July 9, 2019
The attorney for the Williams County Alliance has asked the Williams County Board of Elections to provide its justification in court for rejecting the Alliance’s proposed county charter petition.
In a letter dated July 8 to the county elections staff and board, the Alliance’s Toledo-based attorney Terry Lodge wrote that the board’s denial of the charter petition Monday was “unlawful” and the reasoning for the rejection was “constitutionally invalid.” He asked that the issue be brought before the Williams County Court of Common Pleas on or before July 17, which he said is within the timeframe — 111 days before the general election — prescribed by state statute.
The proposed charter petition seeks to change Williams County from a statutory form of government to a charter, which supporters said would give the county more local decision making. The effort is seen by supporters as a way to legally oppose efforts by Artesian of Pioneer (AOP) to drill into the local aquifer and deliver up to 14 million gallons a day to entities outside the county.
The Alliance had collected more than 2,500 signatures of registered voters and delivered them to the elections board June 26 in an attempt to qualify the charter petition for the November ballot.
But at the elections board monthly meeting Monday, Elections Director A.J. Nowaczyk ruled that based on his conversations with the board’s legal counsel — County Prosecutor Katie Zartman — and in his own opinion, language in the proposed charter issue exceeds the scope of the powers afforded to local governments by the state.
In his letter, Lodge disagreed. “We believe that the Board of Elections’ refusal to follow the statutory requirements to forward the proposal to the County Commissioners was unlawful, and its reasoning that the petition is constitutionally invalid were unlawful determinations, rendered unlawfully, are constitutionally unsupported, and are arbitrary and capricious,” Lodge wrote.
Lodge noted that according to the Ohio Revised Code, Section 307.94, a hearing must be concluded and a judge’s ruling communicated to the Williams County Commissioners in time for them to certify the proposed county charter issue to the ballot no later than 4 p.m. on the 111th day before the November election, or Wednesday, July 17.
County Prosecutor Katie Zartman said Tuesday she is researching “what we need to file in court” and when. She said state statute says a court hearing is required “so we’ll take it to court.”
Zartman said she advised Nowaczyk that based on previous rulings, and on ORC 307.94, and ORC 3501.38 M1B, “my review of the petition is that it exceeds the county’s authority,” as Nowaczyk referenced Monday.
However, she also said she merely advised Nowaczyk of her legal opinion, and that state statute requires the elections board, not the county prosecutor, to make the decision.
She said she advised Nowaczyk, who then advised the four board members, which was confirmed by Elections Board President Mark Fox on Tuesday.
“I didn’t instruct them. I laid out the law (for Nowaczyk) and let them make their own decision,” said Zartman, noting that the Ohio Legislature in 2016 made revisions to charter petition procedures, but that law is currently being challenged in a case pending in federal district court.
Zartman called charter petition law “very complex, very complicated,” and “very unsettled.”
“It’s a quagmire,” she said.
“We’re trying to do the right thing as soon as possible,” Zartman added.
Sherry Fleming of the Alliance said she was aware that similar initiatives and charter home rule efforts attempted over the past several years in other counties and municipalities around the state — many geared as a way to stop fracking in those communities — had been rejected by local common pleas and state appellate courts, the Ohio Secretary of State’s Office and/or the Ohio Legislature.
But, said Fleming, who attended Monday’s elections board meeting with about two dozen Alliance members and supporters, “I was shocked at what happened Monday. I expected some resistance, but I think I expected it later in the process.”
Fleming noted the elections office counted 2,077 valid signatures, far more than the 1,364 required for the initiative to move forward.
On Tuesday, Fleming questioned the decision. She noted the July 8 meeting date was set up after a flurry of questions and a letter from Lodge questioning the elections office’s knowledge of deadlines after the office initially had set a July 16 date for the board’s monthly meeting. After consulting with Zartman, Nowaczyk reset the meeting for July 8.
Board members Scott Towers and Jeff Erb, both Republicans, along with Fox, a Democrat, voted in favor of Nowaczyk’s recommendation to find the petition invalid on Monday. Board member Paul Duggan, the county Democratic Party chairman, opposed the recommendation.
Fox said Tuesday he voted to uphold the denial “based on advice from legal counsel, which was the county prosecutor.”
Duggan did not return a call seeking comment Tuesday.
Also late Tuesday, the Williams County Board of Commissioners called an emergency meeting for 9 a.m. today. The stated purpose of the meeting “is to appoint counsel on behalf of the Board of Elections.”