Paul M.

De Marco (0041153)
Jennifer J. Morales (0076835)
Terence R. Coates (0085579)
.John P. Curp (0064 782)
Counse/.fbr Plaintiff

IN THE COURT OF COMMON PLEAS

HAMILTON COUNTY, OHIO

DIANNE M. ROSENBERG,
individually and in her official capacity as
a Commissioner of the Board of Park Case No. - - - - - - -
Commissioners (~/'the City <~lCincinnati
950 Eden Park Drive
Cincinnati, Ohio 45202 Judge_ _ _ _ _ _ __

Plaintiff,
vs. PLAINTIFF'S VERIFIED COMPLAINT
FOR INJUNCTIVE AND OTHER RELIEF
CITY OF CINCINNATI, OHIO
City lfall
80 I Plum Street
Cincinnati, Ohio 45202
COPY FILED
-and- CLERK OF COURTS
HAMILTON COUNTY

.JOHN CRANLEY, in his cdficial

capaci~v as lvfayor <d'the City <?/'Cincinnati DEC 22 2017
City Hall
801 Plum Street
AFTAB PUREVAL
Cincinnati, Ohio 45202 COMMON PLEAS COURTS
-and-

MELISSA AUTRY, in her <~fficial

capacity as Clerk of Council of the
City of Cincinnati
City Hall
80 I Plum Street
Cincinnati, Ohio 45202

-and-

HARRY BLACK, in his <?fftcial capacity

as City A1anager <?fthe Ci~v <?/'Cincinnati,
City Hall
80 I Plum Street
Cincinnati, Ohio 45202
 -and-
DAVID MANN, in his official capacity as
a member <~lthe City (~f Cincinnati
Council,
City Hall
80 I Plum Street
Cincinnati, Ohio 45202
-and-
KEVIN FLYNN, in his <dJicial capacity
as a member <?f the City (~f Cincinnati
Council,
City Hall
80 I Plum Street
Cincinnati, Ohio 45202
-and-
AMY MURRAY. in her official capacizv
as a member of the City of Cincinnati
Council,
City Hall
801 Plum Street
Cincinnati. Ohio 45202
-and-
CHRISTOPHER SMITHERMAN, in his
<?fficial capacity as a member <~lthe City <?f
Cincinnati Council,
City Hall
80 I Plum Street
Cincinnati, Ohio 45202
-and-
CHARLIE WINBURN, in his <?fficial
capacity as a member of the City <?l
Cincinnati Council,
City Hall
801 Plum Street
Cincinnati, Ohio 45202
-and-
JAMES GOETZ
2 I 0 lfosea A venue
Cincinnati, Ohio 45220
Defendants.

2
 Plaintiff Dianne M. Rosenberg ("Plaintiff' or "Rosenberg''), in her individual capacity and

in her capacity as a Commissioner of the Board of Park Commissioners of the City of Cincinnati

("the Park Board''), brings this action for declaratory and injunctive relief against Defendants City

of Cincinnati ("City''), John Cranley, Melissa Autry, HaiTy Black, David Mann, Kevin Flynn,

Amy Murray, Christopher Smithe1man, Charlie Winburn, and James Goetz (collectively,

"Defendants'').

INTRODUCTION

l. This action seeks to stop Defendants' and other City officials' unlawful scheme to

oust Rosenberg from her rightful public office as a Commissioner on the Park Board and their

impermissible attempt to install James Goetz ("Goetz'') in her place. Rosenberg's seat on the Park

Board is not yet vacant and will not be vacant prior to the expiration of Mayor Cranley's term and

the terms of the current members of Cincinnati City Council (''Council") who purported to confirm

Goetz's sudden appointment on December 20, 2017 by a 5-4 vote. Thus, Goetz was appointed by

the Mayor and confim1ed by Council in violation of Ohio law and the Charter of the City of

Cincinnati. Rosenberg seeks declaratory and injunctive relief preventing Defendants from carrying

fo1th this unlawful scheme and illegally installing Goetz in Rosenberg's office.

PARTIES

2. Rosenberg is a duly appointed and qualified Commissioner of the Park Board.

She has served as a Commissioner since January 7, 2015, and as President of the Park Board since

December 15, 2016. Rosenberg serves and, at all times, has served on the Park Board without

compensation and is not an employee of the City.

3. The City of Cincinnati is a municipal corporation organized under the laws of the

State of Ohio.

3
 4. Defendant John Cranley ("Mayor Cranley'' or •'the Mayor") is the Mayor of the

City of Cincinnati.

5. Defendant Melissa Autry (''the Clerk of Council") is the Clerk of Council of the

City of Cincinnati.

