IN THE GREENE COUNTY COMMON PLEAS COURT

XENIA, OHIO
CIVIL DIVISION

XXXXXXXXX ) Case No.

XXXXXXXXX )
XXXXXXXXX )
) Judge:
Plaintiff, )
v. )
)
City of Xenia )
101 N. Detroit St. ) COMPLAINT
Xenia, OH 45385 )
)
Xenia City Council )
101 N. Detroit St. )
Xenia, OH 45385 )
)
Xenia City Manager )
101 N. Detroit St. )
Xenia, OH 45385 )
)
Defendants. )
)

Now comes Plaintiff X for his cause of action against City of Xenia, Xenia City Council

and Xenia City Manager, collectively “Defendants,” alleges and says:

Factual allegations

1. The City of Xenia is an Ohio municipal corporation as classified by the Ohio

State Constitution, Article XVIII, Section 1 and is bound by general and specific

provisions set forth in Title VII of the Ohio Revised Code.

2. Defendants are not Political Action Committees, campaign committees, political

contributing entities, political parties, or legislative campaign funds registered

with the Greene County Board of elections, and have not completed form 30-D,

“Designation of Treasurer” as prescribed by the Ohio Secretary of State on

07/2005.

3. Defendants are actively involved in campaigning, marketing, publishing, printing

individually and through proxies, for the purpose of passing a proposed ballot tax

levy issue, known as Issue 7.

4. Pursuant to Ohio Administrative Code Title 111, a ballot or levy initiative is

subject to regulations similar to an individual candidate or party representative.

5. Plaintiff is a resident of the City of Xenia, is subject to and directly affected by

current taxing authority, income tax levy and city management practices and

methodologies created and enforced by the Defendants.

6. On or about July 23, 2009, staff employed by the Defendants unveiled a

document titled “Securing Xenia’s Future,” marked “Exhibit A,” which informed

the public that “the budget is balanced and the city is in good financial standing.”

7. On or about August 17, 2009, Defendants issued a press release, marked “Exhibit

B,” announcing that they will “approach the community with a request for

additional tax funding early next year.”

8. On or about October 28, 2009, Defendants issued a press release, marked “Exhibit

C,” in which it informed the public that Wright State University has been retained

in order to conduct a phone survey, which would assist Defendants with “setting a

course for Xenia’s future.”

9. During the month of December 2009, Wright State University released the results

of the aforementioned survey in a document titled “Citizen Perception Survey,”

marked “Exhibit D.”

10. The aforementioned Wright State University survey included questions related to

taxation, such as “which types of ballot initiatives they would support in the future

if the city were to seek additional funding?”

11. The aforementioned Wright State University Survey contained biased questions

(As referenced below in rhetorical paragraph 15).

12. Defendants had a hidden agenda and used the aforementioned “Citizen Perception

Survey” as a means to illegally bypass Ohio and Federal election law and use

taxpayer funds to assess, align and create an election strategy for facilitating the

passing of a tax levy and ballot initiative during the May 4, 2010 election.

13. On or about January 7, 2010, Defendants held a special session meeting aimed at

discussing a “potential levy.” Meeting minutes are attached and marked “Exhibit

E.”

14. That during the aforementioned meeting held on January 7, 2010, Councilman

Louderback said, “… to go from 1.75 to 2.25 percent income tax is not out of the

question; he felt people are tired of paying property taxes and the survey

indicates that. An income tax is a better way to go [we] have to pay attention to

what the survey said.”

15. That during the aforementioned meeting held on January 7, 2010, Councilwoman

Felton said, “…she was called to take the survey, and she felt the questions were

very biased”
16. That during the aforementioned meeting held on January 7, 2010, Mayor Bayless

said “ [we] need to keep the survey results in the forefront and figure out a way

to present this information to the citizens of Xenia.”

17. On or about January 14, 2010, Defendants passed ordinance 10-02 calling for an

increase of the income tax levied on Plaintiff from a current rate of 1.75% to a

rate of 2.25%; the proposed increase was assigned the nomenclature of “Issue 7”

by the Greene County Board of Elections and will be placed on the ballot for the

May 4, 2010 election.

18. On or about January 30, 2010, Defendants held a Special Budget Session meeting

in which they discussed appropriation of funds for a consulting opportunity with

Avakian Consulting, a public policy and political marketing firm located at 1215

Polaris Parkway in Columbus, Ohio to “provide public relations and education

services to the City of Xenia.” Minutes of the meeting are marked “Exhibit F.”

