governments.
Elections are being held for all city positions under a ballot initiative approved by voters in November. The initiative, known as Issue 23, abolishes the city charter at the end of this year and returns the city to the form of government it had before the charter was adopted 30 years ago.
Before the charter, the city had what’s known as a statutory form of government, which is the default in Ohio unless a city draws up its own government through a charter.
It appears that no other city in Ohio has transitioned from a charter government back to a statutory one.
Under the statutory government, power was shared between the City Council and an elected mayor who is independent of the council. The charter replaced the mayor with a city manager who answers to the council.
The City Council fought and lost a monthslong legal battle to keep Issue 23 off the ballot, arguing its supporters were following the wrong procedure to abolish the charter.
The council is still trying to prevent Issue 23 from being implemented. It voted to put on the May ballot an amendment to the city charter that would make similar changes to the city’s government as Issue 23 calls for, but would still preserve the charter. It would also repeal Issue 23.
Some council members say Issue 23 is unworkable because it didn’t provide enough direction on how to make the transition back to a statutory government.
The same Nelsonville resident who sued the city to get Issue 23 on the ballot is now suing to keep the proposed charter amendment off the ballot.
Greg Smith, who filed the lawsuits, said he expects more people will be running for office.
Write-in candidates for the May primary have until Feb. 24 to file their paperwork with the Athens County Board of Elections. The primary is for partisan candidates only and the winners will move on to the November general election.
Those wishing to run as independent candidates in the November election have until May 5 to file their paperwork.
Still, at most only three of the seven City Council seats can be filled. This is because four of the council members will represent wards and the current council voted down an ordinance that would have established temporary wards. The city attorney has advised council members they lack the power to establish wards under the charter.
Smith said even if only one council member is elected in November, that’s enough to get things started next Jan. 1, when the new government takes over.
That appears to be correct. Section 705.15 of the Ohio Revised Code says in part that “a majority of all members of the legislative authority of a municipal corporation constitutes a quorum.” Section 731.44 says in part that “a majority of all the members elected shall be a quorum.”
The Ohio Supreme Court said in an 1899 decision that when there is a vacancy on a council, the vacant seat should not be counted when determining a quorum. This part of the decision has been cited over the years in several decisions by Ohio appellate courts.
It also was cited in an opinion by the state attorney general, which said in part that “where a vacancy exists in the membership of council of a village, a quorum will consist of a majority of all the members elected and remaining qualified.” This arguably could be applied to city councils as well.
So if a seven-seat city council ends up with just one person elected to it, or two or three, it appears as long as a majority of those elected show up, that would constitute a quorum. And Section 731.43 of the code says the council can fill vacancies, and if the council doesn’t do it, the mayor can.
The code also provides for filling other vacancies in elected office, including mayor, president of council, auditor, treasurer and law director.
As of now, Councilmember Jonathan Flowers is running for mayor, former Councilmember Dan Sherman is running for council president, former City Council Clerk Andrea Thompson-Hashman is running for auditor and Jessica Hollenbaugh is running for one of the three at-large council seats.
No one is yet running for treasurer or law director.
One possible wrinkle in all of this is if the proposed charter amendment the City Council is seeking to place on the ballot survives Smith’s legal challenge and is passed by voters in May.
The amendment would set in motion its own process for choosing new council members and a mayor, all of whom would be elected in November.
It also would repeal Issue 23. It’s unclear what this would mean for the candidates in the May primary who if they win — and unopposed candidates will automatically win — would move on to the November general election.
Nelsonville City Attorney Jonathan Robe said this would once again place Nelsonville in uncharted legal territory, and it may be up to a court to decide.
For example, if the May primary winners are not placed on the November ballot because Issue 23 was repealed in the same election, and there is another slate of candidates running under the provisions of the charter amendment, the May winners might file a lawsuit arguing the results of an election cannot simply be ignored.
“Honestly I don’t know how to resolve that other than having court orders,” Robe said. “The judge might just say, ‘OK, Jonathan, I’m going to give you two weeks. You brief it, you do some research. … You tell me your best answer, and then I’ll decide and I’ll let the other side do the same thing.’ Maybe that’s what will wind up happening. But where we sit today, I do not know how to resolve that.”