Smith v. Nelsonville
2023 Ohio 2844
Ohio Ct. App.2023Background
- Gregory Smith, a Nelsonville city council member, was removed by council after a third removal attempt alleging he failed to maintain continuous city residence.
- Council did not pass an ordinance or resolution requesting the county prosecutor to prosecute the removal; any contact with the county prosecutor was made by the city manager.
- Council adopted Resolution No. 2246 (Aug. 23, 2021) appointing a special prosecutor; an administrative hearing (Sept. 2, 2021) resulted in Smith’s removal via Resolution No. 2247.
- Smith appealed to the Athens County Court of Common Pleas, which reversed, holding the charter required council to request the county prosecutor by ordinance or resolution before appointing special counsel and that failure rendered the removal a nullity.
- The City/council members appealed to the Fourth District Court of Appeals; the appellate court affirmed the trial court, concluding the charter required formal council action and the defect was not harmless.
Issues
| Issue | Plaintiff's Argument (Smith) | Defendant's Argument (City/Council) | Held |
|---|---|---|---|
| 1. Whether the charter requires council to request the county prosecutor by ordinance or resolution before appointing a special prosecutor for removal proceedings | Charter requires council action by ordinance or resolution under §4.09; no ordinance/resolution was passed, so removal was invalid | §11.08 does not expressly require an ordinance/resolution; charter provisions are not irreconcilable and formal action was not necessary | Held: Charter read in pari materia requires the request to be made by ordinance or at least resolution; failure to do so nullified the removal |
| 2. Whether the council's failure to follow the charter was harmless error | Procedural defect rendered action void; no harmless-error defense when action is a charter-nullity | Any procedural lapse was ministerial; Smith’s substantive rights were not prejudiced; harmless error should apply | Held: Not harmless; where council lacked authority to act (no ordinance/resolution), the removal was void |
| 3. Whether Smith waived the right to challenge appointment of the special prosecutor | Preserved the issue via public-records requests and cross-examination; did not waive objection | Smith failed to timely object during the administrative hearing and thus waived the issue | Held: No waiver; issue was preserved and may be raised on appeal |
| 4. Whether the trial court abused its discretion in its review of the evidence supporting removal | (Smith) Trial court properly disposed of case on charter defect; sufficiency of evidence unnecessary | (City) Trial court erred and gave only cursory review of evidence sufficiency | Held: Moot—appellate court did not reach merits of evidence after disposing of procedural/charter issues |
Key Cases Cited
- State ex rel. Gerhardt v. Krehbiel, 38 Ohio St.2d 90 (1974) (municipal legislative body must follow charter removal procedures; action in conflict with charter is a nullity)
- Henley v. Youngstown Bd. of Zoning Appeals, 90 Ohio St.3d 142 (2000) (limits appellate review in R.C. 2506.04 appeals to questions of law)
- Kisil v. Sandusky, 12 Ohio St.3d 30 (1984) (distinguishes scope of appellate review from trial court’s review under R.C. 2506)
- AT&T Communications of Ohio, Inc. v. Lynch, 132 Ohio St.3d 92 (2012) (trial court may not substitute its judgment for an administrative agency without proper basis)
- State ex rel. Cater v. Olmsted, 69 Ohio St.3d 315 (1994) (courts should not assess feasibility or wisdom of charter provisions)