19. That during the aforementioned Special Budget Session meeting, Defendants

colluded to illegally bypassing Ohio election law by using Avakian Consulting as

a proxy to promote, market and push ballot Issue 7. Councilman Louderback said

“…he was a little confused. Was the consultant hired to help pass the levy, to

help enhance the city’s image, or a combination of both? Mr. Percival said the

better the city’s image and the more information that is out there, the better the

opportunity to pass the levy.”

20. That during the aforementioned Special Budget Session meeting, Defendants

colluded to illegally bypassing Ohio election law by using Avakian Consulting to

help pass the levy. Councilman Smith asked if “the goal was to pass the levy or
 improve the city’s image. Mr. Percival said both. Councilman Smith asked what

the number one priority was. Mr. Percival did not think one could be done

without the other; the priorities are completely and totally tied together.

Councilman Smith said some Council members would love to work on the levy

campaign, but they can’t do that. Mr. Percival thought there would be a role for

Council to lay through the video and other things. The image, marketing, and

promotional campaign will be directly tied to the levy campaign; you can’t

separate the two. President Felton said Council is not allowed to knock on

doors to try to sell the levy, but they can talk to various groups about the levy.

Councilwoman Caupp said your mother, your preacher, etc., can talk about the

levy.”

21. That during the aforementioned Special Budget Session meeting, Defendants

colluded to illegally bypass Ohio election law by using Avakian Consulting to

help promote, advertise and push the levy to residents: “Mayor Bayless asked if

there were any fact sheets. Mr. Percival said yes; one will be mailed with the next

utility bills. Mayor Bayless asked Mr. Bazelak if he could e-mail it to her because

she will be speaking at a group that she felt would ask questions. Mr. Bazelak

said he could do that, but they wanted to first run it be the consultant to make

sure it is sending the proper message.”

22. On or about February 2, 2010, Defendants entered into a contractual agreement

for the amount of $25,000 with Avakian Consulting. Copy of the contract is

marked as “Exhibit G.”

23. That the aforementioned contract with Avakian Consulting was illegally and

fraudulently made without following competitive bidding requirements

established in Defendants’ own procedural code and city law, potentially

defrauding and putting Xenia taxpayers at a financial disadvantage.

24. That the aforementioned contract with Avakian Consulting was made for the

purpose of advertising and ensuring the passage of the ballot initiative, known as

Issue 7.

25. On or about January 28, 2010, Defendant’s contacted Joel Gagne of Avakian

Consulting via e-mail, marked as “Exhibit H,” making it evident that the sole

purpose of the Avakian engagement with the Defendants was to promote the tax

increase to Xenia residents; Defendants’ agent Michelle Johnson wrote, “On

behalf of the Levy Committee, I am excited to move forward with our campaign.

Chris [Berger] will send you a text this evening after the Council meeting to let

you know what they decide. In the spirit of thinking positively, please find

attached or listed below are the items we discussed in the meeting.”

26. On or about February 1, 2010, Defendants’ agent Michelle Johnson sent an email,

marked “Exhibit I,” to Avakian Consulting asking for a review of a levy bullet

point flyer in order to meet deadline for utility bill mailing: “Congratulations on

being awarded the contract…have you had a chance to review the bullet-point

flyer? We have to move on that ASAP to meet the utility bill vendor’s timeline.”

27. On or about February 10, Joel Gagne of Avakian Consulting sent an e-mail

message, marked as “Exhibit J,” to Defendants’ employee Michelle Johnson

recommending that “Legal Council said the City Council can not mention the
 levy. Did he/she write anything up in regards to this? If yes, can you please send

it to me?”

28. On or about February 11, 2010, Defendants’ agent Michelle Johnson sent an e-

mail message, marked as “Exhibit K,” to City Management with attachments

from Avakian Consulting titled The Do’s and Don’t’s and Talking Points,

writing, “I have also attached the final version of the buletpoint flyer that is being

sent out tomorrow to all Xenia residents in their utility bills (almost 10,000!) …

Finally, the slogan Joel [Gagne] is recommending for the campaign is Keeping

Xenia Safe.”

29. On or about February 12, 2010, Avakian Consulting helped Defendants create an

insert or flyer, marked as “Exhibit L,” which was printed on Xenia City stationery

and was used by Defendants to gain support for the passage of proposed tax

increase from voters via the “safety factor” advised on by Avakian Consulting;

the flyer was mailed to Xenia City residents together with monthly utility bills.

30. On or about February 26, 2010, Defendants, with the help of Avakian Consulting,

created an internal document titled “Talking Points – NOT FOR

REDISTRIBUTION,” marked as “Exhibit K” which is being used as media

talking points.