6. Defendant Harry Black is the City Manager of the City of Cincinnati.

7. Defendant James Goetz is an individual whom the Mayor purported to appoint as

Rosenberg's replacement on the Park Board and whom the Council purported to confirm by a 5-4

vote on December 20, 2017.

8. Defendants David Mann, Kevin Flynn, Amy Murray, Christopher Smitherman, and

Charlie Winburn are the current members of Council who voted to confirm the Mayor's

appointment of Goetz to the Park Board.

JURISDICTION AND VENUE

9. This Court has jurisdiction over this matter under Ohio Revised Code §§ 2727.02

and 2727.03. Venue properly lies within this Court pursuant to Ohio Civil Rule 3(B)(4).

FACTS

10. The Park Board is an independent, five-member board created by Article VII,

Section I, of the Charter of the City of Cincinnati ("the Charter''). The Park Board appoints its

employees and has control and management of the City's parks and parkways.

l l. Appointments made by Cincinnati's mayor to the Park Board are subject to the

advice and consent of the Council. See Article VII, Section 1, and Article lII, Section 2, of the

Charter.

12. Under the Charter, Cincinnati's mayor appoints Park Board members to full six-

year terms that begin on the date their appointment is confirmed by Council under its advice-and-

4
 consent authority. See Article VII, Section 1, and Article III, Section 2. of the Charter.

13. The Charter also requires the mayor to fill all vacancies on the Park Board for

unexpired terms. See Article VIL Section I. of the Chatter.

14. Mayor Cranley voluntarily appointed Rosenberg to the Park Board, and Council

unanimously confirmed her appointment. on January 7, 2015.

15. The sole record from the Clerk of Council prepared contemporaneously with

Council's confirmation of Rosenberg's appointment states that her term began on January 7, 2015

and will expire on January 7, 2021-exactly six years after she was appointed. See Exhibit l.

16. Until recently, the City's website likewise stated that Rosenberg's term on the Park

Board began on January 7, 2015 and expires on January 7, 2021. At some undetermined time

before December 4. 2017, however, the City's website was covertly altered to say that Rosenberg's

term expires on December 31, 2017.

17. On information and beliet: on December 9, 2017, counsel for Park Board

Commissioners Susan Castellini ("Castellini'') and Robe1i D.H. Anning ("Anning'')-who.

together with Rosenberg, have been spearheading efforts to define and document in a

memorandum of understanding (''MOU'') the relationships and interactions between the Park

Board, the City, and the non-profit Cincinnati Parks Foundation-spoke with the Mayor about the

status of the MOU. The Mayor said that negotiations concerning the MOU would restart in the

new year, after the purported expiration of Rosenberg's term and the appointment of a new

commissioner to the Park Board. Counsel for Castellini and Anning asked the Mayor for any

documentation supporting his position that Rosenberg's term ends on December 31, 2017.

The Mayor did not identify or provide any such documentation at that time in response to that

request.

5
 I 8. On information and belief, on December 11, 20 I 7, counsel for Castellini and

Anning again spoke with Mayor Cranley about restarting negotiations on the MOU, and the Mayor

expressed that the negotiations should not include Rosenberg because her term would soon expire.

When asked once again for supporting documentation, the Mayor referred to the current, covertly

altered version of the City's website. Counsel for Castellini and Anning told the Mayor that

contrary evidence existed and. at the Mayor's request, sent him a copy that day of the Clerk of

Council's letter dated January 7, 2015 (Exhibit I) confirming the appointment of Rosenberg to the

Park Board for a six-year tem1 ending January 7, 2021.

19. On information and beliet: on the morning of December 13, 2017. Mayor Cranley

forwarded an email from his private Gmail account to Castellini and Anning·s counsel, which

attached a letter to the Park Board from the Clerk of Council dated December 12. 2017 (Exhibit 2),

stating:

To Whom It May Concern: I am writing to correct a previous

correspondence sent to you from my office dated January 7, 2015
regarding the appointment of Dianne Rosenberg to the Cincinnati
Board of Park Commissioners. The Mayor's office has advised me,
and this is to confirm, that Dianne Rosenberg is filling the unexpired
board term of Cathy Crain, which ends on December 31, 2017.
Ms. Rosenberg will continue to serve until a new appointment is
made by Mayor Cranley and confirmed by City Council.

20. Also on the morning of December 13 1h. Mayor Cranley sent an email to Rosenberg

thanking her for her service on the Park Board and asking if there was anything she wanted him to

say about the end of her term.

21. On or about December 13, 2017, Mayor Cranlcy submitted a written

recommendation to Council for the appointment of Goetz to the Park Board "for a six-year term,

effective January I, 20 I 8."

