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IN THE SUPREME COURT OF OHIO

THE STATE OF OHIO EX REL. Case No. 2012-1545 CITY OF BRECKSVILLE, OHIO, Original Action in Mandamus and Relator, Prohibition

vs. Expedited Election Case, S.Ct.Prac.R. 10.9 JON HUSTED, ET AL.,

Respondents.

EVIDENCE OF RESPONDENT CUYAHOGA COUNTY BOARD OF ELECTIONS

DAVID J. MATTY * (0012334) MICHAEL DEWINE (0009181) * Counsel of Record Ohio Attorney General SHANA A. SAMSON (0072871) MICHAEL J. SCHULER * (0082390) Rademaker, Matty, Henrikson * Counsel of Record & Greve LLC AARON D. EPSTEIN (0063286) 55 Public Square, Suite 1775 DAMIAN W. SIKORA (0075224) Tel: (216) 621-6570/Fax: (216) 621-1127 Assistant Attorneys General drnattygnnmalaw. com Constitutional Offices Section ssampson(w',rmmg1aw.co m 30 East Broad Street, 16th Floor Columbus, Ohio 43215 Tel: (614) 466-2872/Fax: (614) 728-7592 SERGIO DIGERONIMO (0042030) michael.schuler(6hohioattomeyzeneral.gov 8748 Brecksville Road, Suite 216 aaron epsteinAohioattorneyQeneral.Qov Brecksville, Ohio 44141 damian. sikora(&ohioattorney¥eral. aoI Tel: (440) 546-9200/Fax: (440) 546-9201 sdiaeronimo ^brecksville.oh.us Counsel for Respondent Ohio Secretary of State Jon Husted

o ^ ^^'^- MED G^ ^ G ( ^ ^ D F SEP 2 4 2012 CLtttK OF COURT

^Cy l.^Ep 4^t nF CC11(RT /^;^ I SUPREME COURT OF OHIO I SU PRCStliL LUUrI€ ui r.;i6i13 WILLIAM D. MASON (0037540) Prosecuting Attomey of Cuyahoga County, Ohio CHARLES E. HANNAN * (0037153) * Counsel ofRecord Assistant Prosecuting Attorney The Justice Center, Courts Tower, 8 th Floor 1200 Ontario Street Cleveland, Ohio 44113 Tel: (216) 443-7758/Fax: (216) 443-7602 channan(cUcuyahogaaounty.us

Counsel for Respondent Cuyahoga County Board of Elections IN THE SUPREME COURT OF OHIO

THE STATE OF OHIO EX REL. ) Case No. 2012-1545 CITY OF BRECKSVILLE, OHIO, Original Action in Mandamus and Relator, ) Prohibition

Expedited Election Case, vs. S.Ct.Prac.R. 10.9 JON HUSTED, ET AL., EVIDENCE OF RESPONDENT Respondents. CUYAHOGA COUNTY BOARD OF ELECTIONS

Pursuant to S.Ct. Prac. R. 10.9(A)(2)(b), Respondent Cuyahoga County Board of

Elections respectfully submits the following evidence:

1. Affidavit of Eben O. McNair, IV;

2. Affidavit of Patrick McDonald.

Respectfully submitted,

WILLIAM D. MASON, Prosecuting Attorney of Cuyahoga County

By: CHARLES E. HANNAN'^* (0037153) Assistant Prosecuting Attorney * Counsel of Record The Justice Center, Courts Tower, 8tr' Floor 1200 Ontario Street Cleveland, Ohio 44113 Tel: (216) 443-7758/Fax: (216) 443-7602 channauLdcuyahogacoimty.us

Counsel for Respondent Cuyahoga County Board of Elections

I PROOF OF SERVICE

Pursuant to S.Ct.Prac.R. 10.9(C), a true copy of the foregoing Evidence of Respondent Cuyahoga County Board of Elections was served this S"S` day of September 2012 by e- mail upon:

David J. Matty Sergio DiGeronimo Suite 216 Shana A. Samson 8748 Brecksville Road, Rademaker, Matty, Henrikson Brecksville, Ohio 44141 & Greve LLC 55 Public Square, Suite 1775 Cleveland, Ohio 44113

Counselfor Relator City ofBrecksville

Michael DeWine, Ohio Attorney General Michael J. Schuler Aaron D. Epstein Damian W. Sikora Assistant Attorneys General Constitutional Offices Section 30 East Broad Street, 16"' Floor Columbus, Ohio 43215

Counsel for Respondent Ohio Secretary ofState Jon Husted

CHARLES E. HANNAN * Assistant Prosecuting Attorney * Counsel of Record

2 STATE OF OHIO SS. AFFIDAVIT COUNTY OF CUYAHOGA

I, EBEN O. McNAIR; IV, being first duly sworn, depose and state the following:

1. I am a member of the Cuyahoga County Board of Elections and I have personal knowledge of the facts and circumstances stated herein.

2. Members and officers of the Brecksville-Broadview Heights Democratic Club and other activists drafted and gathered signatures for the "Brecksville Initiative In Support Of Movement

To Amend The U.S. Constitution To Establish That Corporations Are Not People And Money Is

Not Speech" (hereafter "the Initiative").

3. I am the Democratic City Leader of Brecksville and am a member of the Breoksville-

Broadview Heights Democratic Club and therefore know many of the individuals who were involved in drafting and gathering signatures for the Initiative.

4. I received many e-mails from individuals who were involved in drafting and gathering signatures for the Initiative while that process was underway.

5. I took no active role and did not substantively participate in the process of drafting and gathering signatures for the Initiative.

6. At one point, I offered to review the draft of the Initiative but ultimately did not do so.

7. I was not even aware of the Initiative language until I reviewed it in the context of

considering the City of Breclcsville's protest correspondence that was received by the Cuyahoga

County Board of Elections on August 9, 2012.

8. On or about August 14, 2012, the Cuyahoga County Board of Elections scheduled a

hearing on the City of Brecksville's protest to be held on August 28, 2012. 9. Because I was familiar with some of the individuals who were involved in drafting and/or gathering signatures for the Initiative and out of an abundance of caution, I telephoned Gretchen

A. Quinn, Elections Counsel, Office of Ohio Secretary of State Jon Husted, one to two weeks prior to the August 28, 2012 hearing to discuss whether in the Secretary of State's view there existed any conflict of interest that would warrant my recusal from considering the City of

Brecksville's protest.

10. I separately contacted the Ohio Ethics Commission to inquire as to whether in its view there existed any conflict of interest that would warrant my recusal from considering the City of

Brecksville's protest. I spoke with Staff Advisory Attorney Karen R. King and on or about

August 20, 2012, she also sent me an e-mail indicating that she was unable to find any

Commission precedent that directly addressed the issue I raised in my telephone call with her.

She additionally sent me three (3) prior Ohio Ethics Commission opinions. Attached as Exhibit

1 is Ms. King's e-mail to me, with the three (3) opinions she provided to me, each one of which I read.

11. At Ms. King's suggestion, I additionally spoke with the Director of the Ohio Elections

Commission, Philip C. Richter, who told me that he believed that his Commission did not have jurisdiction over my issue, but that he saw no problem from his perspective that would warrant

my recusal from considering the City of Brecksville's protest.

12. I also reviewed the matter with the Cuyahoga County Board of Elections counsel, Reno

Oradini, Esq., and he did not believe needed to recuse myself.

13. On August 27, 2012, at 11:18 a.m., I sent Secretary of State Elections Counsel Gretchen

A. Quinn an e-mail to follow up on my earlier telephone call to her. A copy of my e-mail to Ms.

Quinn is attached hereto as Exhibit 2.

2 14. In response to an August 27, 2012 voice-mail message left for me by Ms. Quinn, I sent her an e-mail at 3:09 p.m. that set forth the facts recited in paragraphs 1 through 12 of this

Affidavit. A copy of my e-mail to Ms. Quinn is attached hereto as Exhibit 3, p. 2.

15. On August 27, 2012, at 3:11 p.m., I forwarded by e-mail to Ms. Quinn the August 20,

2012 e-mail that I had received previously from Ohio Ethics Commission Staff Advisory

Attorney Karen R. King. A copy of my forwarding e-mail to Ms. Quinn is attached hereto as

Exhibit 4.

16. On August 28, 2012 at 1:47 p.m., Ms. Quinn responded to my e-mail by indicating that

the office of the Secretary of State did not see anything that would warrant my recusal from

considering the City of Brecksville's protest, adding that if I were aware of facts that I believed

had the likelihood of creating an appearance of impropriety or otherwise calling into question the

integrity of the electoral process, then I should recuse myself from hearing the protest. See

Exhibit 3, p. 1.

17. I do not believe that my familiarity with some of the individuals who were involved in

drafting and/or gathering signatures for the Initiative would bias my consideration of the protest

submitted by the City of Brecksville.

18. Prior to the public discussion of the City of Brecksville's protest at the August 28, 2012

meeting, I fully disclosed my relationship with the petitioners for the Brecksville issue; my

receipt of e-mail correspondence regarding the Petition prior to the hearing; my lack of

substantive participation in the process; and, following my consultations with the offices of the

Ohio Secretary of State, the Ohio Ethics Commission, and the Ohio Elections Commission, my

belief that I had no conflict of interest that would warrant my recusal from considering the City

of Brecksville's protest.

3 FURTHER AFFIANT SAYETH NAUGHT.

4 & EBEN O. McNAIR, IV

SWORN TO AND SUBSCRIBED before me and in my presence this day of September 2012.

MELISSIA S. LOWERY NOTARY PUBLIC ^ STATE OF OHIO Recorded in Cuyahoga County My commiesion expires Dec. 9, 2015

4 Melissia S. LoweM

From: Eben O. McNair Sent: Monday, August 20, 2012 10:48 PM To: King, Karen Cc: Melissia S. Lowery Subject: RE: Adv. Ops. issued to Wagar; Cunningham; and Gates

Karen- Thank you for your prompt assistance. Eben McNair

From: King, Karen [mailto: Karen Kino@ethics state.oh.usl Sent: Monday, August 20, 2012 5:17 PM To: Eben O. McNair Subject: Adv. Ops. issued to Wagar; Cunningham; and Gates

Dear Mr. McNair:

Thank you for your phone call. The Ethics Commission policy is for staff to provide general information about the Ethics Law and Commission precedent whenever possible. In accordance with that policy, I have attached regarding the Ethics Law. Unfortunately, I was Commission publications that may provide you with general information unable to find any Commission precedent that directly addresses the issue you raised in your phone call.

You should also contact the Ohio Secretary of State's Office (and/or the Ohio Elections Commission) to determine if there are any other laws or rules that apply to you in the situation that you described.

This e-mail is NOT an advisory opinion and does not reach any conclusions as to the specific facts you described. An advisory opinion of the Commission is a written document based on a written request disclosing the relevant facts. The Commission staff CANNOT provide verbal or written advisory opinions in response to questions posed on the telephone or in an e-mail, questions involving the actions of someone other than the requester, or questions involving events that have already occurred.

I hope this information is helpful to you. Please feel free to visit our web-site at www.ethics.ohio.gov if you need further information.

Sincerely,

Karen R. King Staff Advisory Attorney Ohio Ethics Commission William Green Building 30 West Spring Street, L3 Columbus, Ohio 43215-2256 Telephone: (614) 466-7090 Fax: (614) 466-8368 karen king ethics.state.oh. www.ethics.ohio.gov OHIO ETHICS COMMISSION

a East Long Street,l0o' Floor Merom Brachman, Chair Columbus, Ohio 43215 Sarah M. Brown, Vtce Chair Telephonec (614) 466-7090 Fax: (614) 466-8368 IRMFIOV Web site: www.ethics.ohio.gov David E. Freel, ExecuttveDirector

December 20, 2004

Rita Jean Wagar Leader Publications 1815 West Market Street, Suite 300 Akron, Ohio 44313

Dear Ms, Wagar:

You requested an advisory opinion from the Ohio Bthics Commission in 2002. i Earlier this year, I called you about your advisory opinion request, In that telephone conversation, I apologized for the delay in response due to the Commission's limited resources. I explained that the Ethics Commission is in the process of closing older advisory opinion requests and asked whether you needed a response to your request. You stated that you do still need general guidance related to the issue you raised in your letter.

You have explained that, in a primary election, two candidates for county commissioner both had family members who were affiliated with the county board of elections. The spouse of one candidate is the director of the county board of elections. The father of another candidate is a floating precinct worker. You have asked why the director was allowed to continue to perform her job-related duties while her spouse was a candidate, while the father of the other candidate was not permitted to work in any precinct. Generally, the Ohio Ethics Law does not govern the internal operations of the county boards of elections. Rather, those entities are governed by Ohio Revised Code provisions set forth in Title 35., and by the Ohio Secretary of State's Office, The decisions of a local county board to decline to hire a particular individual as a poll worker because his family member is a candidate is not required by the Ethics Law; however, it is also not prohibited by the Ethics law, Because of the immediate contact between poll workers and voters, there may be provisions in the Revised Code or Administrative Code that limit or prohibit a person from serving as a poll worker if a family member is a candidate on the ballot. These provisions, if they exist, are not within the jurisdiction of the Bthics Commission.