31. That information contained in the “Talking points” document aforementioned is

being actively distributed by the Defendants via verbal, written and electronic

means for the purpose of passage of a ballot initiative, in violation of Ohio

Election law.

COUNT I.
 VIOLATION OF TITLE VII

32. Plaintiff incorporates Rhetorical paragraphs 1-31 as if fully set out herein.

33. Pursuant to Ohio Revised Code Chapter 715 and Ohio Revised Code Chapter 717

Defendants have no general or specific authority to carry out surveys for the

purpose of passing, promoting or advertising a future tax levy or a particular

ballot initiative.

34. Pursuant to Ohio Revised Code Chapter 715 and Ohio Revised Code Chapter 717

Defendants have no general or specific authority to disburse taxpayer funds for

the purpose of advertising, promoting or advocating the passage of a particular

ballot initiative, candidate or political party either directly or indirectly through a

third party serving as proxy for Defendants.

WHEREFORE, the Plaintiff X prays as Claimant for judgment against the

Defendants and requests that the Court:

(a) Permanently enjoin Defendants from overt and covert surveying,

monitoring, marketing, advertising and other activities related to

“Issue 7” aimed at encouraging Plaintiff and other Xenia City residents

to vote in favor of “Issue 7.”

(b) Permanently enjoin Defendants from disbursing public funds for the

purpose of advertising, promoting or selling a particular ballot

initiative, candidate or political party either directly or indirectly

through a third party serving as proxy for Defendants.

(c) and such other and further relief as the Court deems just and proper.
 COUNT II.

VIOLATION OF TITLE XXXV

35. Plaintiff incorporates Rhetorical paragraphs 1-31 as if fully set out herein.

36. Defendants are in violation of Ohio Revised Code 3517.105 by engaging in

campaigning, promoting, advertising or encouraging Plaintiff or the public to vote

in favor of a particular ballot initiative.

37. Defendants are in violation of Ohio Revised Code 3517.13 by failing to file a

complete and accurate statement as required under division (A)(1) of section

3517.10 of the Ohio Revised Code.

WHEREFORE, the Plaintiff X prays as Claimant for judgment against the

Defendants and requests that the Court:

(a) Permanently enjoin Defendants from creating promotion

material, flyers, emails, telephone calls and any other electronic

communication used to promote to Plaintiff and the general

public a specific candidate or a ballot initiative.

(b) Permanently enjoin Defendants from using public utility billing

mailings and Defendants’ television channel as vehicles for

advertising to Plaintiff and the general public a specific

candidate or a ballot initiative.

(c) and such other and further relief as the Court deems just and

proper.

COUNT III.
 MISAPPROPRIATION OF FUNDS

38. Plaintiff incorporate Rhetorical paragraphs 1-31 as if fully set out herein.

39. Defendants misappropriated public funds by misrepresenting the municipal

corporation’s situation to the public and spending $4,000 of public funds on the

creation of a biased survey for the purpose of supporting Defendants’ passage of a

proposed tax levy increase.

40. Defendants misappropriated public funds by spending $25,000 of public funds

and entering in a no-bid contractual relationship with Avakian Consulting under

false pretenses through an “emergency” spending resolution.

WHEREFORE, the Plaintiff X prays as Claimant for judgment against the

Defendants and requests that the Court:

(d) Declare the existing contractual agreement between Defendants

and Avakian Consulting null and void in its entirety.

(e) Temporarily enjoin Defendants from further appropriation of

public funds towards either Avakian Consulting, or Wright

State University.

(f) and such other and further relief as the Court deems just and

proper.

COUNT IV.

FRAUD

41. Plaintiff incorporate Rhetorical paragraphs 1-31 as if fully set out herein.

42. Through a chain of fraudulent actions, for the past 10 months, Defendants

fraudulently led Plaintiff and general public to mistakenly assess the city’s
 financial situation as “dire” or the city being in a fiscal “emergency” for the

purpose of creating panic and facilitating the passage of a ballot initiative, known

as “Issue 7.”

43. Through a chain of fraudulent actions and under false pretense, Defendants built

up support, and facilitated the passage of Tax Levy Ordinance 10-02.

WHEREFORE, the Plaintiff X prays as Claimant for judgment against the

Defendants and requests that the Court:

(a) Temporarily enjoin Defendants and the Greene County Board of

Elections from placing “Issue 7” on the ballot for the May 4, 2010

election.

(b) and such other and further relief as the Court deems just and

proper.

Respectfully submitted

___________________________