Judge rules charter petition had enough signatures after all

Second, he sided with the elections board in ruling that a proposed executive council (comprised of county elected officials who aren’t county commissioners) does not meet Ohio Revised Code requirements for a county executive under an alternative form of government.

On Tuesday, McCarthy reversed the portion of his decision regarding the signatures. He said that the elections board agreed that sufficient elector signatures were submitted to comply with the requirement that a number equal to 10 percent of votes in Athens County in the race for governor in 2014 were submitted.

Aside from that modification, McCarthy noted, the rest of his judgment remains in full force and effect, meaning that the proposal still remains rejected from the ballot. The next move for the committee proposing the charter will be to appeal that decision, though they did not want to go forward with the appeal until the signature issue was resolved.

The county Board of Elections rejected the proposed county charter for the third year in a row on July 10, not due to a lack of valid signatures but because board members said it didn’t include a county executive position required under Ohio Revised Code statute for alternative forms of government.

As with initiatives in the previous two years, this charter proposal doubles as an effort to keep oil and gas horizontal hydraulic fracturing (fracking) out of Athens County, through prohibiting the use of local water for fracking operations. It also would outlaw future fracking waste-injection wells, of which Athens County already has several in operation.

Both of those cases (2015 and 2016) also ended up in the Ohio Supreme Court, the first time after a local citizen challenged Judge McCarthy’s ruling in favor of the charter, and the second time after the charter group appealed the elections board’s decision directly to Ohio Secretary of State Jon Husted, who rejected the appeal, prompting the group to take it to the high court.

In McCarthy’s ruling, he said that a plain reading of Ohio Revised Code 302.02 “indicates that the authority of a county executive rests in an individual and not a council.” 

He pointed to ORC 302.15 referencing a single individual when it states that “only an elector of the county shall be eligible for election as county executive,” and ORC 302.16, which states that “the county executive shall be an elector of the county and appointed by the board of county commissioners.”

“Therefore, for those reasons including those referred to above, the court finds that the board’s decision that the petition was invalid for failing to provide for the appointment or election of a county executive is reasonable,” he wrote. “The court finds that (the BORC’s) remaining arguments that the board’s decision was incorrect unpersuasive.”

On this point, Bill of Rights Committee attorney Pat McGee argued that the charter was proposed under the Ohio Constitution, Article X, Section 3, so the Ohio Revised Code statute concerning alternative government and a county executive does not apply. Moreover, he said, the constitution would trump statute in an either/or scenario.

The question of whether charters are formed separately under the Ohio Constitution, not beholden to statute under Ohio Revised Code, or whether ORC dictates all alternative forms of government including charters will form the basis of the coming legal fight that will now likely make it all the way to the Ohio Supreme Court once again.