IN THE COURT OF COMMON PLEAS

HAMILTON COUNTY, OHIO

STATE EX REL. MARK MILLER, : CASE NO. A1801834

:
RELATOR, : Judge Robert P. Ruehlman
:
-v- :
: RESPONDENTS CHRISTOPHER
COUNCILMEMBER SITTENFELD, : SMITHERMAN AND THE CITY OF
ET AL., : CINCINNATI’S RESPONSE TO
: MOTION TO INTERVENE
RESPONDENTS. :
:
Respondents Councilmember Christopher Smitherman and the City of Cincinnati

oppose the Motion to intervene in this case. As set forth more fully below, while

intervention is discretionary and permissive, the alleged open meeting violations are

based on different facts and, as a result, distinct legal questions. While judicial economy

may favor intervention, there is no need to litigate these separate inquires in a single

action. Rather, and to the extent the Intervenor seeks to resolve a distinct legal

question, he may do so in a separate case.

I. Facts

The Plaintiff’s Intervening Complaint identifies a single informational text from

the City Manager regarding an employment matter as the originating source of a string

of texts that allegedly constitute an Ohio open meetings violation. See, Complaint in

Intervention, ¶8-17, Exhibit A. As set forth below, the Council had no authority to act on

the City Manager’s text attached as Exhibit A to the Complaint in Intervention. Further,

less than a quorum appeared to participate in any discussion of the text, there was no

“deliberation” and no Council action was taken. It simply cannot be that every time the

City Manager issues an informational communication to City Council that the Ohio open

meetings law is implicated.

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 The Court should compare the single informational text from the City Manager

with the facts as alleged in the primary Complaint in this case. In the original

Complaint the Relator alleges a series of meetings and proceedings of a quorum of

Council that resulted in a distinct action by that quorum. Complaint at ¶32-44. The

Intervening Complaint alleges a single text string that is at most informational, and not

any deliberation regarding a potential Council action. Resolving these two issues in a

single case may be illustrative, but it is not required, and this Court should exercise its

discretion now to prevent the needless expansion of this case.

II. Law

The Intervenor correctly identifies the standard that applies to Intervention.

Rule 24 B provides for discretionary intervention when “an applicant’s claim or defense

and the main action have a question of law or fact in common.” Here, the Intervening

Complaint and the primary Complaint address different factual scenarios. There is a

difference between the City Manager’s informational text and Councilmember responses

regarding a City employee under the City Manager’s control and City Council exchanges

regarding potential removal of the City Manager who Council may vote to remove.

The complaints also raise different questions of law. Under the Cincinnati City

Charter, the City Manager is the chief executive and administrative officer of the City.

The City Manager is charged with both advising the City’s elected officials and with

primary authority to “make all appointments and removals in the administrative and

executive service. . .” City Charter Article IV, Section 3. However, unlike all other City

employees, the City Council has a specific role in the removal of the City Manager. City

Charter, Article III, Section 2; Article IV, Section 1.

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 Accordingly, while City Council may comment or provide its opinion regarding

the removal of a City employee as an action taken by the City Manager, it lacks authority

under the Charter to take action specific to that employee. Therefore, any Council

discussion involving the removal of a City employee as detailed in Exhibit A of the

Intervening Complaint is legally different than the discussion alleged in the Complaint

regarding the removal of the City Manager.

III. Conclusion

While both the Complaint and the Intervening Complaint allege an Ohio open

meetings violation, the factual predicate is different, and the legal authority of the City

Council to deliberate and act is different. Accordingly, this Court should exercise its

discretion to decline intervention. The City can defend the actions of the respondents in

the original action separate and apart from the unique facts and legal authority that

distinguish the allegations in the Intervening Complaint.

Respectfully Submitted,

Paula Boggs Muething

City Solicitor

/s/ Emily E. Woerner

Terrance A. Nestor (0065840)
Deputy City Solicitor
Emily E. Woerner (0089349)
Assistant City Solicitor
Room 214, City Hall
801 Plum Street
Cincinnati, Ohio 45202
Phone: (513) 352-3307
Fax: (513) 352-1515
terry.nestor@cincinnati-oh.gov
emily.woerner@cincinnati-oh.gov
Counsel for Respondents

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 CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing was filed and sent via electronic mail

to the following on July 16, 2018:

Paul DeMarco Brian Shrive

Markovits Stock & Demarco FINNEY LAW FIRM, LLC
3825 Edwards Rd. Suite 650 4270 Ivy Pointe Blvd., Suite 225
Cincinnati, Ohio 45209 Cincinnati, Ohio 45245
pdemarco@msdlegal.com brian@finneylawfirm.com
chris@finneylawfirm.com
Attorney for Intervenor Attorneys for Relator Mark Miller

s/Emily E. Woerner
Emily E. Woerner (089349)

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