Nelsonville’s former City Council president has filed a complaint with the Athens County Board of Elections alleging that current City Council member Greg Smith is violating the city’s charter by not being a full resident of the city.
Smith denies the charge – in an email Friday, he said that he lives at a home on Adams Street in Nelsonville, and added that it’s his only residence.
Meanwhile, in an opinion issued last Thursday, Assistant Athens County Prosecutor Zach Saunders said that Ohio law gives public officials leeway in this area, so it doesn’t look as if Smith is violating the city’s charter.
However, former City Council President Ed Mash in his complaint filed July 17 alleges that Smith is just maintaining a “home for his wife” in Nelsonville, and is actually living in Belpre in neighboring Washington County.
“…(Smith) stays at the Adams Street residence approximately one night a week in Nelsonville… Mr. Smith has been living at (street address) Belpre, Ohio for the (sic) over 10 years,” Mash claimed in his complaint.
According to Nelsonville’s City Charter, all members of City Council “must be and must remain residents” of Nelsonville.
Saunders in his opinion cited Ohio Revised Code relating to determining a person’s residence (for the purpose of ascertaining a person’s general voting eligibility).
“It appears that while there is (sic) some issues as when Mr. Smith is Nelsonville, it does not appear that he has shown an intention of not returning,” Saunders wrote. “The presumption is that he resides in Nelsonville, based upon his voting record as well as his wife living at that address. The only information before our office is that Mr. Smith may be taking care of (a Belpre resident’s) mentally handicapped child, which would satisfy Mr. Smith temporarily being in Belpre, with the intention of returning to Nelsonville. Although social media may show Mr. Smith being in Belpre at certain times, this does not equate to him permanently residing in Belpre rather than Nelsonville.”
Mash in his complaint said that Smith has spent most of his time living at the Belpre address for the past 10 years.
“I have personally driven to Belpre to confirm if the address was correct and to confirm if Mr. Smith was in fact living in Belpre,” Mash said. “Mr. Smith has a substantial connection with (a named Belpre resident). Photos of Mr. Smith cooking and even photos of him having Christmas at (Belpre address) (are) on her Facebook account. I have these photos.”
Saunders said in his opinion that as a general rule in Ohio, the residence of a person is the place in which his or her habitation is “fixed,” and to which, whenever he or she is absent, he or she has the “intention of returning.”
“A person does not gain (or lose) a residence in any county of the state into which he or she comes for temporary purposes only, without the intention of making such county his or her permanent place of abode… A person having a permanent abode at a fixed place may retain the abode as a domicile even though that person is frequently absent for long periods of time,” Saunders said, citing several court cases.
IN OTHER NEWS, some questions have been raised in Nelsonville additionally about where City Manager Chuck Barga lives. According to Athens County Auditor’s Office records, Barga lives at an address on Athens’ South Side.
According to Nelsonville’s charter, “The City Manager shall be appointed solely on the basis of his executive and administrative qualifications, and need not be a resident of the City at the time of his appointment, but shall become a resident of the City within six (6) months after his appointment.”
Barga was hired on as the city’s interim manager in early March 2017
Asked about this issue in late July, Barga provided an opinion from City Attorney Garry Hunter, stating that it’s “illegal” to impose a residency requirement on municipal employees. Hunter cited a 2009 opinion from the Ohio Supreme Court on an Ohio law that prohibits political subdivisions from requiring employees to reside in any “specific area of the state.”
“The cities, in Akron, Ohio… and Lima, Ohio, required their employees to live in the respective cities, but R.C. 9.481 barred political subdivisions from imposing such requirements,” according to the case law cited by Hunter. “The trial courts said the statute was a valid exercise of the legislature’s authority pursuant to (the Ohio Constitution) but the courts of appeal disagreed. The Supreme Court agreed with the trial courts and held the statute… prevailed over the conflicting local laws, despite the cities’ home rule authority in (the Ohio Constitution) because no other provision of the Ohio Constitution could ‘limit or impair’ laws enacted pursuant to (the Ohio Constitution) provided for the comfort and general welfare of employees by allowing them more freedom of choice of residency, so it was validly enacted.”
Barga’s latest contract signed with the city of Nelsonville on March 1, 2017, describes him as a “City Manager Transition Officer.” The duration of his contract is listed as “until the contractee resigns, or his employment is terminated by Council.”