Legal Lode: Not for Their Consideration

Residents of Ohio town won't get a chance to vote down privatization measure

Residents who are unhappy with a city's decision to privatize residential waste collection cannot put the matter on the ballot in an upcoming election, according to a ruling by the Ohio Supreme Court.

After appropriating funds for solid waste management, the City Council of Upper Arlington, Ohio, adopted an ordinance authorizing the city manager to contract with Inland Service Corp. (ISC) for solid waste collection. As a companion measure, the city also enacted an ordinance setting an annual fee for waste collection services.

Reflecting widespread community sentiment, a local resident filed with the city a pre-circulation copy of an initiative petition proposing an ordinance to repeal the city's action. Undaunted, the city manager signed a contract with ISC. Indeed, the agreement provided that no "legislative action or … initiative or referendum process" would affect the parties' obligations.

The city eventually received a signed petition proposing an ordinance to undo what the city had undertaken. The proposed ordinance stated residents' opposition to the privatization of waste services and to the annual trash collection fee as well as their support for continuing the city's pay-as-you-throw system, unlimited recycling and garage-side pick-up by municipal employees. The countermeasure also called for cancellation of the contract and payment of damages to ISC.

City officials dutifully transmitted the initiative petition to the Franklin County Board of Elections, but later filed a protest. At a hearing on the protest, both sides presented arguments and evidence to the board. Without explanation, the board declined to rule on the protest, effectively denying the challenge and allowing the proposed ordinance to appear on the general election ballot.

The city promptly filed an action directly with the state Supreme Court to block the Board of Elections from placing the proposed ordinance on the ballot or, alternatively, to force the board to decide the protest. The filing apparently shook up the board, which quickly met and voted to deny the protest, leaving one issue for the court to decide: whether the board had the legal authority to place the ordinance on the ballot. The parties filed evidence and legal arguments on an expedited schedule, and the Ohio Municipal League and a number of residents weighed in with friend-of-the-court briefs.

A mere three days after the case had been argued, the justices unanimously ruled that the board had abused its discretion and disregarded applicable law in denying the city's protest. Under the Ohio Constitution, city residents can, by referendum, enact a measure overturning municipal laws, but only if the subject matter is within the power of the city to control by legislation. By comparison, administrative actions are not subject to reversal by referendum.

The court concluded that the ordinance under attack "merely executes and administers [existing] laws," noting that the city code authorizes the city manager to enter into a waste services contract without formal procurement where sufficient funds already have been appropriated. With the city having proved its right to the extraordinary relief it requested, the court granted a writ of prohibition preventing the Board of Elections from placing the initiative on the ballot.

[State ex rel. City of Upper Arlington v. Franklin County Board of Elections, No. 2008-1804, Oct. 2, 2008.]

Barry Shanoff is a Rockville, Md., attorney and general counsel of the Solid Waste Association of North America.

The legal editor welcomes comments from readers. Contact Barry Shanoff via e-mail: [email protected].