ATHENS, Ohio (WOUB) - The Nelsonville City Council's effort to remove candidates from the November ballot could result in the city having almost no government at the start of next year.
Earlier this month, Nelsonville City Council voted 5-1 to repeal Issue 23, a citizen-led ballot initiative that would have established a new type of government.
When the council repealed the initiative, several council members pointed to concerns about the city having no government in December before the city transitioned to the new form of government in January.
But by repealing Issue 23 and bringing a case involving candidates on the ballot before the Supreme Court to reinforce their decision, they may have created an even bigger problem.
"They've transmogrified a one-month problem into a four-year problem," said Nelsonville City Law Director Jonathan Robe.
Last November, voters passed Issue 23 to return Nelsonville to a statutory form of government it had 31 years ago. The initiative abolished the city's charter and established a mayor-council government with an independently elected mayor active as chief executive and a partisan city council.
Under the charter, all council members' terms end Nov. 30, leaving a one-month gap where the city will not have a government until new council members elected under Issue 23 take office Jan. 1. This gap became known as the "December problem."
The December problem led five council members to vote in favor of repealing Issue 23 earlier this month, saying they had the authority to do so under the charter. The council then asked the Ohio Supreme Court to remove all candidates running under Issue 23 from the November ballot.
On Wednesday the Ohio Supreme Court reopened the city's case after initially dismissing it because of a filing issue.
Because of the court's involvement, the Athens County Board of Elections allowed candidates to run as write-ins under both the charter and Issue 23.
Councilmember Nic Joseph Saul and Treasurer McCray Powell are running as write-in candidates for full-term council member at large positions under the charter. These terms would start Dec. 1 and last four years.
The problem? Both Saul and Powell were already running for full-term council member at large positions under Issue 23 that would start Jan. 1.
According to the Ohio Candidate Requirement Guide, candidates cannot run for multiple offices at the same time. Powell and Saul's bids for council positions under Issue 23 were certified by the Athens County Board of Elections in July.
Director Tony Brooks said the board is waiting for the court to decide whether to remove the candidates from the ballot.
"The board decided that they were going to be as proactive as possible and allow as many people to file that wanted to file at that point in time and that they would make a decision on what candidates can and would go on the ballot once we received more information," Brooks said.
If the court sides with the city and removes Issue 23 candidates from the ballot, Saul and Powell would still be elected to serve full-length terms under the charter instead of Issue 23.
Meanwhile, current council members Cameron Peck and Cory Taylor are both running for a one-month council term from Dec. 1 to Dec. 31. This one-month term was originally intended as a solution to the December problem under Issue 23.
Because the deadline for write-in candidates to file has passed, no one else can run for any position in Nelsonville city government. If elected, Peck, Powell, Saul and Taylor would meet the quorum to conduct the city's business but would still need to appoint three other people to completely fill the council. Whoever they appoint would serve through December until the next municipal election in 2027, per Section 4.03 of the Nelsonville City Charter.
Once Peck and Taylor's one-month term is up, only Powell, Saul and the people they appointed would be serving on the council. They would need to appoint two more people to fill the remaining empty seats in January.
However, Robe believes there may be a section in the Ohio Revised Code the city could use to avoid Powell and Saul having to appoint more people.
ORC Section 3.01 says a person in a public office can remain in their position until their successor is appointed or elected, and ORC Section 3.02 applies this precedent to those appointed to fill vacant seats in public offices. Council members Peck, Saul, Opha Lawson and Wesley Henderson are all currently filling vacant seats.
Using these two sections, Taylor and Peck theoretically could remain on council after their December term ends along with the people they appointed to fill the empty seats on the council until the next municipal election, meaning more than half of City Council would be made up of unelected officials for more than a year.
However, Robe said this would be a slippery slope for the city.
When they voted to repeal Issue 23, both Taylor and Peck said it was because of the December problem.
If Peck and Taylor were to use ORC Sections 3.01 and 3.02 to avoid the January problem created by repealing Issue 23, that would mean those sections also could have been used to solve the original December problem, which would undermine their reason for repealing Issue 23.
"We're dealing with a situation where everybody just at convenience is going to ... switch arguments," Robe said.
Robe also said ORC Section 3.01 might not apply to Peck and Taylor's situation because of the type of government Nelsonville has.
Under the charter, all members of Nelsonville City Council are at large, rather than having members represent different wards like under a statutory government. Because of this, Robe said it would be difficult to tell which specific seat each council member fills, which would be necessary for Section 3.01 to apply.
"The problem is 3.01 kind of implicitly assumes we know what seat someone's running for," he said. "There's that ambiguity that exists in Nelsonville structure that doesn't really exist elsewhere."
If the Supreme Court instead rules against Nelsonville and allows all Issue 23 candidates to stay on the ballot, the Board of Elections would need to remove Saul and Taylor's names from the ballot under the charter because they are already running for council under Issue 23.
As of now, no one has filed a lawsuit to challenge the repeal itself, but attorney Daniel Klos told WOUB he plans to do so.
If Klos filed suit and won, the council's repeal of Issue 23 would be invalid. However, because Klos has not filed suit yet, it is unlikely the repeal would be declared invalid before the Supreme Court makes a decision about removing candidates from the November ballot.
If the court keeps the candidates on the ballot, Klos could file a declaratory judgment action asking the court to decide if Issue 23 was validly repealed.
However, Robe believes it is possible for the court to decline to determine the validity of the original repeal. Robe said this could lead to further litigation.
"That's likely to lead to more litigation, but probably on a case by case, officer by officer, office by office individual sets of ... ouster actions, not election ballot cases," Robe said.
Ouster actions would determine who would serve in each individual office.
If Klos loses, the repeal would be valid and Peck, Powell, Saul and Taylor would still need to appoint new people to fill the vacancies on the council.
As the Supreme Court case continues to play out, Robe says the council will have a lot of work to do no matter how the Court rules.