Below is the legal opinion I requested from local attorney Reese Mills as to

Councilmember Katie Getz residing outside the Village on a temporary basis later this
year. - John Studenmund, Lexington law director

Dear John –
                This email is being sent in response to the question you asked me to research
concerning whether an incumbent Councilperson for the Village of Lexington can
continue to serve in that elected position.  From the information you have provided, it
appears that the residence owned by Katie Getz, a Village Councilperson, and her
husband has been sold and they will vacate that home on November 5, 2021, but they
have already signed an agreement to purchase two lots in the Village and to have a
new home constructed thereon next spring.  They have looked for, but has been unable
to find, a temporary place for their family to reside with the Village. In the meantime,
they will be temporarily living in a residence within the Lexington School District, but
outside the Village of Lexington.
                The relevant Lexington Charter provision relating to this matter is Section
3.02, which reads in pertinent part as follows: “(C) Members of Council shall have been
qualified electors of the municipality for at least eighteen (18) months prior to taking
office and during their term of office. . . .” (Emphasis added).  With respect to this
Charter provision, Attorney Harry M. Welsh sent a letter dated March 8, 2013 to the
Mayor of Lexington recommending that this Section 3.02 be amended by adding the
following language: “(D) All members of Council shall remain residents of Lexington
during his/her entire term of office.” (Emphasis added).  Based upon his knowledge of
an earlier situation involving a County Commissioner, it was his opinion that being an
elector of Lexington and being a resident of Lexington were two separate, independent
issues.  In other words, an elected official could be an elector of the Village without also
being a resident thereof. Thus, the question here is whether Katie Getz is an elector of
the Village, and not whether she is a resident thereof.
                Attorney Welsh’s belief is supported by Article V, Section 1 of the Ohio
Constitution, which states in its entirety as follows:  “Every citizen of the United States,
of eighteen years of age, who has been a resident of the state, county, township, or
ward, such time as may be provided by law, and has been registered to vote for thirty
days, has the qualifications of an elector, and is entitled to vote at all elections.  Any
elector who fails to vote in at least one election during any period of four consecutive
years shall cease to be an elector, unless he again registers to vote.”  (Emphasis
added). Stated another way, this wording suggests that a person who is a qualified
elector by having registered to vote and has voted remains an elector, and only ceases
to be an elector if that person fails to vote in at least one election in four consecutive
years.
                In Donahue ex. rel. Allen County Board of Elections, 2021-Ohio-3292, 2021
WL 4268244, the eligibility of a City of Lima mayoral candidate was challenged on the
basis that she was not a resident of the City.  Section 72(A) of the Charter for the City of
Lima states in pertinent part that: “all elected officers of the City of Lima shall
be residents and electors of the City for at least six (6) months before the last date on
which nominating petitions can be filed in accordance with this Charter .  . .” (Emphasis
added). The Board of Elections denied this protect and concluded she was a resident of
the City, and on appeal, the Ohio Supreme Court found that the record supports this
conclusion reached by the Board of Elections.
This person had previously resided in the City of Lima, but did not live in the City
when she became a candidate for mayor because she was employed elsewhere as a
geologist.  The protestors argued that she was not a resident because she lived
elsewhere, she had a Pennsylvania driver’s license, her vehicle was registered in the
State of Texas, she had formed two companies in the State of Texas, and she had paid
no Lima City income tax. However, she claimed that she had voted in every Allen
County, Ohio election either in person or by absentee ballot.  The issue decided in this
case was her residency because, the Court noted, as dicta, that under these
circumstances, the parties did not dispute the fact she was an elector in accordance
with the Charter, apparently because she had been registered to vote there and had
voted.  This decision supports the position that being an elector and being a resident
are two separate, independent determinations.  This decision also supports the
concerns and recommendations of Attorney Welsh to add the residency requirement to
Section 3.02 of the Lexington Charter.
                Therefore, based upon the foregoing analysis, since Katie Getz is currently an
elector of the Village of Lexington, she remains an elector of the Village of Lexington
unless she fails to vote for four (4) consecutive years. A determination of whether she
may still be considered a resident of the Village of Lexington is not necessary because
the Charter does not require residency. Even if it did require residency, she might
arguably remain a resident of the Village under the reasoning of the Donahue case
since living outside the Village is intended by her to only be temporary until she moves
into her new home within the Village. Thus, still being an elector, she can continue to
serve as a Councilperson of the Village of Lexington.
Sincerely,
Reese F. Mills
Mabee & Mills, LLC
24 W. Third St., Suite 300
Mansfield, Ohio 44902
Tel:  (419) 524-1403
Fax: (419) 522-4315
rmills@mabemills.com