October 17, 2019

Local municipalities defend their eroding right to home rule

By Abby Miller | News Editor

ouncilwoman Chris Fahl became the representative of Athens’ fourth ward to protect the health, safety and welfare of those who reside there. Right now, those people are angry.

That anger isn’t necessarily directed towards Fahl. Fahl says people in her ward are upset by prevailing corporate interests, restrictions on where people can protest and the minimum wage. In all of those cases, she said, the state legislature in Ohio is taking away the right for municipalities like Athens to make their own decisions on issues like those.

Municipalities in Ohio have home rule, meaning local governments can make their own laws outside of the Ohio Revised Code. At the same time, the state government can use its power of preemption to make laws that render local actions obsolete.

That’s where the people in Fahl’s ward get upset.

“People are pissed,” Fahl said. “They should be pissed. It doesn't matter if you're Republican or independent, or, you know, Democrat … who cares? It's an infringement of our basic rights.”

Home rule is slipping through the fingers of local governments across the state. While action can be taken to mitigate the effects of state government preemption, it still leaves municipalities restricted in meeting the demands of their citizens and taking action in the current political moment.


Municipalities and counties are explicitly given the right to home rule in Ohio’s state constitution.

“Municipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws,” according to the state constitution.

Not all states have home rule written in their state constitution. Because of this, Fahl said it’s important to know what exactly home rule is and to protect it.

“(Ohio was) one of the most progressive states in the union,” Fahl said. “And they looked at (home rule), and it's important to understand the history of it, and also understand … what it takes away from us when they impose on it, when it takes away from our people, where the people live.”

Councilman Jeff Risner, D-2nd Ward, has been on City Council for about eight years. He’s seen local government preemption become a larger issue during the past four to five years.

The Republican-controlled state administration and its growing pro-business agenda are largely to blame, Risner said. He also said the loss of home rule seems to have slowed down a bit ever since Gov. John Kasich left office earlier this year.

“The governor is aware that this has been a historical concern for local city and village councils,” Dan Tierney, press secretary for DeWine, said. “The governor's approach has been to try and be more of a partner with local governments. You saw that approach with his budget where he works to provide specific targeted funding sources to local governments.”

Risner says Republican Ohio House Speaker Larry Housholder is to blame for most of the current state preemption of local laws.

“He's been very, very … pro-business before, pro-very large corporation business, rather the small business,” Risner said. “And to do that, legislation … has taken more and more of our local control away.”

Fahl, also a Democrat, said preemption started back with Kasich.

“This is not a balance of preemption,” Fahl said. “This is a Republican tool.”

State preemption prompted Athens City Council to pass a resolution in March that reaffirmed the city’s ability to home rule, according to a previous Post report. The resolution noted encroaching statewide regulations on fracking, single-use plastic products and common sense gun safety restrictions.


House Bill 242, which was introduced in May, would restrict local municipalities from being able to charge taxes for single-use plastic products. That would include plastic bags.

Fahl said the bill was the legislature’s attempt to standardize rules across the state in order to benefit both the plastics and fracking industries.

“It's basically saying ... We're held captive to industry,” Fahl said. “The legislature is legislated for corporations and not for the people of Ohio.”

Preemption also takes away the ability for people who are a part of the individual cities and know them best to make the laws, Risner said. Minimum wage is another issue where the state has preempted local governments from making its own regulations.

Fahl said she would like the minimum wage in Athens to be $15. Preemption means that Athens has to follow the state-mandated minimum wage instead, which is $8.55 an hour, according to the Ohio Department of Commerce.

“They're not paid very well. They're not paid a living wage. They don't have benefits, and they don't get sick leave,” Fahl said. “That's, that's how our legislature sees people down here. Health insurance, any of that sort of stuff … for the most vulnerable of our citizens? We can't do anything about that.”


While direct action can’t be taken to fix Athens’ minimum wage or impose fees on plastics, local preemption does do at least one good thing for local government. Fahl said the issue of preemption pushes legislators to think outside of the box like never before.

In response to the preemption of the city’s ability to zone land use, which allowed for fracking and dumping to occur closer to city limits, Athens established new chapters in its city code.

The Athens Resource Extraction and Waste Disposal Monitoring and Mitigation Program made it so companies who want to mine or extract resources in Athens must get a license from the city.

For every instance of local government preemption, Athens City Council also writes a resolution stating their opposition. Fahl is usually the one to write those resolutions.

Those resolutions are sent to a slew of officials including Rep. Jay Edwards, Sen. Frank Hoagland and Gov. DeWine, among others.

A resolution on House Bill 242 was passed and sent, according to a previous Post report. It stated Council’s opposition to the bill and urged the Ohio state government to take additional action.

“Athens City Council hereby declares its opposition to House Bill 242, as it continues to preempt municipal Home Rule authority by prohibiting municipalities the opportunity to govern the use of disposable single-use plastic,” according to the resolution.

The fight for home rule extends all over the state. The Ohio Municipal League, based in Columbus, represents municipalities across the state, including Athens. The nonprofit mostly engages with the legislative branch by lobbying and meeting with administrators to advocate for the rights of municipalities.

Ashley Brewster, director of communications for the Ohio Municipal League, said the nonprofit’s work often includes issues of home rule.

“We try to alert members when testimony for bills that are especially impactful preemptions against Home Rule are up for hearing so that ... local leaders can either come to the statehouse and testify in opposition to them, or if there's a bill that we really like, we want them to come to the statehouse and support it,” Brewster said.

One of the major bills the Ohio Municipal League, or OML, has worked against is House Bill 242. OML has offered opposition testimony on the bill.

“(House Bill 242 is) not moving,” Brewster said. “But we’re definitely, that's one of the bigger ones that we've been tracking on behalf of our members.”

In one of the biggest issues of local government preemption, Athens joined a lawsuit with other cities throughout Ohio to oppose a state-mandated communication law, according to a previous Post report. That law would allow communication companies, such as AT&T, to put their equipment on light poles and traffic lights throughout Ohio cities.

Joining the lawsuit cost the city $6,000, according to the previous report. Risner said the suit is still ongoing, but progress has been slow.

The lawsuit was initiated in 2017 and marked continuing government preemption that the city and others around the state continue to fight.

Risner and Fahl both agree that they could see Athens engaging in additional litigation down the road to protect their right to home rule.

“We would jump into a suit and try and take it to court,” Risner said. “You may lose, but you go down swinging.”

AUTHOR: Abby Miller
EDITOR: Bennett Leckrone
COPY EDITOR: Bre Offenberger