Step-by-step look at how Galion responded to ballot proposal

By Thomas Palmer - Galion Law Director

The recent ballot initiative decision by the Crawford County Board of Elections has people talking on the street and on the web. It follows several months of presentations and the circulation of petitions by a group of citizens advancing the idea that the power cost adjustment (“PCA”) ordinance, adopted in 2005, was incorrectly applied and created a series of overcharges which could be identified by audit and returned to electric utility customers.

It seems like a very good time to share a step-by-step review of how the City of Galion responded to this proposal.

Once supporters announced their intention to file a ballot initiative in late 2014, things moved quickly at the Municipal Building. From the outset, allegations were taken seriously and at face value. By the time that June arrived, however, legal research done in-house had revealed that despite the group’s expressed goals, Ohio citizens do not actually have the ability to propose initiatives dealing with operation of a public utility. Even if the measure was passed by voters, Council would have no legal authority to move forward with an audit. We also watched throughout this period to see whether or not Citizens for Galion would follow the Ohio Revised Code’s fiscal emergency statutes and submit the proposal to the City’s financial supervisor for review – something required before it could be voted upon. We watched and watched, but this was never done.

Now imagine our intense confusion when, despite these realizations which Citizens for Galion could and should have reached on its own, petitions were actually circulated and support encouraged for a measure which could never be enacted into law. We were all perplexed why Citizens for Galion would actually do such a thing.

Mind you, there was also strong concern over the proposed course of action, and for good reason. Take, for instance, the question of an audit of electric rates. The ballot initiative as proposed would seek an audit of the application of the PCA ordinance and the determination of “overcharges” which would then be refunded to electric utility customers. Yet, this type of audit has never, and will never, be possible. Why, you ask? The PCA ordinance called for a mathematical calculation to take place but also gave discretion to the City Manager to use that calculation – and other information as well, including recommendations – to set the rate which appeared on your utility bill. Simple common sense indicates that while numbers can be audited, someone’s mind cannot be audited, and so it was and is literally impossible to determine whether or not overcharging or undercharging took place according to that ordinance.

These concerns extended into other practical matters. Many Galion citizens are rightfully concerned about what they pay for electricity, and yet we were informed from those in financial oversight positions that any sizable money taken out of the electric fund for “rebates” would have to be immediately put back in the form of dramatically higher electric rates. Is this something which you would have welcomed? This would not have been Council’s choice, by the way; because we are under fiscal emergency, these actions could actually be mandated. Further, we were informed that the cloud caused by this process would risk prolonging the City’s state of fiscal emergency, already one of the longest in the state’s history.

Once the announcement was made that a ballot issue would be introduced after multiple promises that it would include rebates from the electric fund, updates on the matter were sent to City Council. Council then acted to grant my office the authority, as it can do under the Ohio Revised Code, to undertake any legal measure necessary to address an illegal ballot measure and to also safeguard citizens against high electric rate increases and prolonging our fiscal emergency status.

Again, I want to emphasize that there was no choice in this, as taking money from a public electric utility fund of a statutory city in Ohio cannot be done by initiative, and cannot be done without following fiscal emergency statutes. That’s the law in Ohio, not as written in Galion, but as written in Columbus.

At this juncture, my office obtained a legal opinion from Attorney Don McTigue, one of the leading election law attorneys in Ohio, to validate and expand upon these legal conclusions as this was the first time in Ohio history that an initiative of this nature was proposed in a city under fiscal emergency. That action did not require Council approval. After receipt of his legal brief, this office drafted an ordinance for Council’s consideration retaining him as special counsel for a Board of Elections protest – the very first opportunity the City had to deal with the illegality of the measure. At all times Ohio Sunshine laws were followed, and Attorney McTigue was retained to represent the City of Galion by a unanimous vote of City Council in open session. He was officially retained the next day.

The protest was then filed by the City and a local resident citing grounds which had been identified months before. Three hours of testimony and other evidence resulted in a unanimous Board of Elections decision to not place the initiative on the November ballot. The issue concerning initiatives and public utilities was not mentioned by Citizens for Galion at the hearing; in fact, there was no contrary argument provided on that point at all.

Ms. Wade’s letter does not use a single word to address the substance of the Board of Election’s decision, instead talking only about smoke and mirrors — with “look at that man behind the curtain” suggestions, whispers of intrigue, and vague allegations of conspiracy. None of that actually exists, of course; there has been and is no conspiracy, no lying, and no withholding of public records. All of that is nothing more than manufactured drama which diverts attention from a flawed proposal which has already cost taxpayers thousands of dollars in legal fees.

By Thomas Palmer

Galion Law Director