Serving Ohio Since 1974 Rita Jean Wagar December 20, 2004 Page 2

The Ethics Law does not absolutely prohibit a person from serving as a member or employee of a county board of elections, or poll worker, because the person has a family member who is running for office in the same county. However, the conflict of interest law, set forth in R.C. 102.03(D) and (E), would prohibit the board member, board employee, or poll worker, from using his public position, in any way, to secure a benefit for a family member who is a candidate.

R.C. 102.03(D) prohibits a "public official or employee," which would include a member or employee of a county board of elections, and may include a poll worker, from using his public position to secure anything of value for a family member. R.C. 102.03(E) prohibits a prohibits a public offrcial or employee from soliciting anything of value for a family member. "Anything of value" would include the compensation a person would receive if he were elected to a public position. Therefore, R.C. 102.03(D) and (E) prohibits a public official or employee from using the authority or influence of his office, and from soliciting, any benefit for his family members, including a spouse or child. The official or employee is required to remove himself from any participation, formally or informally, in any matters that defmitely and directly affect the interests of a family member. Therefore, if an elections official has a family member who is a candidate for ofPice, the official must not participate in any elections-related matters that defmitely and directly affect his family member's interests.

The law does not prohibit the elections official from participating in matters that affect all candidates, in the same manner, including his family member. However, the law prohibits the official from participating in matters in which his family member, as a candidate has an individual interest. For example, if a recount is required for the race in which the official's family member is a candidate, the official would be prohibited from participating in the recount. The recount would have to be handled by officials or employees who are superior to the official, such as the board of elections. I hope this information is helpful to you. I have enclosed a copy of an informal advisory opinion the Commission issued in 1991 to the Director of the Richland County Board of Elections, when his spouse was considering running for office in the county. This opinion may give you general information about the Ethics Law as it applies to situations of the kind you have described. I am closing your request for an advisory opinion with this letter. This letter is limited to questions arising under Chapter 102., and Sections 2921.42 and 2921.43, of the Revised Code and does not purport to interpret other laws or rules. The letter does not reach any conclusions as to the specific facts in the situation that you have set forth. Rita Jean Wagar December 20, 2004 Page 3

The Commission regrets the delay in contacting you and apologizes for not responding more quickly to your request. As a result of changes in the way the advisory opinion process is managed, the Commission should be able to answer incoming requests more quickly despite reduced resources and staff, We hope to have the opportunity to assist you in the fnture. If you ever need advice about the appflcation of the Ethics Law to yourself, please do not hesitate to contact me personally. Sincerely, A neiufer A. Hardin Chief Advisory Attomey

Enclosure: Informal Advisory Opinion to Jeff Wilkinson (August 30, 1991) OHIO THICS COMMISSION

8 East Long Street,l0th Floor Merom Brachman, Chair Colunibus, Ohio 43215 Sarah M. Brown, Vice Chair Telephone; (614) 466-7090 Fax: (614) 466-8368 Web site: www.ethics.oluo.gov David E. Freel, Executive Director

May 11, 2004

Roger S. Gates Assistant Prosecuting Attorney Butler County Prosecutor's Office Government Services Center 1l0' Floor Hamilton, Ohio 45012-0515

Dear Mr. Gates:

In a letter reccived by the Ohio Ethics Connnission on April 19, 2004, you have asked whether the Ohio Ethics Law and related statntes prohibit two members of the Butler County Board of Elections (Board) from participating in a matter before the Board that involves an independent candidate for Sheriff.

Brief A nswer As explained more fully below, based on the facts you have set forth, the Ethics Law does not prohibit the two members of the Butler County Board of Elections from participating in the decision on a matter before the Board involving an independent candidate for Sheriff.

Facts By way of history, county boards of elections are composed of four members appointed by the Secretary of State. R.C. 3501.06. Two members of the board are persons from the political party that cast the highest number of votes for the office of Governor in the last election, and the other two members are persons from the political party that case the next highest number of votes for the office of Governor in the last election. Id. All vacancies and all appointments to new terms on the board shall be made from the political party to which the vacating or outgoing member belonged. Id. In Butler County, two of the members of the Board are Republicans and two are Democrats.

Serving Ohio Since 1974 Roger S. Gates May 11, 2004 Page 2 In your request, you have explained that Robert Patton has filed petitions as an independent candidate for Butler County Sheriff. The Board must consider whether it should certify to the ballot the candidacy of Mr. Patton. Rick Jones had earlier filed petitions and.was nominated in the Republican primary in March. Dale Richter had earlier filed petitions: and was nominated in the Democratic primary in March. The issue before the Board is whether Mr. Patton has met all of the eligibility requirements to run for the position of Sheriff.

You have explained that an attorney who is representing Mr. Patton has argued that the two Republican members of the Board should recuse themselves from consideration of the matter involving Mr. Patton because of a conflict of interest. The attorney has asserted that, because the two members were listed as members of a host coannittee on invitations for a fundraiser for the Republican candidate, their personal financial interests could be affected if Mr. Patton's candidacy is certified to the ballot. The attorney further asserted that whether the Republican candidate was opposed in the general election would have a defmite and direct financial impact on those persons who intended to financially support his candidacy.

General Conflicts of Interest-R C 102.03(D) and (E)

Your question raises the application of the general conflicts of interest provisions of the Ethics Law, set forth in Chapter 102., Revised Code Sections 102.03(D) and (E), which read:

(D) No public official or employee shall use or authorize the use of the authority or influence of office or employment to secure anything of value or the promise or offer of anything of value that is of such a character as to manifest a substantial and improper influence upon the public official or employee with respect to that person's duties.

(B) No public official or employee shall solicit or accept anything of value that is of such a character as to manifest a substantial and improper influence upon the public official or employee with respect to that person's duties. A"public official or employee" is defined for purposes of R.C. 102.03 to include any person who is elected or appointed to any commission of a county, including a member of a county board of elections. R.C. 102.01(B) and (C); Ohio Ethics Commission Advisory Opinion No. 93-004. A member of the Butler County Board of Elections is a public official for purposes of R.C. 102.03(D) and (E). Adv. Op. No. 93-004. The term "anything of value" is defined for purposes of R.C. 102.03 in R.C. 1.03 to inelude money and every other thing of value. R.C. 102.01(G). A regulatory decision by a 93 016.y is a thing of public agency es of R.C. 102.03(D) and (E ^Adu. Ops. interested value for purpo Roger S. Gates May 11, 2004 Page 3 R.C. 102.03(D) prohibits a public official or employee from using his public position, formally or informally, to secure anything of value, for himself or anyone else, if the thing of value is of such a character as to manifest a substantial and improper influence upon him with respect to his duties. Adv. Ops. No. 87-004 and 88-004. Similarly, R.C. 102.03(E) prohibits a public official or employee from soliciting anything of value, for himself or anyone else, if the thing of value is of such a character as to manifest a substantial and improper influence upon him with respect to his duties.

It must be stressed, however, that in order for R.C. 102.03(D) and (E) to prohibit a public official from participating in a matter, the matter must result in a definite and direct pecuniary benefit or detriment and that pecuniary benefit or detriment must be of such a character as to manifest a substantial and improper influence upon him with respect to his duties. Adv. Op. No. 91-006 and 93-016. Furthermore, the Ethics Commission has cautioned that each case must be examined on its own facts in order to determine whether a public official or employee is prohibited from participating in tha matter. Adv. Op. No. 90-004.

The standard in judging whether a public official may participate in a matter is whether the matter would provide such a definite and direct pecuniary benefit or detriment to the interests of the official, or a party with whom he has a close family, economic, or business connection, that these private interests could impair his independence of judgment or unbiased discretion in making his official decisions. Adv. Ops. No. 88-004 and 88-005. In Advisory Opinion; No. 85-006, the Oluo Ethics Commission stated:

[I]t is not sufficient merely to identify some indirect or indefmite benefit ahat a public official may accrue from the performance of an official act.. A public official should not be precluded from participating in such decisions that he was duly elected or appointed to make, unless he would secure a particular benefit for himself that creates a conflict of interest.

Where the possibility of benefit or detriment that a public official or employee may experience as the result of a decision on a matter is remote and speculative, uncertain, or intangible, the Ethics Law does not prohibit the official or employee from participating in the decision. Adv. Op. No. 91-006 and 93-016.

In the situation you have described, the two Board members participated in a fundraising activity for one candidate for sheriff. The question is whether R.C. 102,03(D) and (E) prohibit the Board members from participating in the decision to certify to the ballot the candidacy of a third individual, because of their past support of one of the two eurrent candidates. The posited argument against their participation is that their personal financial interests would be definitely and directly affected if the third person's candidacy is certified to the ballot. The assertion is that, if the Republican candidate is opposed in the general election, that opposition would have a definite and direct financial impact on the persons who intended to financially support his candidacy. Roger S. Gates May 11, 2004 Page 4

In the facts you have described, there are several elements that estabflsh the speculative nature of any benefit or detriment that the Board members may experience as a result of the Board's decision. First, while the Board members may have financially supported the Republican candidate for sheriff in the past, they may choose not to offer future financial support for his candidacy. Even if, as asserted by the attomey for the candidate, they do "intend" to make campaign contributions, they are not required to do so. asserted that the supporters of a caiididate who runs unoppoaed Further, while it may be need not contribute to an active campaign for that candidate, the candidate in this question is not third candidate for running unopposed. The question before the Board is the addition of a sheriff, not a second candidate. The financial impact of the addition of a third candidate on individuals who may plan to support one of the other two candidates is even more speculative.

Therefore, in the situation you have described, R.C. 102.03(D) and (E) do not prohibit the Board members from participating in the decision on a matter before the Board involving the third candidate for Sheriff, because any financial impact of the decision on those Board members is remote and speculative. This staff advisory opinion represents the views of the undersigned, based on the facts presented and the precedent of the Commission. It is limited to questions arising under Chapter 102, and Sections 2921.42 and 2921.43 of the Revised Code, and does not purport to interpret other laws or rules. If you have any further questions or desire additional information, please contact this Office again. Sincerely,

Jennifer A. Hardin Chief Advisory Attorney

t OHIO ETHICS COMMISSION

8 East Long Street,10o' Floor Merom Brachman, Chair Columbus, Ohio 43215 , Sarah M. Brown, Vice Chair N Telephone: (614) 466-7090 Fax:(614) 466-8368 Web site: www.etbics.ohlo.gov David E. Freel, Executive Director

July 26, 2004

Pierce E. Cunningham 312 Walnut Street, Suite 3250 Cincinnati, OH 45202

Dear Mr. Cunningham:

In your letter received by the Ohio Ethics Commission on June 23, 2004 you requested an advisory opinion for your client, Todd Portune, who serves as a member of the Board of County Commissioners (Board) of Hamilton County. You requested the opinion for your client based upon the specific facts and circumstances that he presented to the Commission in a letter that you attached. Your client wrote his letter to the Conunission after communicating with another attorney, John Gilligan, who had contacted the Commission and received general guidance on related issues. The issue, in the instant situation, is whether the Ohio Etbics Law and related statutes prohibit your client from voting on a resolution before the Board. The resolution will place before the county voters a proposal to enact a replacement levy to provide continued public funding of a health rehabilitation facility from which your client receives outpatient services and funding for three other unrelated county projects.

Brief Answer As explained below, given the facts that the County Commissioner has presented, R.C. 102.03(D) and (E) do not prohibit him from voting to place a proposal to enact a replacement levy on the ballot for the citizens to approve or disapprove in an election that will provide continue public funding of a health rehabilitation facility from which he receives outpatient services.

Facts The County formally operated the Drake Center (Center) as the Drake Memorial Hospital pursuant to R.C. Chapter 339. In 1989, the Center became a private non-profit corporation that is affiliated with the University of Cincinnati. The Center receives operating revenue from a property tax levy passed in 1994. Your client states that he was not a county commissioner in 1994.

Serving Ohio Since 1974 Pierce E. Cunningham July 26, 2004 Page 2

Your client states that he was a patient at the Center on two occasions for the purpose of receiving convalescent and recovery care. Your client states that he eLVrent receives outpatient physical therapy from the Center. Your client states that the majority of his medical expenses are covered by medical insurance that requires patient co-pays. Your client states that he makes regular payments to the Center for his share of the outpatient therapy and that he currently owes the Center $105.00 according to his most recent bill.

The Center is seeking to place a levy before the county voters to replace the current levy that will expire at the end of the year. Your client states that, in addition to providing revenue for the Center, the levy will also fund three unrelated county projects.

Thin^s of Value -It C 102.03(D) and E Sohcitms and Securing Improuer Your attention is directed to Divisions (D) and (E) of R.C. 102,03, which reads:

(E) No public official or employee shall solicit or accept anything of value that is of such a character as to manifest a substantial and improper influence upon the public official or employee with respect to that person's duties.

public official or employae" is defined for purposes of R.C. 102.03 to include any A " parson who is elected or appointed to an office of a political subdivision. R.C. 102.01(B) and (C). An elected county official is a public official for purposes of R.C. 102.03(D) and (E). Ohio Ethics Commission Advisory Opinion No. 88-003.

