Emergency Clauses in Local Legislation: Are you using emergency language correctly?

In Ohio, local governments are generally permitted to enact ordinances with “emergency” clauses so they take effect immediately. While the timing can be altered in a charter, Ohio statutes provide that ordinances take effect 30 days after they are enacted. R.C. 731.29. The intent of the 30-day window gives residents an opportunity to file a petition for a referendum to repeal the ordinance.

But an emergency clause makes the ordinance effective immediately. Consequently, emergency language eviscerates the public’s right to a referendum. The public tends to give extra scrutiny if an agency routinely uses the emergency clause without good reason.

However, the courts’ authority to review emergency clauses is very limited. As long as the public agency states a colorable reason for the emergency, courts are required to uphold it.

An emergency is something needed to preserve the public peace, health, or safety of the municipality. An ordinance declaring an emergency must state the reason for the urgency — merely reciting it is necessary to protect the peace, health, or safety is not sufficient.

In order to state a sufficient reason, an emergency clause needs to provide enough detail to inform the public of the basis for the agency’s decision. The explanation does not have to be lengthy or detailed. As long as some reason is articulated, courts are legally prevented from reviewing the soundness of the agency’s decision. Sufficient reasons justifying an emergency clause have included the following:

  • The municipality needed additional revenue in order to continue to provide vital services (Huebner v. Miles, 92 Ohio App.3d 493 (1993))
  • To meet filing deadlines for an upcoming election (Osborne v. City of North Canton, 2014-Ohio-3199)

If you have any questions about emergency clauses or anything related to local government, feel free to call Kevin Frank at (513) 852-6000.

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    James B. Harrison

    James Harrison practices in the firm’s Business Law Practice Area. He has represented and counseled hundreds of businesses and organizations, including start-ups and emerging growth companies in all aspects of business law, including mergers, acquisitions, sale or other equity events as well as strategy around operations, funding, and exit.

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