The term "anything of value" is defined for purposes of R.C. 102.03 in R.C. 1.03 to include money and every other thing of value. R.C. 102.01(G). A definite and direct beneficial or detrimental economic impact resulting from a decision by a public entity is a thing of value for purposes of R.C. 102.03. Adv. Ops. No. 85-012, 90-002, and 90-012. The funding that the Center would receive if the county voters approve the tax levy falls within the definition of "anything of value." R.C. 102.03(D) prohibits a public official or employee from participating in any matter, or securing a thing of value, where the official would have an inherent conflict of interest that would manifest substantial and improper influence upon him withr^bp^st a to decisions and responsibilities. Adv. Op. No. 91-004. R.C. 102.03(E) pro public or employee from merely soliciting or' receiving an improper thing of value and does not require that he use the authority or influence of his position to secure it. Adv. Ops. No. 86-011 and 89-006. Pierce E. Cnnningham 7uly 26, 2004 Page 3

The prohibitions imposed by R.C. 102.03(D) and (E) serve the public interest in effective, objective, and impartial government by preventing the creation of a situation that may impair the objectivity and independence of judgment of a public official or employee, and, therefore, the effectiveness of the political subdivision he serves. Adv. Ops. No. 89-014 and 90-002. The application of R.C. 102.03(D) and (E) is dependent upon the facts and circumstances of each individual situation. Adv. Ops. No. 87-007 and 89-003.

Definite and Direct Benefit For purposes of R.C. 102.03(D) and (E), the thing of value that is secured by the action of the public official must be definite and direct. When the ihing of value, in a particular situation, is the econoniic impact that would occur from a decision of a public entity, the Commission has beld that the prohibition of R.C. 102.03(D) and (E) do not apply if the economic impact is speculative and indirect rather than definite and direct. Adv. Op. No. 93-016.

In advisory Opinion No. 93-016, the Ethics Commission addressed whether a member of a county district board of health, who had an ownership interest in a business that would be subject to a public smoking regulation imposed by his board, could participate in the consideration of the regulation. In that opinion the commission held that R.C. 102.03(D) does not prohibit the board mamber from participating in the consideration or enactment of the regulation because it was mexely speculative to assert that the financial interests of his business would be affected either positively or negatively by the enactment of the regulation. The Commission stated: [A] decision of the board to regulate smoking will not definitely and directly result in the loss of revenue for the [health commissioners' business]. Any diminufion of revenue will depend upon the individual behavior of large numbers of persons who smoke tobacco. Therefore, it is merely speculative to assert that the businesses in which the board members have an ownership interest would suffer a pecuniary detriment if the board enacted smoking regulations.

The instant situation, although clearly involving a different subject matter, is akin to the one addressed in Advisory Opinion No. 93-016. It is undisputed that tax-derived revenue provides a definite and direct pecuniary benefit to the entity that receives it. The revenue to the Center that would result from the voter's passage of the proposed tax increase would aid in the continued operation of the Center. However, the action of the board of county commissioners, in this situation, will not continue the current levy and provide the revenue to the Center, Rather the action by the board of county commissioners will result in the tax levy proposal being placed before all county voters for their decision to either approve or disapprove continued public funding for the Center. The Center's continued receipt of public funds, as stated in the Commission's prior opinion, "depends upon the individual behavior of large numbers of persons"-in the instant situation, the voters of Hamilton County. Pierce E. Cunningham July 26, 2004 Page 4

Therefore, given the facts and circumstances that your client has presented to the Conunission, it is speculative to assert that the action of the board of county commissioners to place the proposed levy on the ballot will result in a definite and direct benefit to the Center.

Ordinary Customer Relationship Your client has stated that he currently receives outpatient services from the Center. R.C. 102.03(D) and (E) prohibit a public official or employee from soliciting, accepting, or using the authority or influence of his public position to secure a thing of value that would have a direct and definite benefit upon an entity with which he has a close family or financial relationship, such as a business associate, because the relationship could impair the official's independence of judgment on behalf of the public. Adv. Ops. No. 92-008 and 93-001.

When examining potential conflicts of interest, the Ethics Connnission has stated that a public official must consider all facts and circumstances of the particular situation in order to determine whether an actual conflict of interest exists, and that no one factor is determinative, Adv. Op. No. 91-004. The issue becomes whether the relationship between your client and the Center is one that could present a conflict of interest for the County Conunissioner when he is faced with making a decision that could possibly affect the financial interests of the Center.

In Advisory Opinion No. 98-001, the Ethics Conunission determined that a public official who has an "ordinary customer relationship" with a bank does not, in and of itself, mean that the customer relationship will have a definite and direct influence upon the offioial with respect to matters that affect the bank. The Commission explained in Advisory Opinion No. 98-001:

Public officials and employees, like most other citizens in today's society, invariably must have consumer relationships with financial institutions. These relations will be of varying kinds, and will involve varying amounts of money and obligations. 5ome, but not all, of these relationships may be of such a character as to improperly influence a public official with respect to decisions the official must make about the bank. Financial relationships that are essentiallv the same as those the bank retains with other customers, and do not, under their particular facts and circumstances, suggest the possibility of discretionary favoritism by the financial institution in favor of a public official or employee should not be surnmarily prohibited bv conflict of interest provisions. ,.. Factors that indicate that a person has an "ordinary customer" relationship with a bank are: (1) that the relationship is subject to fixed terms; and (2) that the same terms are available to all other eligible bank customers. (Emphasis added.)

In the instant situation, your alient has not provided any information that would suggest that his relationship with the Center as an outpatient who is receiving physical therapy is anything but that of an ordinary customer or patient. The fact that your client's expenses for outpatient services are covered by hospitalization insurance is a strong indication that the cost and terms of medical services have been established contractually as usual, customary, and reasonable between the Center and the insurance company. Pierce E. Cunningham July 26, 2004 Page 5

Conclusion As explained above, given the facts that the County Commissioner has presented, R.C. 102.03(D) and (E) do not prohibit him from voting to place a proposal to enact a replacement levy on the ballot for the citizens to approve or disapprove in an election that will provide continued public funding of a health rehabilitation facility from which he receives outpatient services. This staff advisory opinion represents the views of the undersigned, based on the facts presented and the precedent of the Ethics Comrsrission. It is limited to questions arising under Chapter 102. and Sections 2921.42 and 2921.43 of the Revised Code, and does purport to inteLpret other laws or rules. If you have any further questions or desire additional information, please contact this Office again.

Very truly yours,

John Rawski Staff Attorney Melissia S. LoweTy

From: Eben O. McNair Sent: Monday, August 27, 2012 11:18 AM To: GQUINN@oh iosecretaryofstate.gov Cc: Melissia S. Lowery Subject: Response to earlier call

Gretchen- Following-up on the call I left a week or two ago regarding a potential conflict I might have at our meeting tomorrow night regarding a protest hearing on an initiative petition in the City of Brecksville. Please call me sometime today or tomorrow morning to discuss. My cell is 216.280.5500. Thanks,

Eben O. ("Sandy") McNair, IV Schwarzwald McNair & Fusco LLP 616 Penton Media Bldg. 1300 East Ninth St. Cleveland, Ohio 44114-1503 216-566-1600 ext. 138 216-566-1814 (fax) emcnairasmcnlaw com

NOTICE: The information contained in this e-mail and any attachments may be privileged and confidential and protected from disclosure. If you are not the intended recipient, or the person responsible for delivering this message to the intended recipient, you are hereby notified that any distribution, copying or other use of this communication is strictly prohibited. If you received this electronic mail transmission in error, please delete it and any attachments from your system without copying, forwarding or distributing it, any attachments, or any information therein, and notify the sender of the error by reply e-mail, or by calling Schwarzwald McNair & Fusco LLP at (216) 566-1600(collect), so that we may take appropriate action. IRS CIRCULAR 230 NOTICE: To ensure compliance with requirements imposed by the IRS, this notice is to inform you that any tax advice contained in this communication (including any attachments) was not intended or written to be used, and cannot be used, for the purpose of (i) avoiding tax-related penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.

1 Melissia S. Lowery

From: Eben O. McNair Sent: Tuesday, August 28, 2012 3:07 PM To: Quinn, Gretchen Cc: Melissia S. Lowery RE: Cuyahoga BOE: Protest of municipal ballot issue initiated by petition (City of Brecksville) Subject:

Gretchen- Thanks, Sandy ___n_..m.__.__.n.w_.__.... __...w__.__..w....._.....,____....__, __....,_.._.__..,.._.._.,n___...... _.___._.._..._....._._..w.__,___._._. From: Quinn, Gretchen rmailto•[email protected] Sent: Tuesday, August 28, 2012 1:47 PM To: Eben O. McNair Cc: Melissia S. Lowery; Christopher, Jack; Schuster, Betsy; Damschroder, Matthew; [email protected]; Pat McDonald Subject: Cuyahoga BOE: Protest of municipal ballot issue initiated by petition (City of Brecksville)

Sandy, based on the information you provided, this office does not see anything that requires you to step aside from hearing the protest of the City of Brecksville ballot issue that was initiated by petition. However, if you are aware of facts that you believe have the likelihood of creating an appearance of impropriety or otherwise calling into question the integrity of the electoral process, you should recuse yourself from the hearing the protest.

Sincerely,

- Gretchen A. Quinn, Elections Counsel Office of Ohio Secretary of State Jon Husted 180 East Broad Street - 15th Floor Columbus, OH 43215 Tel. (614) 466-2585

. ^....___ _ .._^ ..._._._._m... _ __...^ ____._..m.-.__._....__...... ___...a_ _._..r.._____..__..___..r_.__. From: Eben 0. McNair fmailto:[email protected] Sent: Monday, August 27, 2012 11:20 PM To: Quinn, Gretchen Cc: Melissia S. Lowery Subject: FW: Follow-up

Gretchen- There is also a very similar, if not identical, issue for our review in the Village of Newburgh Heights, about which I was unaware until staff brought it to the Board's attention and is on the agenda for tomorrow's meeting. Thanks, Sandy

From: Quinn, Gretchen [mailto:GOUINN(fthiosecretaryofstate govl Sent: Monday, August 27, 2012 3:11 PM To: Eben 0. McNair Subject: RE: Follow-up

Thank you, Sandy. I will forward this the appropriate staff members for review and response.

1 - Gretchen A. Quinn, Elections Counsel Office of Ohio Secretary of State Jon Husted 180 East Broad Street - 15th Floor Columbus, OH 43215 Tel. (614) 466-2585

From: Eben O. McNair fmailto:emcnair@smcnlaw coml Sent: Monday, August 27, 2012 3:09 PM To: Quinn, Gretchen Cc: Melissia S. Lowery Subject: Follow-up

Gretchen- I am responding to your voice mail. In brief, the initiative in Brecksville principally was drafted and signatures gathered by members and officers of the Brecksville-Broadview Heights Democratic Club and some other activists. I am the Democratic City Leader of Brecksville, and a member of the Club. In those capacities, I received many e-mails during this process from these individuals. At one point, I offered to review the draft initiative, but ultimately, did not. I took no active role in the process and was not even aware of the initiative language until I reviewed it in the context of the protest that has been filed. I know well the key people that support the initiative, but I do not believe those relationships would bias my consideration of the issue. I have checked with and reviewed the three opinions provided to me my the Ohio Ethics Commission, and none of those apply or the rationales apply to my case. I will forward that e- mail to you. At that lawyer's suggestion, I also spoke with the Director of the Ohio Elections Commission and he saw no problem from his perspective. I hope this has been helpful, please call me if you need any additional information. Thanks,

Eben O. ("Sandy") McNair, IV Schwarzwald McNair & Fusco LLP 616 Penton Media Bldg. 1300 East Ninth St. Cleveland, Ohio 44114-1503 216-566-1600 ext. 138 216-566-1814 (fax) emcnairasmcn law.com

NOTICE: The information contained in this e-mail and any attachments may be privileged and confidential and protected from disclosure. If you are not the intended recipient, or the person responsible for delivering this message to the intended recipient, you are hereby notified that any distribution, copying or other use of this communication is strictly prohibited. If you received this electronic mail transmission in error, please delete it and any attachments from your otify the system bhoe oeymall, forwarding or McNair & Fusco LLP at (216) 566t1600(collect)nsonthat we maydtake of the eoY reply by appropriate action. IRS CIRCULAR 230 NOTICE: To ensure compliance with requirements imposed by the IRS, this notice is to inform you that any tax advice contained in this communication (including any attachments) was not intended or written t( be e used, and cannot be used, for the purpose of (i) avoiding tax-related penalties under the Internal Revenue Code or u promoting, marketing or recommending to another party any transaction or matter addressed herein.

2 Melissia S. Lowery

From: Eben O. McNair Sent: Monday, August 27, 2012 311 PM To: [email protected] Cc: Melissia S. Lowery FW: Adv. Ops. issued to Wagar; Cunningham; and Gates Subject: Wagar 12-20-04.pdf; (07-26) Cunningham.pdf; Gates 5-11-04.pdf Attachments:

Gretchen- Per my just sent e-mail.

I forgot to note that I have also raised the issue with our Board's lawyer and he did not see a problem. Sandy

From: King, Karen [mailto, Karen King(d)ethics state.oh usl Sent: Monday, August 20, 2012 5:17 PM To: Eben O. McNair Subject: Adv. Ops. issued to Wagar; Cunningham; and Gates

Dear Mr. McNair: general information about Thank you for your phone call. The Ethics Commission policy is for staff to provide the Ethics Law and Commission precedent whenever possible. In accordance with that policy, I have attached regarding the Ethics Law. Unfortunately, I was Commission publications that may provide you with general information unable to find any Commission precedent that directly addresses the issue you raised in your phone call.

I hope this information is helpful to you. Please feel free to visit our web-site at www.ethics.ohio.gov if you need further information.

Sincerely,

Karen R. King Staff Advisory Attorney Ohio Ethics Commission William Green Building 30 West Spring Street, L3 Columbus, Ohio 43215-2256 Telephone: (614) 466-7090 Fax: (614) 466-8368 karen [email protected]. STATE OF OHIO SS. AFFIDAVIT COUNTY OF CUYAHOGA

I, PATRICK McDONALD, being first duly sworn, depose and state the following:

1. I am the Deputy Director of the Cuyahoga County Board of Elections and I have personal knowledge of the facts and circumstances stated herein.

2. Pursuant to R.C. 3509.01(B)(1), absent voter's ballots for overseas voters and absent uniformed services voters eligible to vote under the Uniformed and Overseas Citizens Absentee

Voting Act must be printed and ready for use by September 22, 2012.

3. Pursuant to R.C. 3509.01(B)(2), absent voter's ballots for all other voters who are applying to vote absent voter's ballots must be printed and ready for use by October 2, 2012.

4. In order to have ballots available for the opening of voting on October 2, 2012, the

Cuyahoga County Board of Elections must begin printing ballots for use in the City of

Brecksville no later than September 28, 2012.

5. Because of an error by the stenographic court reporter who recorded the proceedings of the August 28, 2012 meeting of the Cuyahoga County Board of Elections, the transcript of proceedings sent to the Secretary of State on September 4, 2012 reflected the statements made during the course of the public hearing on the protest but omitted the prefatory discussion that included Board Member Eben O. McNair's disclosures made just before the public discussion.

Upon discovering that omission, the Cuyahoga County Board of Elections caused that omitted portion of the transcript to be transmitted to the Ohio Secretary of State on September 12, 2012.

6. Attached hereto as Exhibit 5 is a true and accurate photocopy of the September 20, 2012 correspondence from James M. Mizanin, owner of Mizanin Reporting Services, Inc., that was received by the Cuyahoga County Board of Elections on September 21, 2012, which explains the court reporter's inadvertent omission of the first approximately four and one-half transcript pages that preceded the public discussion at the August 28, 2012 meeting of the Cuyahoga County

Board of Elections.

7. Attached hereto as Exhibit 6 is a true and accurate photocopy of the final corrected excerpt of the relevant proceedings that occurred at the August 28, 2012 meeting of the

Cuyahoga County Board of Elections that was received by the Cuyahoga County Board of

Elections on September 21, 2012.

FURTHER AFFIANT SAYETH NAUGHT.

PATRICK McDONALD

V /S rday of SWORN TO AND SUBSCRIBED before me and in my presence this September 2012.

NOTARY PUBLIC

% E RMW Pv^^^

2 pOrt,ing'so in ANGE ROAD`• PEN[ Ybi 360 DEPENDENCE;pH104413^

Se ember20,2012

Cuynhoga 1~`ounty goard Electio 2425 EuoiidAvenue G" tev e l and, Q h i d 44115

To hom av C ce

Theexcerptof#rapserip(ofproceediilBsofiheBoAr1of81oolionaMeetinBheldon Tuead3y, the 28a' day of A.Nguat 2012 Was trana,criUod in a rough dralt fonnot. Court reporter, ck^8nq târgêten, inndvcrtently onllttg+l; the Prst appcoximatety,£rûr.aNd a half paBes at ttê beginnitig,of, the issueregu?stgtl to 4e lranscrihod, ^•Thc`repDrker apoloSizesforthis omis"sioh and nowpxovidea afinal correeled eacerpt of .-prooeedings: . ' . . ..

Sinceeely

JaifiesM. iil, Rl 4ivner MEzanin Reportirig Servi 5755 Granger Road Suite 360 lndepentlence, Ohio 44131 pfli.oo (2 f¢) 241-0331 Cell (216) 214-4336

FULy,4ERVE090011RrREPORTlNG (218) 24i-0331 PAX:(216) 241+8044 viiww,mizanin:com

t E CUXA310GA COUNTY BOARD OF ELEC'1T0N5

Exce:rpt of meeting taken by Chana Margareten, a court

reporter and Natary public within and for the State of

Ohio, at the Cuyahoga County Board of Elections Office,

2925 Euclid F?venue, ClcvelahdF Ohio, On Tuesday the 28th

day of August 2012, commencing at 4:30 p:m.

SI^TjA'12 Pr, 3R22 GGCID£ APPEARANCES:

2. Board inea

3 Je^f Hastings, Chairman

4 inajo Davis Chappell, Member

5 Eben 4. {Sandy} MCNair, IV, Mczn

6 Deborab Sutherland, Member

8 Jane M. Platten, Director

9 Pat McDona.ld, Deputy Director io David Lambert, Counsel

11 Linda Steimle, Clerk of the board

'23

25 MEt_ HASTINGS: The next ma is a

to a letter dated protest. And I'm goa.Pg

Atigust 8th, filed by Mr. David J. Matty, the

Law Director for the City of Brecksville. W4

have a response to that protest dated August

20th, 2012, filed by Rose Pet!sche, for the

7 Brecksville Citizens for Transparent

Politics, a legal opa.xiion fram Mr, Lambert,

again Chief of the Civil Division for the

Cuyahoga County Prosecutors Office., and then

the initi-atiue ppetition in supp'ort of the

Movement to the amend the U.S. Constitution 12 to establish that corporatiora's are not

14 people, nd money is not speech. protest herefor

16 Newburgh He.ights also that involves some of

17 the same factixal allegations.

118 Is Mr. Matty here today?

19 MR. MATTI' : Yes.

20 MR, HASTINGS: Okay, Nlr. Ma.tty. And

21 then we have Ms. petsche here? Is

22 Ms. Petsche here? oh, okay, M.t. Petsche?

23 MR. PETSCHE: Yes.

24 MS. HASTINGS: You stand in support of

25 the ballot issue, correct? MR. PETSCHE: Yes I do.

MR. HAHTINGS: We have Mr. Lambert heze,

of course. And I knaw ttiere are inumkier af

to be heard 4 people from Brecksville that want

on that. We will let you speak to that also

point in this hearing, before we make

7 a decision at your request here. Also

Newburgh. Heights, is Mr. Luke McConville

9 here? Okay. And then we have Mr. Lambert,

10 of course. And we have some indivsduals from

11 Srecksville and Newburgh Heig'hts.

12 Mr. Elkins, is here from Newburgh Heights :and-

Mr. McCpnv.ille. Okay, So you'll be heard csxs

14 that z

15 What we'll do here, too, is we tLave a

en position from thel:aw director, as

17 well as Mr. Petsche, is providing us with a

18 written matter. We'll askyou to summarize

19 that. And then we may just kind of dovetai:l

20 into Neiaburgt? Heights, too.

21 Mr. Matty, go ahead.

22 MR. MCN'AIR; Just a couple of

23 preliminary Ynatters. First of all, I want to

24 disclose that t had a concern that I may have

25 a conflict of interest in the Brecksville case. I am the Democrat y Leader of

cksville. I know virtually all the peczpls

3 that are involved in this initiative. I got

4 many of their e-mai,ls, internal e-mails while

this was going !sn. I did not substantively

6 partacipate in the process. Indeecl, the

first time I actually read the initiative was

when I received it from Mr. Matty.

I, have conferrF the Ohio Electians

(;ommis:sion, the Ohio Ethics Commissi.on and

Gretcheii Quinn from the Secretary of State's

office. My view is I don't have a conflict, 12 I think they agreed with that assessme)at.

14 Mr. Matty; I just want to let you know tha:t,

:, in case you want to ask of me any

questions or you want to raise any concerns

17 about this. MR. MATTY: Mr McNair, I have no 1$ questions of you. I do have a concern about

that, but I thlnk that issue would be better

21 handled by the Court, if we must p'roaeed

22 there, if you are not going to recuse

23 yourself today.

24 MR. MCNAS'R: I am not, because

25 notwithstanding my relationship with all of thc?se people, I believe that I can look at

2 the facts and circumstances in the law and

render an impar;tial and fair decision

er,

5 MR. HASTINGS: Thank you, Thank you for

disclosure, Mr. McNair. I don't have any

issues with you participating.

S9R. MCNAIR: If I am participating, then

I would move to release the two legal

10 opinions, with respect to this matter.

11 Mi2. HASTINGS: Thank you. I'll second

12 that motion ancl hearing any comments or

questions about that.

19 MS. CHAPVELL: I`ll abstain, because I

15 don't want to object to you guys.

MR. HAS'PINGS, You could.

17 MS. CHAPPELL: I want to note continuing

18 objection to the release of any waiver of the

19 attorney!'client privilege, and tho release of

20 opi.nions ofcounsel.

21 MR. HASTINGS: Thank you. Any other

22 questions or comments? Dave, do you have any

23 objectiQla, your office, or you?

24 MR. LAMBER'Iz No, I don't believe it's

25 your decision, not mine. I believe I should defer to you on this.

MR. HASTINGS: Thank you. Any other

questions or comments? Hearing none, all

4 3e in favor of the mo`Cion signify by

saying aye.

6 MR. MCNAIR: Aye.

MI2. HASTTNGS: Aye.

MS. SC7THERLAND: Aye.

MR. HASTINGS: Opposed?

MS. CHAPPELL: Oppose.

MR. HASTINGS: Thank you, Ms. Chappell,

12 the opinion will be released. xavs.'ng said

13 that. Mr. Matty, you want to give us a brief

14 mary.

15 MR. MATTY: Thank you, Mr. Chairman. My

16 name is Dave Matty. I'm the Director of Law

17 for the City of Brecksville. With me this

evening is my Assistant Law Directur, Sergio

Dieronimo, who has participated in this

20 protest with me.

21 Mr. Chairman, and Board members, on

22 August 7th of this year when the petition had

23 been filed with the City of Brecksville, the

24 City council, by motion at its August 7th

25 meeting, unanimously passed a motion t 8

this prcitest and instructed me to prepare the

test which is before you.

The City of Srecksville, who I am

representing, the Mayor and the City Councsl, 4

is respectfully requesting that this Board,

pursuant to 3501.11(A) and 35)01.39(A)(2),

7 that this 'Board find that the initiative

petition, andZ will read the title, "The

Brecksville Initiative in Support of the

Movement to Amend the U.S. Constittztion to 10

establish thatcorporations are not people,

12 and money is not speech." It is the City of

13 33recksvzlle's position that that is not valid

ient under Ohio law, and therefore 14 . should not be placed on the November 6, 2012

ballot.

17 Specifically, this topic is not within the City of Srecksville's local, and I do 18

19 stress local qdv'ernment authority as limited 20 by the Ohio Coristituti.on in Article 2 Section

21 1(E), by which initiative and referendum

22 powers are xeserved to the people of

23 Brecksville on all questions which Firecksville may, now or hereafter, by law, 24

25 control by legislative action. 9

The City of Brecksville chartered

municipality, and as a chartered

ipality, the City

4 rule provisions provided in Article lQ, section 3 and Section 7, to certain powers of

local self-government, and it is,also limited read, ooncernj-ng 7 by the language which

questions author3.zedby law to control by

legislative action.

10 As the Board understands and has read

11 the petition, the petition has set forth a

12 procedure, the end result of whichr or the

13 goal of which, is to amend the U.S.

14 Constitutian; that i,s not within the City of

15 Brecksville's local authority.

16 Now, I will represent to the Board that the City of Brecksville has taken this

position historically, and has taken the

issue or we- 19 position that if we have a l:ocal

20 have local authority, we will participate as 21 we must do under the Ohio Constitution. The

22 problem the City of Brecksville has is this

23 Board doesn't face the consequences if we 24 exceed our auth,ority. The petitioners don't

25 face the consequences if we exceed our j, authority.

^ But in the Ohio Revised Code under

3 Section 733.56 and 733,59; if the Gity of

Brecksv sapplies funds, uaes funds

5 illegally, or abuses its corporat.e powers, a taxpayer of the City of Br'ecksvilS:e can 6 request that I file an acta:on to stop that,

and if I don't file that action to stop that,

that taxpayer has the right to file an action

to stap that, as far as the sapplication of

11 funds or abuse of its oo.rporate po

12 MR. MCNAIR: I'ti7 sorry. Is that

13 referenced in your brief?

14 MR. MATTY. No, it i.e not, Mr. McNair.

15 That is the con.sequence of what we face.

16 What is actually in my brief is the substance

17 of the argument as to why this is not within

lg our authority. That being the case, we are

19 the ones that have to watch, and we do watch

20 what; we do locally because in any

21 govexnmental action we take, if we exceed our

22 authQrity, we are subject to that.

23 As Da.rettor of Law in the City of

24 Brecks,ville, today I am here simply to

25 reques,t that the Board find that the 11

initiative petitian is not valid and

sufficient under the law and that you do not

continue to take action to place this cr'n the

4 November 6th ballot. MR. MCNAIR: So that I can bettez

understand your position, can you;go to the

petition itself.

MR. MATTY: Yes.

MR. MCNAIR: And if you go to the

bottom, the first sentence says, "Beginning

11 in the year 2(17.3y the Mayor and City Counsil

12 shall designate one day in the month of

13 February following the November federal

14 elections as Demooracy Day." Do you see

that?

MR. MATT'f: Yes.

7 MR, MCNAS.R: If that`s all this petition

said, would that be a valid initiative

petition?

MR. MATTY: I don't think there would be 20

an issue onit.

22 MR. MCNAIR: Okay. Soyou know where 23 I'm go:ing, Decond sentence, if it also said

24 on this day the Mayor and City Councsl shall

25 sponsor a public hearing in a public space 12

1 within the City, would those two sentences

2 alone constitute an iittproper init3ative

3 petition?

4 m12. N7AT"lY: Yes, it depends on

g purpose of the public hearing.

6 MR. MCNAIR: Okay. And if e

7 have a discussion about -- well, go on.

Where in that first paragraph would you draw

the line between what would be permissive and

10 Kahat' s riot permissive?

MR. MATTY: The first sentence.

12 Z3nythirig after the first sentence is for the

13 goal or the purpose of attempting to amend

14 the U.S. Constitution. In fact, Mr. McNair,

15 if you want to get into the petition, the

16 petition sets forth the procedure which would

17 bring the citizens of Brecksville to a

18 Brecksville pu7a7.ic facility, whichthere is a

19 cost to. It would take the Mayor's time and

20 Council members' time to present certain

21 infoxmation, but when it cor:r.e.s time for the

22 results of what happens from that, not`1'ing

23 contained in that public hearing or nothing,

24 as far as the information that is gathered,

25 is sent to the re:spective state or federal 13

officials by the petition itself. 'Phe result

of the petiticen is that the Mayor must send a

letter which ind,icates what is contained in

129.02, which simply indicates that the

citizens of Srecksville voted in support of

an initiative petition, where the calling for

7 a Constatutional amendment, Where only human

beings, not corporations or legal persons

with Constitutional rights, and money is not

eguival::ent ta speech,

11 MR. MCNP1I12.t that sense, if

12 understandin:g your arguznent, Section 01 is,

13 in effect, completely disconnected from

1y Section 02.

MR. MATTY: There is no connection

;soever, and it is a gathering of

17 information which doesn't find itself

18 anywhere. The additional problem with 02 is

19 that the Supreme Court hasalreatiy determined

20 and has accepted the concept of the Welcti

21 case in Missouri where that was done and that

22 was not seen to be proper. So we are asked

23 to do a procedure which results in no effect

24 of end results, other than telling certain

25 elected officials above the local level, the 14

fact that if this passes in No+remberr it

2 passed and here's what the issue was, can I hear HASTING: Pets

yo please, summarize your position and too on that. we be asking questions,

a Thank you, Mr. Matty.

7 MR: MATTY: Thank you.

g MR. HASTINGS: You couldstay up there

9 beca.use i'm sure there will be some questions

r, too.

. PETSCHE. .y seally has two

objec

MR. HASTINGS: Please state your name.

Mr. pETSCHE: My name is Jack Petsche. 14 on behalf N1R. HASTINCS: And you're here

of the Ms. Petsche?

MR. pETSCHE; I am here on behalf of the

petitioner, yes.

Mr. Matty has stated, really, two

objections tc7 our citizens initiative

and I'm qoin4to read 21 petition. one is,

22 directly from his brief. "Here, th

violates Article 2 Se^ctzon 1(F) of the Ohio 23 24 Constitution, by addressing a question, the

y5 City of Breckstrille does not have the 7e5

authority to control by legislative action,"

okay. Sf ycu turn to the conclusions of my

law and argumeYit in my brief, you'11 see that num.erous opinions 4 the Ohio Supreme Cou I

has held any claim alleging the

unconstituti.tanalitY of the substance of th

proposed ordinance or action to be taken

pursua t to the ordinance when enacted are

premature before its approval by the

10 electorate.

MR. MCNAIR: Okay. stop the.re.

arguments. One 12 you have two 13 is kind of a procedural argument. In fact,

14 it's not right now. You can't even address

115 the substance of what's to go on the ballot

16 until the people vote on it. And then T

17 think you have a second argument that

la substantsvel:y is proper.

19 MR. PETSCHE: `ect:

20 MR, MCNAIR: One-of our opinions

21 addresses the first argument, and it does

at least provisionally, thaw our 22 seem to me,

2^1 __ Mr. Lambert's opinion is correct, and

24 therefore your procedural argtament is

25 incorrect. And to go to the bottom line, 't know how yov can reconcile your

procedurel argument with the Rhodes case= 2

Because as I unde.rstarnd the Rhodes case, it.

came up before there was a vote. And if

that's the case, then it clearly is, i think,

within our jurisdiction to conaider the.

substantive argument that Mr. Matty has made

So that's my concern, Tf you coiil.d address

that part of your arqument, I would

appreciate it. Was I cl,eary

MPy pRTBCBR; Yes, you are saying yo'u

12 want me to proceed with the substantive

argument. MR. MCNAIR: Well, I want -- I don't 14 think, to me, the substantive argument

personally is a mueh closer question than the

17 procedural argumenty The procedural argument

18 that you made I don't think has mer

19 I'm giving ydu the oppartunity to address the

20 procedural argumen.t first. Because if You're

21 right on that, then you're saying you don't

22 have jurisdiction. I personally, at this

23 point, don't accept that. I accept what our

24 legal counsel said seems to make s;ense

25 because of the Rhodes case. 17

MR. PE'PSCHE. opinion goes on

to say, "In other words, where the mandatory

p.roviss;ons of the constitution or statut..e

prescribi.ng the necessary preliminary steps

to auth.orS.ze the submission to the.elect.orate

of an initiative statute or ordinance has

complied with, the submission will not be

enjoined." They are citing a 1921 case that

has never been ov'ertuYned.

MR. MCNAIR: Well, that's the Rhodes

11 case, The Rhodes case is a 1967 ^case. It is

an Ohio Supreme Court case. In that case, as

I. read the summary from Mr. Matty, putt.rng

aside how it applies here, that, in fact, was

decided by the Board of Elections before

people voted on it. And so it does seem

17 appropriate that the subject that has been

18 ed by the Czty is before us. Not simp y

19 because you had enough signatures. it seems

20 to me, that's your argument. We had enough

21 signatures, everythi;ng was valid in terms of

22 processt you can't really look at the merits.

23 T just see the Rhodes case completely

24 eviscerating that argument. FTave I stated

25 your position? MR,. PETSCHE: Yes. And let me talk

akaout the Rhodes case. The Rhodes case,

resolution there was, be lved by the

people of the Village of oughby Hills,

5 Ohio, that: "The President o£ the tlnateaS

6 States should bring all American troops home

7 Vietnam now so that the Vietnamese

people can settle their own affairs." ?t

9 would have been wonderful if that actually

10 happened, but as We knowr it didn't.

11 The Supseme Court dispensed in that case

12 with :a one sent.ence op,inion; one sentence

13 opinion, and it said: "The initiative

14 petition in this instant case does not

15 contain any question which a municipality is

IG authorized by law to control by legislative

17 action." And that's it. So we are left with

18 having to draw conclusians that the Ohio

19 Suprene Court did make a decisron with regard

20 to constitutionality of this case, but that's

21 their job, they a the ohio Supreme Court,

22 that's not a Board of Electi.ons.

23 NaS. CHAPPELT;s So is your posit,ion that

24 the City actually has the authority to amend

25 the U.S. Consti.tution, that the Council could do that? I mean, that seems to me the

2 fundamental first question to be asked.

ME#: PETSCHE: No, I did not say that,

4 What wedo say, though, is that the City does

5 have theauthority to create a Democracy Day,

6 they do have the authority to call a public

heari:ng..

MS. CflAPPE'.L;L: Wouldn't you concede that

your petition goes beyond just those couple

steps?

MR. PETSCI3E: Xes, but if you read what

Rhodes is sayinq, if it does present a 12 question if a city can deal with

14 legisJ:atively, it should be okay. The

].5 problem is w"e had a one-line resolutiGn.

16 there, and clearly the City ki.ad no oontrol

17 whether or not the troops came home from

18 Vietnam. But in our case, the city can

19 conduct a hearing, and what is the substance

20 of our hearing? fihe public hearing will

21 examine the impact of political contributions

22 of corporations' Union PACs and Super PACs on

23 the City. We can't do that?

24 MR. HASTINGS: Mr. Petsche, we have

25 other people that are here. There will be ,a o

1 more questions for you, Mr. Matty. But I'd

2 like at this point, I just want to give

everyone three minute's if they wanted to

4 eomrnent. You can see, I think, some of the

arguments and discussions this Board is

6 having with the proponents and opponents

deals with legal matters. I can tell you,

I'm not taking a position one way or the

9 other; about the merits of this propasal at

10 all. But you're welcome to come up and share

11 your thoughts. And I'll start with Mr. Ed

12 Kizs, who lives at 11014 Cardinal Lane in

13 Brecksville, Ohio, and he wants to speak on

14 this matter. Mr Kizs.

15 MR. KIZS: Thank you, Chairman. I just

16 want to kind af elaborate on some of the

17 points that were made here today. First of

18 all, articles of the Constit.utio.n gives the

citizens of the United State.s, via their

20 legislative leaders, the ability to amend the

21 Constitution„ Those amendznents; I believe

22 they are usually started by movements.

23 Movements are started by citizen's aetion's

24 or by legislators and their actions. We want

25 to start a local movement to direct our 21

1 legisl.ators to a national goal, not a local

2 goal, that says we give Brecksville the

3 ability to ameii.d the Cnnstitution. We want

4 to direct our national leaders to focus on

5 the national goal to amend the Constitution'.

b Number two, the City of Brecksvill.e says

'7 that there is an expe;ndi.ture involved in this

st the Ga.ty money. Majority of

9 votes usually cost the city money. Wheu 1,1e.

10 vote onaTl ardinanc.e to allow construction of

a facility, to buy a fire truck, when the

revoke, we a 12 majority of the citizens Gity leaders the po er 13 basa.ca;l.ly giving o

Zq to spend money.

Mr. Matty''s point is that 15 MR, MCNAiR: d be spending maney for something 16 over which the C,ity of Brecksville does not

ft. And then that creates the have jurisdicti il problem. Did Z atate your position; 19

20 Matty? MR. MATTY: Yes, Mr. McNair. I't creates

a possibility that another taxpayer who has 22 an opposite opinion, from the taxpayer that 23

24 has just spoken would have the right to instruct me to file a lawsuit that, quite 25 2.

honestly, in my opinion, that I would have to

2 do so to stop ri6y own couneil and mayor from

takin.g any that would be beyond their

4 authority that because if they actbeyon:d

there authority they have to act otherWise.

MR. MCNAIRt Okay. Thank you, I'm

sorry. Go Ahead.

MR. £'ETSCHE: Yeah, I don't understand

that. It sounds like if another taxpayer

10 opposes a purchases of a piece of equixsmezit

or hires a new employee, they can do the same

12 thing.

13 NjR. MCNAIR;: Yeah, I think he is trying

14 to make a distinction. I mean, dlearly the

i5 things that the City of Srecks

16 kind of run its operat.ion, like buying a

part of what 17 ek:, We all agree that's 18 Brecksville does. But I think Mr. Matty's

19 point is, if you + spending money to do

20 soinething that y outside of the

1 21 jurisdiction of Srecksville, then you can't

22 spend money. So that's --

23 MR. Matty: I guess I have to argue

24 it is wi.thin the jurisdiction of the City

25 Counci:l and the Mayor of Brecksville to hold 23

a hearing on whatever topies would like to s Zoning, policy matter, 2 discuss. Whethe

or items Qf national interest that at.tect our

pali and decision-making: process.

5 MR. MCNA.I7R: In this country in your

y view, as I ixnderstaxid it, you can require the

^ officials to hold a meeting, ev.en if the

g subject matter of that meeting does not

9 relate to something over which the council or

20 the Mayor has authority. Mr, Matty disagrees

11 with me.

12 MR. HA$TING: Thank you, Mr. Kizs.

13 MR. KIZS; Thankyau.

14 MR. HASTINGS: Mr. t)erek Disseli of 24$8

15 West 5th Street in Cleveland, Ohio. Is

16 Mr. Di:ssell here? Good afternoon,

17 Mr. Dissel l.

18 MR. DISSELL: Thank you for your time.

19 MR. HASTINGS: Thank you.

20 MR. DISSELL: I'm not here to speak upon

21 the legal issues surroundin,g this or you said

22 the procedural measures, but our strong -- we

23 have to pass this because democracy in its

24 purest form is the right to dertCocracy,

25 eitizens initiative, the progressive movement 24

l in the early 1940s was built upon the

2 citizens initiative, and this is a clear

3 exantple of thaC,. This is something that

q empowers people to effect change. Tt has 92

5 percent I believe accuracy. Typical

6 ive only has 60 to 65 percent. The

7 reason it was introduced is quite simple.

Oitizens United the Sunlight Foundat.ion

is shining light on spending in elect: 2012 10 70 pereeilt of political ads

election cycle have been negative. Only

about 31 percent havesbeen aetually positive

ads. And this doesn't do anything to

14 encourage an important debate or a serious

15 (liscussion. Striking this down, this

16 ive down, would be an affront to the

17 citizens -- exeuse me -- to the City of

la Brecksville,

19 MR. HASTINOSs Thank you, Mr. Dissell.

20 I appreciate your comments very much,

2,1 MR. DISSELL: Thankyou for your time.

22 MR. HASTINt',S: Mr. Ted Seuss of 6853

West Fitzwater Road, Brecksville, Ohio.

24 Mr. Seuss. more 25 MR. SEUSS: it is wonderful to see than one generation talking about tliis. I

appreciate our previous speaker.

I'm a 32-year resident of Brecksville,

been voting for 41 years. In those 41 years,

Shav'e 4een an independent for every single

one of those years except for fourof those

years. That was just on'e particizlar primary 7

that I wanted to vote in. Even then, very,

very much an independent voter, and I will

be an independent voter. Why^ 10 Because I really don't like both parties, I 11

12 mean i have problems with them.

R. HASmSNG: We will take nothing

14 nally. MR. SEUSS: But the point I!m tryin 15

16 make: this is a nonpartisan issue. It shoua.u have nothing to do with politics, it should 17 have nothing to do with what party anybody is 18

When I got interested in this, I read 20

21 that thete were more than 60 percent of

formality of Democrats, Independents, and 22 Not 23 Republicans in favor of this initiative.

the Iirecksville initiative, but basically in 24 favor of what Mr. John McGain called the most 25 Supreme Court y deplorable decisiort ever by a

2 in the iJnited States of America. So what I

think tlie people are saying here has nothing

28th amendzn 4 to do with passing a Brecksville. It says in suppart of, but it

does not say that we are charging the City of

cksville with that action.

All we are asking is for the people of

the Cit;y of f3recksvill.e to express their

ass-roots opinion on this, and if they so

decide that corporations, by the way, al.se 11

12 i'm a businessman. I owned my own

13 corporation f4r 18 years before I sold it,

14 and Z never thought of my corporation as my

15 people. So corpor?tions as people and mQney

16 as speech is something that we are seeing now

1 -r in our elections taking ovex and buying

18 an democracy. So that's not the iss.ue here. The issue 19

zo that this initiative is zrn support of that 21 Position, but it does not in any way charge

22 the City of Brecksville or the Mayor or the

23 Law Department with the job of passing aTn

24 arnendment. It charges it with just listening

25 to the people and taking what the people want 27

atkd having r:very bi-annually a meetsng that

allows the people of Srecksv:ille tp talk, to

bring transparency to local pQlitics, whioh

samething that both sides of the aisle BUt at the should support and reecognize. also just contacting the pecple $ ame t ,

are in government, in the state because

fJurCC1nCjreSs in 8 te legislators Washington is 'where amendments are changed -- 9 are made:. Sust to communicat.e along wzth all

the other towns and citizens all over this

12 country that are doing the same thing. 1'hey

13 shou7.d just be able to say, this is how we

1;4 feel. If the citizens of the city

15 Brecksville don't feel this way, then they

16 will have spoken, and that's what this

17 initiatlve is askitLg, for the peQple to have

18 the right to just speak. So, thank you.

19 MR. HASTINGS: Thank you, Mr. Seuss, for

ing down and shar:ing with us your

thoughts.

lois Ramanaff, at 12802 Larchmere 22 23 Boulevard, I believe, in Cleveland.

24 LOI.S ROMANOFF: Thank you very much for

25 letting me speak. 28

HASTI2vGS; ThAnk you.

2 LOIS gpMANOFE'; As you can tell, there

3 is a lot of passion around this issue. And.

4 there is a rloott reason why tla.ere is so much

5 passion around it. And it is because we are

very clearly seeing the damage that is beinq

done, right now by the current election, and

the last primary which had taken after the

Citizens United petition. And that there was

an excessively large amount of money being

spent by corpor,atz.ons and wealthy individuals

which are influencingthe outcome of this and

other electi.ons. Arsd this is not r.ight. And

14 the citizens of Brecksville and the citizens

of Newburgh Heights are worried about this,

16 as many other citizens are, including

17 My

18 So there are towns and even States and

19 legislators all over the country Which have

endorsed this move to amend the Constitution

21 to g:et rid of corporate personhood and money

22 as speech, which has gone on since 1886. It

23 did not start with Citizens United. Citizens

24 United put corporate personhood and money as

25 speech together from other decisions which 29

i occsrred, but corporations were never

2 intended to have the People's Biil of Rights

3 and that's what we want to change. We

4 consider corporations entities and not people

5 tlat have the right to have, for example, '

First Amendntent, whlch is what Money As

Speech is all about.. So I just encourage you

8 to allow the good eitizens of Newburgts

Heights and Breoksville to allow this

initiative to take place.

MR>, HASTINGS: ThAnk you, Ms. Romanoff,

12 for coming derwn and sharing your thoughts

13 with us. Ms..Ann Knoteek on Bader Avenue in

14 Clevelandt Ohio.

Thank you. I am speaking 15 MS. KNOTECK:

16 as someone that zs concerned because this

17 affects everybody, hbw you vote on this for

18 Brecksville, Newburgh Heights. It also

19 affeets the way these other cities are going

20 to see this. There are other cities, myself

21 included, in ClevelancF are working on this

22 is-sue.

23 I was going to address two of the more

24 technical points that we were talking about.

25 This is the part that entails something that is in the jurisdiction of the G.ity to be able

2 to do somethinq that affects the people 1ocally,: however yau want tosay it. 7 th.ink

4 if this issue i: pzlt for a vote, by the

5 people voting essentially, they are

6 saying it does affect thean and therefore it

somethitrg, cal matter. If they

for, you know, something like

every year or something. If 9 this,

;p they are saying they are voting for it, they

1 obviously believe that is soinething that

12 affects thecfi di.rectly. Therefo're, addressing

0 that question, does it really address

Lq something that is going on themselves in

15 their city.

14 The second point about passing a

12 Constitutional amendment again, I think a

18 couple people said this, in other wotds,

19 they're not asking the country^ they are not

20 asking -- Brecksville is not asking for a

21 Constitutional amendment from the couritry,

22 they are saying that the people of

23 Brecksville join with others to say that, we

24 are asking the people above to look at this

25 issue and make note of it and address this ent. As others have said, this is hoca

have happeneel in the past, 2

not something unusual.

They are just askingi the

the Mayor or the CitY to put in their wor^dS

s,rhat they are trying to pass on to the higher

7 level. qkay. MR: HASTINGS: Thank you NIs. Ffnoteck for s o•oming down and sharing your thoughts with

us. MS: Carla Rautenberg -- T'm sorry, if I a 11 m'sspronounced it -- at 3065 Berkshire. I

12 think that's in Cleveland. Thank you for

13 coming ctown,

14 MS. g3AUTENSERG: Good afternoon.

HASTINGS. Can youpronounce your 15

16 name? ^erg. MS. RAUTENBERG: St's Carla Rauten

lg MR. HASTINGS: Thank you.

19 MS. R,AUTENBERG: so i heard at the

20 beginning of this meeting, one of you up

21 there, it might have been Ms. ChapPell, said

22 let the votera de-cide- I like those words.

Sxamething that was mentioned earlier was 23 about the huge influence of corporations and 24 wealthy individuals on elections. But what 25 2

y.. wa.sn't mentioned specifically here today, or

2 hasn't been yet, is ttiat those dollars are

3 boing spent in secret, in secret. So this is

4 not a secret process that w:e hAve here today.

And I am really grate£ul for our chance to

speak to our de'mocratic rights. I am very

worried that our democratic system is in

danger in this cbuntry. And I hope that yotiz

wa.ll take into due consideration the

educational value for the citizens to be able 10 to discuss this most important issue of our

12 democracy, to be ab1e to vote on it. And

13 however they vote is how they vote. But if

we oan't get it on the ballot, then I don't 14 know wliat the ini.tiative petition process is

for. So I do hope you'll consider that.

Thank you. MR. HASTINGSs Ms,. Rautenberg, thank you

19 for coming down and sharing yo^qr c

20 with us. Mr. Greg Colerige of Cuyahoga Falls. 21

22 Good afternoon, thank you for coming. Mr. >23 MR. CQLER,IGE: Good afternoon. My name 29 Chairman and members of the Board.

25 is Greg Colerige. I am the Director of 33

Northeast 4hio American Friends Service

2 Committee and coordincator of the Ohio Move to

Amend Campaigni which is as mentioned the

vehicle that is organizing groups and

communities across the country to weigh in

the douncil resolutions, which many

communities, inclugtin.g those in Barberton

Atens aild Oberlin have passed. As well as

placing measures on the ballot by council,

Whach is what.Newburgh Heights has done. As

as passing the citizena initiatives,

12 wyhyc'h is wha..t, the City of Brecksv:ille is

13 trying to do.

14 To address this whole arena of issues arciund

15 corporations not being peopl:e and money not

16 being equated to speech, well, we could spend

17 a lot of time talking about the merits or

demerits of those issues• I want to deal

with the two substantive issues that the City

20 of Srecksville and the Mayor and Council have 21 brought up, that I think is very important.

22 One having to do with the legitimacy of a

23 public hearing, aka a Democracy Day•

24 I.t would be a whole day, one day, in fact

25 rtot even a whole day, that a euphemism, a 34

1 couple of hours, every other year, and

2 whether or not that is the germane or

3 legitimate function of a City, of a Mayor, of

4 a Cou.nca.l that would be spending precious

a whole couple of hours showing up to a

a public meeting.

7 Now, S'rn sure some of these same

s officials showed up to Boy Seout gatherings,

9 Girl :3cout gatherings, and don't crtnsider

3;0 those things to be not germane. S"'m sure

11 council has passed resolutions calling for

12 whatever day of the year something is goin:g

13 to happen, or applaudi.ng a personin the

ni:ty or decidzng what organizata-on,

15 because of soinething,they've done ee an

16 organization outside the cvrnratunl.ty, something

17 important. Well, reSol.utlons, and many

18 resQlutions, of course, as you may know, deal

19 with state and federal issues. How is that

20 any different? Precious time.

21 The lights are on at City Council when

22 Council is considering to support or oppQae

23 health care reform or abortion, gun control

24 or :any other issues. People are on the clock

25 as Councs,l meTnbers or the mayor when those 35

is that resolutions are being debated.

2 any different? So, tamer there difference, other than council is considering

whether to take up a resolution versus the

people, instructi.ng cou,ncil to deal with this

measure via citiz.ens initiative. That's one

g The second has to do with this notionof

whether or not the Ci:ty of Breoksvi..lle, ca.n,

10 all by itself, call for a Constitutional.

11 amendment; of course., that's absurd. They

12 can't do that. But what they can do is,

13 people across the country are currently

people hate 14 arguing and what histor.ically

15 done, reot just on this issue but across the

Boa rd, .y polit.ic,al pressure- nately, we don't have^ megabucks

our own Super PAG to create attack ls to create ads for or against this issue. We have to

20 rely on people coming together, meeting

21 face-to-face and using things likethe 100-year-old, and it is 100 years old right

23 now, this year, Citizens initiative process

in the state of Ohio passed in 1312• 24 here

25 What that does is it allows people to weigh 36

1 in on a very sali.ent issue. And on this

2 issue, if you read the language, it basical3.y

3; is not calling for a ConstltutiQnal

4 amens9.men,t, it's calling on Congress to pass a

ConstitUtional amendment in the same way that 5 6 mayors and councils call up state

^ representatives, call up their

g represe.ntatives, councilman, their senators,

9 maybe even their president, fly to Washington

10 to testify on behalf of increasing budgets

11 for measures that take place in t

12 commuhities. What is that? They can't

13 control the federal budget, they can't

14 control state budgets by themselves, but what

15 they can do is apply political pressure.

16 Again, the only difference is that the

17 zniti,ative for this is coming from we the

yg people, or they the people, their interestr

19 as opposed to public officials who, quite

20 honestly, probably disagree with this.

'21 Whether they like this issue or not is

22 immaterial. The issue is whether they have

the Constitutional right, the people, to do 23

24 this. There are many municipalities -- and

Z'll end this here -- who, by the way, have 25 people on their payroll,, whose job it is to

lobby federal government and state

3 government.

4 C.Ltyof Clevela.nd's Valarie McCall, I

3 can't remember her eXact title, Dir'ector of

gPolitical Communicat'i.on or relations or

someths.ng. Her job, a paid job by taxpayers, 7 8 is to lobby, is to call on Congress to pass

g laus to give mtrre money to the City of that any 10 Cleveland for X, Y and Z. Hoc+*

11 differe.nt than the City of Brecksville via

12 citizens initiative, calling on Gongre h our 13 pass a Constitutional amendment,

14 selective ConstS.tutional right to,d.o.

15 Tf we the people don't have the right t

16 amend the Constitution, and if we the people

17 in Ohio don't have the right via citizens

18 initiatives to call for something like this,

19 then there shouldn't be aConstitution, there

20 shouldn't be a citizens initiative, and we

21 are truly in an undemacr'ati.c place.

22 MR. HASTINGS: Thank you, Mr. Coleriget

for coming down and sharing your thoughts 23

24 with us. 25 MR. MCNAIR: (Applause) I just want to react by saying, somebody whb is an employee

ng o try of the City of Clevelaisd, who is g -o

to do something tO ey for Clevelancl;

4 is different than somebody trying and beirig

5 ordered in BrecJcsville to try and go to the

pretne Court or go to the President to afciend

I something which they don't }.iave jurisdiction

8 of. I think that is a distinction.

g MR. HASTINGS: Mr. McCoitville, you have

10 been brought into this discussion because yotii

ii have an opinion that supports this initiative

12 in Newburgh Heights, and you had a chanee to

rea and you've also heard an opinion

14 from our Law Director, so why don't you

15 suiranari:ze your position there, if you would

16 like. MR. MCCQNVILLE: Thankyou. My name a.a

Luke McConville, I am the Law Director for is

19 Newburgh Heigtits,

20 As an initial matter, I want tca point

21 out that there are a couplo of differences

22 w.ith respect to the Newburgh Heights

23 ordinance and the manner in which it is

24 brought to that renders some of Mr. Matty"s

25 argument sort of moot. The first is, we 39

don't have a protest tl?at's filed against us.

the purposes of 2 The second is, , analysis, we are looking at an h€aYrie q action that's alreadylaeen taken by our

5 cC?u.ncil, This is nbt -- it doesn't fall

y the same category. We've alreatlyhave taken

7 governmentai action. The proposed ordinance

^ cornes to you £rom the vote of the council.

And then lastly, the arguments that

10 relate to 733.56 and 59 regarding oitizens

11 directed lawsuits and cacpenditures, those

cut in favor of Newburgh. 12 arguwenxs really Heights because it would be the eireumstance

h the Village Gouncil went ahead and

passed the proposed ordinance directly 15 16 without asking the voters to question where

there might be a legitimate concern about how 17 government was spending its moriey.

However, in this set of facts where

council is not doing that, they are passing 20 21 an ordinanee that essentially ced:.es their own

22 power back to the voters, that issue is

23 presented directly to the votess, and in a

24 sense, in that way could be viewed as

25, political cover for those council members who 40

are asking the vQtexs direct]y, should we

sppend o'ur money th:is way? 2 Having said all that, I think that it

, respect to the important to note that w

Newburqh Height5 or.dinance, there is no

language in the ordinaaace that requires or

directs or ask.s anyone in the feCieral

grrvernment to do anything. We view our

ordinance as a matter of local concern: We

are to form a commit.tee. That co?[imittee

to consist of the Ma.yor arid Gouncil. They 11 0°conduct a public hearing. Citizens 12 are to be given an opportunity to speak at

14 that hearing. Then there is an obligation to create a 15 cument that ie 16 public document, a findings

17 to be submitted to our fiscal officer axi.d

reby become a matter of public rd. ink tYaat's a critical aspec>t of our ordinance, the fadt that our mayor and

Counc:il are being directed by the voters• to

create a public record related to their 22

studies And then lastly, the ordinance, it is 24 25 noteworthy, in that it never mention5 the 41

ens United. It is an expression

2 of a political view by an elec.toratethat the

mayor is being asked to perform a mina.stera.a:

functions with respeet to that, that is to

say the voters are saying, se?id our Qrdinance

to these pe'ople to let them kriow we passed

it.. That's all it says. it doesn't direct

them to do anything about it.

The ordinance i s at an end once the

Maypr tosses that ordinance in the enaelope

the officials, that he rs and sends it to

directed to send it to by the ordinance. 12 MR. MCNAIR? In fairness to Mr. Matty,

he was entrusting your sa.tuation. Sut why

15 doesn't the Weloh case apply equa?1y to your

16 ordinance, as was the argument made by

17 Mr. Matty in Brecksvi.l.le. 18 ME?, MCCONVILLEr The Welch case is much

broadera The ordinance in the Weleh case is 19 much broaderthan the ordinance that our 20 Council is proposing to our voters because 21 the We:lch case, again, calls for specific 22 23 a.ctions to be taken by officials in the

federal qoverninent, whereas we're not asking 24 anyone in the federal government to do 25 42

ari'ything. We are asking our Mayor to give

2 them notice that there is a political view

that has been expreased by our electorate.

So I think the case_is di.stinga.is,hable on it.s

facts. y, aren't you doislg MR. MCNAIR:

7 this in the hope -- I'm just looking 3t it, T

a hope zt's an accurate quote frcrm Mr. Matty's

9 poaition. it says talking about the Welch

10 e, The Caurt found the initiative was not proper legisl2tive action. The Cotart's

reason that the initiative, quote, merely 12 directed the City and the City Council to

14 write a letters expressing the attitude of

15 the Ci.ty's vtiiters aza fbod labeling to

16 relevant state and federal courts, in the

17 hopes of persuading those authorities to

1g enact laws requiring labels of genetically

19 modified foods." Isn't the hope of the

20 letter your sending to try and get -- it is

not a rare act -- the hope is to try to qet 21

22 Congress to do something to amend or to

23 modify Citizens United. Really, that's

what's going on, isn't it?

MR. MCCONVILLE: Well, there is more 25 43 y than that going on. There is a hearzng tha

2 is being conducfietl.

3 MR, MGN13IR: Right. I got that part. q But your ordinance, like Brecksville's, has

to right? One is, this is

e going to do locally.

7 going to discuss this issue. And frankly, Z'm not convinced about Mr. mstty's argu'ment 8 that simply subject matter means you can't do 9

that. That's one issue. l0 The other issue is that we are going to

sond these letter5 to these other officials

13 addressing an issue that really is beyond our

14 capackty, That, frankly, troubles me much

15 more based upon the Welch case.

16 MR. MCCt)NVSLLE: i think the difference

17 is that cae are not asking them tQ do

16 anything. We are not asking them to take arT.y

19 actloSl: MR. MCNAIR; But you are doing it in the 20 hope of persuading them to take action.

^2 N. mCCONVIS,LE: No. What the electors

tlirecting their mayor 23 are doing is they are 24 to perform an a ministerial functzon. That's

25 - what they are doing, in the language of the 44

ordin.ance. MR. MCNAIRs Row is that different than 2

Welch? MR, MCCONVILLE: It happ?n.s to relate.to

an ordinance th4t expresses an opinYon about

existent law. MR. MCNAIR: Bow is that different than

tfie Welch case": MF2.MCCQNVILLE: It's different because

what yQU're, de5cribing in the Welch case that

3t's asking them specificallX to take an

action regardirtg labe.ling of fovcl. All We're 12 doing is telling our Mayor, send them the

ordinance so that they know th'at there is

this political opinion out there. 15 MR. MCNAIk: The Welch case is directing

the c,ity coutica.l and city to write letters

expressing the attitude of city votes,

That's what you're doing. Expressing the 19 attitude of city voters. Here on food 20 21 labeling you are ef:fectively -- it's not in

22 there, but it is effectively Citizens United.

In the hope -- these letters axe being sent 23 in the, hope of pers'uading authorities ta 24 enact laws to change to the Citizens United 25 45

the labeling to genetically or here requirin

2 modify foods. MR. MCeONVI.LLEs Vaell, i guess I do aee

T wi iI acuui^ 40 that a ars' ty there , see a dissimilarity or maybe a

disconnect in the way we are thinking about

sue is that I elon' t. think 5

th'e voters to pxesuppose an outcome as to to say that the 9 ballet issues. Which is rs are ought to be able to express their 10 relates to these, the 11 wishes as i unctions that are going to be 12 ministe to express the view that they perfori

14 don't performed for whatever

Fin.

MR. HASTINGS : Thank you, Mr. nk that's Mayor Elkins next 17 McGonvi].le. I tr to you there. Do you want to be heard Sif'?

19 Thank you for coming down: MR. ELKINS: Thank you for allowing rtie 20 to speak. I would just like to tou'ch d'n a 21 c.ouple quick points as a mayor and an 22 individual that introduced this particular 23 piece of legislation. I do have an opinion 24 on Citizens ifnited. However, that is not 25 45

evant, think, to what we are discuss

2 today, as regarding whether or notthss

3 should be placed on the ballot.

4 T will touch on Mr. Matty's argument,

5 that I think coming,from a communlty like

6 Brecksville that is much more wealthy than

7 the Village of Newburgh Heigh.ts, I think it

g probably is a Stretch to argue that it is an

9 inappropriate use of the community!s funds,

10 especially given if an electorate directs you

11 to do so. And what could it possibly cost?

12 A couple hundred dollars and maybe, you know,

o 20 million dollar annual 13 out of

14 budget

15 S also happen to be a Finance Director,

16 previous, Finance Director for the Village of

17 Nemburgh Heights and Assistant Finance

19 Director for the Village of Cuyahoga Heights,

19 and I can assure you, holding a public,

20 hearing and mailing a letter to your eleeted

21 officials is hardly an economic burden any

22 more so than tahat is done everyday, or

23 atteliding, as it was mentioned, a Cub Scout

24 meeting. Having said that, what's the

25 difference in this particular case, for 47'

example, than in the case of the City o£

Bedford, where they are asking the

electorate, should you take Jimmy Dimora's

name off the community center when they cou]d

just do that themselves. What's the

6 erence? MR. MCNAZR: I guess I taould say the

difference is that that City has the

9 kind of it's 9 atxthority and it's within

10 roundhou:se, so 'to speakr to do that one way

11 or the other, and because it, is within their issues jur.isdi:ction ki:ecause of a

und that, they want to get a sense of

14 their own public. It does seem to me a very

zg different issue>

16 MR. ELKIN: And I would disagree with

that. In that it is different given that 17 18 what we're asking is our public to decide if

19 this is an appropriate use of public funds+

20 to issue the opinion of the electorate or the

21 Village of Newburgh Heights. T'hank you for

22 your time, I am confident that you will --

23 MR. HASTINGS: Mayor, just to ask you

24 and this came up from Mr. Coleridge, why you

25 can't do it through resolution, what's the 48

1 difference?

2 MR. EI,KIN: We can, but we want to hav'e

3 the opportunity to be sure that the in fact, 4 electorate in Newbu..rgh Heights dcres,

5 want us to expend the effort and resource:s to

6 determine whether this is a relevant us

there are 7 their resL7urces or ncat. And

R communi:ties al]. over the State of Ohio that

ady passing resolutions of this

nature, but we think it is xelevant to ask

11 the electorate should we be doing this. Mr. Coleri.dge, I think I 12 MR. HASTINGS:

13 know the answer, but what's the diff ordinance? 14 ;aetWeen a resoluti

15 thirik a resolution is not legally binding but

16 an crrdinanee is, correct? Is that the

17 di.stinetion? I don't think that's the 18 MR. COLERIDGE:

19 case. A rescalutions could be passed, for example, requiring the mayor to purchase a 2o

new fire truck.

MR. HASTINGS: But it is rrot legally 22

23 binding on the city to do it.

24 Mr. McConvill..e?

25 MR. MCCONVILLE: I don't know what you 49

would opine to, but my opinion i.s that there

is no difference. They both have the impact

law.

MS. CkfAI'PELL: I guess I would ask

counsel -- I'in still struggling with the

6 Welah case. Tt seems tc* me that, at some

level, this is a public opinion poll to that

what extent the Court said because of that it

was inappropriate to be onthe ballot. I"m

y struggling. i actually thought it was

a clear-cut case until the commentary and

sozne of the argumentwe've heard today. A

the passion that I hear today.

14 I have my own political views about it, I'm

15 not going to basemy decision on that. Sut

16 goodto hear, and I thank all the

17 people that came out. Y'm struggling with the N?elch case

because I really don't see how, given what

20 the goal is, and I'm not trying to presuPPose

21 an outcome and I actually differ with a

22 couple statements a.nd opinions that you are

23 having regarding what the motive is, I don't

24 want to presume that the ministerial pieces

25 are separate and apart or masking in trying 50

to circiumvent Rhodes. But i don'turrderstan:d

how you can either review, reconcile Welch

with your position. So could you help me

wrth that? you want Mt?. HASTIIdGS: Mr. Petsche, did

to speak to that? speak to NTR, PETSCiiE: aY'e worried about Welch. First of a ided by Welch: Welish is a Missouri cas

the Supreme Court of Missouri. Zt has no

precedential value in our state. So Welch

12 should be ignored. Welch was cited favorably in a decision

14 called Arlington by the Ohio Supreme Court

15 but not as part of a holding. Arlington was

16 about privatizing garbage callection service

17 in a city. And the decisibn cazne down to,

18 well, the City Manager was already

19 preauthorized to hire a private garbage

20 collection service. Then City Qouncil passed

21 an ordinance saying he could do that. So the

22 referendca;m in that case was to repeal that

23 second legislative action. But the court

24 said -- but since it was already on the

25 books, it was really an administrative 1 action. The,second legislation was an

2 administrative action -- I addres<;'this in my

3 brief, by the way -® was an administrative

4 action and, thwrefe>re, repealing it is an

5 administrative action.

6 And the real case that you should be

7 focused on is not Rhodes. The real case

8 cited time and time again is ponhell.y. I

9 read a,lot of cases in this area. 'i didn't

10 see any citing Rhodes other than Mr. Matty's

11 brief. The case they cite over and over

12 again is Donnelly, It says the real

13, dichotomy here is whether`this is a

legislative act or an administrative act. 14

Legislatlve act is something new and an

admini5trative act is doing something that

17 has already been enacted. C3kay, and that's

1B why you see Board of ElectiOns being

19 reversed. or Board of Elections being

2•0 upheld, and they always cite Donnelly, one

21 way or another. Whether it was alegislative

22 act or an.administxative act. And in our

23 case, there is notksing like this in the books

24 in Brecksville, so this is a legislative act.

25 Okay. At least the City Council -- I mean 52

the City heari.n:g part,of it is certainly a

2 slative act. And also while I'm talking, r Lambert's opinion here seemed to say

^ t ir*^ nnt a window 4 dressing, n

dressing, we really do want to qet together

to talk about the effects of dark money on

have issues with fracking in City.

a our City. These are majOr corporations that are fracking in our cities. we can't talk

aksout that, we can`t have a public kzearsng to

talk about that?

12 MS. CHAPRELL: Thank you.

13 MR. MCCONVILLE; I do have one point

14 briefly, and it is really to the last point

15 that was just made, which is that out

16 orclinarice, I think, in Newburgh is a series

17 of acts, a series of sninisterial acts. I

10 would argue, none of them are standing alone.

19 They are part of a desiqn in the ordinance.

20 And that in addition. to a notice function

21 that is being required, there is this public

22 hearing and there is this duty to ma]€e

23 findings and createa public record. I think

24 that is the distinction with the Welch case.

25 MR. MCNAIR: What about the fracking 53

ty? Could there be -- fracking Ssu:e;

2 is governed by state la% that right?

'A MR. MATTY: Frack3nc overned by

Fracking is governed byan issue 4

5 that has: been d.ecided by the

6 legislature, and to be honest with you, I

7 don't know what it has tq do with this

8 record, but fracking would be an issue that

would face the concern argument if you

10 attempt to do sommethzng locally. I think

11 what we have here, Mr. Mcnair, we have a and that 12 passipn for a zmovement

13 different than an initiative petition.

14 Init].ative petition is restricted as to what

15 questions can be raised by Ohio.

16 MR. MCNAI'R: I get that. I can

17 that distinction. As I understand

18 Mr. Petsche is making -- is asking if, could

19 there be an initiative that`says, that 20 dire:cts that of there being a public meeting

21 on fracking? Your view would be no, because

22 that's goverzred by state law, is that right?

23 MR. MATTY: It's governed by a state

24 legislatures and the statewide concern which

25 backs or limits our home-rule authority. 59

UnfPrt.unatelyr fqr 34 "years S've had to argue

against issues when I'm arguing home rule. 2 This is astret.eh of hame rule wYaich is not

permitted by the Constitution. So, I guess,

unless the Ohio Constitutional language is

changed as to the restriction on *ahether the

initiative petition can do for the people of

g Brecksville, that's the law, that.'s the rtle

^ of law today that we must follow.

10 The Rhodes case followstha..t exactly;

11 It brings up that issue that if you cannot

12 control it by legislative action locally, it

should not he permitted by an initiative 13

14 peta.tion. That's the language in the

1^ Constitution. 16 MR. MCNAIR: To me, the Rhodes case is

distinguishable, and it was clzstinguished by 17 some smart lawyers that came up with this Tg 19 whole approach, which is, when you can't do

it directly, so oY'cler your local people to do 20 21 it, and then that's not administrative,

that's legislati:ve. The question is, is that 22 23 too cute by half or is that a valid

24 distinctaon that flies?

NR ^TTy; I think it applies to these 25 55

facts. Because the movement can continue in

the City of Brecksville without the Ga.ty of

Brecksville having to take certain aetio:.nS

}ahich are beyond their author'ity: 4 MR MATTY: Mr. McNair, if I could make

one comment as to why I think the fracki:ng

issue is relevant and what Mr. Petsche has

comment,ed on: is, there certasnly is capacity

in what this -- anei I support the citizens of 9 Brecksville as well in their ati:empt to put

this on the ballot. V1hat I think is reJ.evafit

and what they're asking is because fracking 12 is an issue that perhaps the residents

themselves of Brecksville don't have any say. 14 15 It is possible that these major corporations

16 could use their wealth to impact the

17 elu^ctions of the City of Brecksvllle by

18 funding particular candidates that

19 favorable to the zoning or whatever it may

20 be. And therefore, this discussion of Super

21 PAC dona'tions or PZiC donations on Democracy

22 Day is relevant to i.racking, for example. S

23 even though this is governed by state law, i

24 is relevant to the citizens of Breeksville.

25 MR. MCCOMVILLE: If I could add 56

something just to the legal point,

g MR. MCNAI&: None of us can, as lawyers.

4 MR. MCCQNVSLLE: The fact that t,he

5 Newburgh matter comes before you in an.

6 ordinance is why I think the initiative

7 arguments are completely irrelevant, and the

8 home-rule clause in the Ohio Constitution

9 fiunctions to protect what Cduncil has done in

10 this and instance that it is uniquely a

11 matter of local concern, where a cauncil

12 propose:s something that directs its mayor and

13 its municipal government to perform c,ertai.n.

14 functions, I think th.at is a distinction.

15 MR. HA,gTINGS: Mr. McConville, would you

16 say that in the initiative petiCion, you're

17 distinguishing what Newburgh Heights did and

ig what Brecksville did because it was enacted

19 by the council, memhers of the existing

20 council?

21 MR. MGCONVILLE: Correct. And I'm

22 specifically addressing the home rule,

23 because I think there are a set of facts the

24 home rule argument cuts the other way and the

25 provision in the Constitution and an analysis 57

of our facts protects our Council, You have

2 to argiie that Council doesn't have the right

to pass the ordinance that just passed.

4 MR. HASTINGS: But just, I would

y, just ask this for purposes of

^ discussion, doe's home rule 1h. Brecksville

7 permit reaicients to put petitions on

B distingi.iishing this one? Can they do that

and have something voted on?

MR. MATTY: Yes.

But you would say that 11 MR. HASTINGS:

12 this petitiorl in this case --

13 MR. MATTY: Is laeyond the authority

19. under the Ccinstitution.

15 MR. HASTINGS: I'tn not going to ask Yoix

to comment about your --

17 MR. MATTY: Thank you.

18 MR. HASTINGS: Thank you. Did you want

19 to add in something? Ma'am, you may come up

20 and introduce yourself.

21 LORI: Thank you. My name is Lori, and I am a resident of Brecksville. I also was 22

23 involved in the petition. And I just want tto

24 make an opi:nion about the need for having

25 this Democracy Day, to.basically force the 58

City to show transparency. Because S

ved some messages trecause he said that voted the City voted, the Cr:s'iancl

urzanamously against our petition, but yet. ona

of their Council members was my first sa.g'ier

on mypet.ition. So that shows up some red

flags for me and somequestions about whether

or not it really was unanimous. Thank you.

9 MR. HAST'INGS: Thank yotii very much.

MR. WITT: Can I be heard for about 30

seconds?

MR. HASTINGS: Yes• Come on sir and

3! tyou can be heard too, i!a'am.

14, MR.. WITT: My name is David C9itt. I..

15 live in Brecksvslle, and Irm a supporter of

16 the petition. I did not intend to speak, but

17 I wanted to address one of the legal aspects lg of this. I believe that if the Board defeats

19 the ability of this issue to go on the

20 ballot, that essentially you're saying the

21 community center can decide then to talk

22 about things like whether they're going to

23 have a McDonald's, rather than issues that

24 have both immediate local effect, campaign

25 financing and national effect. 59

I have looked at the case law as well,

and frankly, I think there is rea,1 ambiguity

as to what is permitted, but there is no case

in Ohio that stands for the proposition that

a community cannot raise funds to have its

City Council conduct a Dernocracy Day, a

YZeari,ng on an issue that impacts bot'h locally

$ and nationally. There is no case law on that

g point. The Rhodes case doesn't directly

14 confront th.at,

11 And given t.hrat; I would urge you to deny

12 the prohibition here of having this oh the

13 ballot. I think this..is an issue for the

14 Supreme Court when it is not -- when there is

15 no road map as to where to go on this.

16 respectfully submit that you honor the

17 ability of we, the citizenfi of Brecksville, is to take this to the i?allot.

19 M£t. HASTTNGS:You would agree with me,

20 Mr. Witt, that this is just the bo-ginnin

21 this, &rqumernt, would you?

22 MR. WITT: Yes, I would.

23 MR, HASTINGS: Thankyou. Yes ma'am

24 MS. PETSCHE: Hi, my zSame is Rose

25 Petsche, and I'm the troublemaker who started 60

this initiative. I thought I should just say

2 when we were contemplating Democracy Day,

when it was mentioned that there is no

xycord, well, I th.ink we always take minutes

of the meeting, and the thought was to allow

people to gather together to educate each

otherand to:raise our awareness ofwhat's

going on in out' commueiity. Because in

Brecksville we have the big VA Center that

10 went up, we don't know what is goigg to

11 happen with the grant potholes. We don't

know what kind of money is going to come in,

: kicid of influence it will have on our

14 representatives in the City. .

Ancl the otlier thi,ng is, when we direct

the Mayor, we are not asking him to amend the

17 Constitution, We are just Saying that this

18 is the feeling of the people of Brecksville

19 and this is how we amend out Constitutican,

20 isn't it? It's a collective voice to say,

21 here we are, hear us. There is a problem in

22 our democracy, so by you -- if you don't

23 us to have it on the ballot, it seems

24 to me you're shutting down the grass-root

voices that we need to keep our democracy 61

vibrant. So that's a17 I have to say. Thank

2 you. (Applauae)

MR. HASTINGS: Thank you all for your

comments on this 3sstie. As I point out, we

5 are all sworn to uphold the law.. I have

particular feelings about this, and I can`t

say that I understand your position on this.

y position, the law is cant'rolSing here.

The Rhodes case, Welch, I know it's not

10' binding, it doesn't have precedential values.

Additionally, I just want to comment in

12 regards to, we don't get overturned all the

time. I have been here five years now and I

14 don't think we have ever been overturned.

15 But I know what's going tohapperi here. I'm

Ito make a motion to uphold the protest

7 the City of Brecksville has set forth here.

18 Mr. McConville, in regards to Newburgh

I°Ieights, we could do this spontane as a

20 Hoard, We are the gatekeepers of what can

21 get on or can't get on if we feel it's

22 contrary to the law.

23 I do believe that Rhodes is prevailing

24 and Welch has a lot of significance, makes

25 some significant sense in regard to this 62

I matter. I may well be wrong, but I'm going

2 to make a motian to not let the Newburgh

3 Heights issue go on the ballot, and uphold

4 the BrecksvilJ:e protest. If there is a

5 second.

6 MS. SU'PfTEFtLAND: Second.

7 MR. HASTINGS: Thank you, Mayor

Sutherlartd. Are there further discussions

with my Board members"?

0 MR. NiGNAIRt I agree with the Chair.

think he may well be wrong. I may be well

ing to support e 2 wronq as we7.l. I`

13 n. I think all of what's been said,

14 would agree wi.th Mr. Witt. I don't think

15 it's clear what the law is. I think R'hodes

16 does not control. My sense is, as I said, I

17 think sqme smart lawyers rea:d Rhodes and la tried to think of a way around it, and they

19 came up with this process to directly order

20 their local officials to have -- hold a

meeting, etc.

22 I am m'ore conoerned about the second

23 piece of both those ordinances> Writing

24 these letters, etc. I agree that the Welch

25 case doesn`t control because it's from a 63

1 different. 7ura.sdiction., but I think its

2 rationale is it came to Rhodes, Sc I am more

^ concerned about the second half of both those

4 ordinances. But my own vi_ew

5 clear, and when something is not clear we

6 should let it go to the ballot. 5o I will

7 cappose the motion.

8 MS. CflAPPELL: I would echo those

9 comments. I thought it was a s:tUch more

10 clear-cut case before, you know, I heard the

1i commentS and the arg4iment5 on the other sitie„

12 and I really am a believer that absent of

some very clear legal aut.hority, we should

allow matters, issues, candidates to go to

15 the ballot. And it's for the voters really

3.6 to decide.

17 You all have the legal opinion now. I

would have to take a.n issue with the

conclusion expressed that somehow the efforts

are window dressingr or that somehow there is

an attempt to circumvent the holding of

22 Rhodes. I heard very clearly fro.m the people

23 that spoke today that that's not the intent

24 at all, and so I'm struggling. There is no

25 clear legal authority, in my view. I do 64

think that I tend to err on the side of

2 letting the voters decid'e. And I won't be

able to support the motion as well.

(Applause)

MR. HASTTNGS: Are there any comments or

questions on the matter? Okay. I will take

a vote on the n ion.

CHAPPELL: Are we doing Brecksville

9 first, or which one is this?

10 MR. MCNAIR: Hrecksville first, then

11 MR. HASTINGS: I thought we wou:ld do

12 both at the same time. All those in favor of

13 my motion, signify by saying aye.

19 N1S. SL)THEEt'LAND; Aye.

15 MR. HASTINGS: Aye.

16 MR. HASTINGS: All those opposed?

17 MS. CHAPPELL: Qpposed,.

18 MR. MCNAIR: Opposed..

19 MR. HASTINGS: So we have a tie vote.

20 What happens is we have to certify it through

21 the Secretary of State to break that tie

22 vote, at which time lTe'll do that. And then

23 the parties that don't agree with his

24 decision that would be they'll reserve to

25 the court and let the c.ourt decide whether 65

this a matter that should be oti the ballot.

So that!s the process for it. It will be

expedited because tlme is of the essence.

4 Thank youal.l for coming down and

5 sharing with us your thoughts and nommerlts.

25 66

1 C E R T I F T C A T E

5 It Chana Margareten, a Stenographic Reporter, do

6 hereby certify that Z attended the foregoing proceedings

v and wrote them in their entirety in Stenotype, which was

8 subsequently transcribed into typewriting by means of

9 computer-aid'ed traziscriptizin under directio.n, and that

10 the foregoing excerpt transcript pf Proceeding:s is a

true and correct,exderpt transcript eedings.

Si.gne,d this 20th day of Septemberr, 2012

Mizanin reporting Service, Inc.

575a Granger Road

20: 360 2ndependence Tower

21 Tndepe.ndence, Ohio 44131