6
 22. The Mayor's nomination of Goetz was on the agenda for Council's December 13,

2017 meeting. At that meeting, one Council member observed that the end date of Rosenberg's

term as reflected on the City's website had been changed from January 7, 2021 to December 3 L

2017. Mayor Cranley said the Council member's assertion was "not true:' Several members of

Council asked for a copy of the legal opinion that the Mayor cited as the basis for his position that

Rosenberg's term ends on December 31, 2017, and Council's vote on the appointment of Goetz as

Rosenberg's replacement was held until the following Council meeting.

23. Contrary to Mayor Cranley's December 13th statement, archived screen shots of the

City's website show that someone changed the end date of Rosenberg's term on the webpage

available at

from January 7, 2021 to December 31, 2017. See Exhibit 3 (showing "O 1/07 /2021 '' as the end date)

and Exhibit 4 (showing "12/31/2017" as the end date).

24. Following the Council meeting on December 13, 2017, the City Solicitor circulated

her legal opinion of the same date regardingthe expiration of Rosenberg's tetm. Three assumptions

underlie the City Solicitor's opinion that Rosenberg's term will expire on December 31, 2017:

(i) that Rosenberg filled the unexpired term of former Park Board Commissioner Cathy Crain,

(ii) that·'[ o]n February I, 2012, Cathy Crain was appointed by Mayor Mallory to the Park Board

with a term that expires on December 31. 2017,'' and (iii) that ''[t]he ending date of the term did

not change and remains December 31. 2017 ."

25. There is no legal or factual basis for the City Solicitor's opinion that Rosenberg's

term expires on December 31, 2017.

26. There is no evidence that former Park Board Commissioner Cathy Crain filled an

unexpired term. In fact, at the Council meeting on December 13. 2017, the City Solicitor stated,

7
 ---------------------------

"Of course, Ms. Crain was appointed after Roscoe Fultz's term expired. She was appointed to a

full term. He had held over:' (See Video of Council Meeting of 12-13-17, which is publicly

27. Moreover, a second legal opinion of the City Solicitor dated December 20, 2017

acknowledges that "there is an argument that the Crain term expires six years from the date of the

Crain appointment which was February 1, 2012.''

28. On December 20, 2017, the Mayor submitted to Council for its advice and consent

a revised appointment letter for Goetz. That letter omitted any reference to a January I, 2018

effective date, and stated instead that Goetz's six-year term on the Park Board ''will begin upon

the expiration of the unexpired term of Cathy Crain, which is currently being filled by Dianne

Rosenberg:' At the Council meeting that afternoon, the members of Council confirmed Goetz's

appointment by a vote of 5-4.

29. The terms of the Mayor and all nine Council members will expire on January 2,

2018. The Mayor, six current members of Council, and three new members of Council will be

sworn in to new terms in office beginning on January 2, 2018.

COUNT I
DECLARATORY JUDGMENT
PURSUANT TO R.C. CHAPTER 2721

30. All other paragraphs of this Complaint are incorporated by reference.

31. Under Ohio law, there is no prospective appointment power where the terms of the

appointing officer-in this case, the Mayor-or the confirming body-in this case, the current

Council-end before the office they are purporting to fill becomes vacant. State ex rel. Norman v.

Viebranz, 19 Ohio St.3d 146, 148 (1985). Such an appointment is, therefore, void ab initio. Jd. at

149.

8
32. Plaintiff seeks a declaratory judgment on her rights and status as follows:

(a) Except when filling an unexpired term, the Charter grants the Mayor the

power to appoint Park Board Commissioners for terms of no more and no

less than six years;

(b) Unless the Mayor is filling an unexpired term on the Park Board. the Mayor

is legally obligated under the Charter to appoint an individual to a full six-

year term on the Park Board;

(c) Under Article III, Section 2, of the Charter, a person appointed to the Park

Board serves until a successor is appointed by the Mayor and confirmed by

Council;

(d) In no event could Plaintiffs term on the Park Board expire earlier than

February l, 2018, six years after former Park Board Commissioner Cathy

Crain was appointed and confirmed;

(c) The current terms of the Mayor and members of Council expire no later than

January 2, 2018;

(t) Plaintiff's office as a Commissioner on the Park Board will not become

vacant until after the current terms of the appointing officer (the Mayor) and

the confirming body (Council) expire; and

(g) Mayor Cranley and the current Council lacked the authority to prospectively

name a successor to Plaintiff, and their attempt to do so on December 20,

2017 was void ab initio.

9
 COUNT II
PRELIMINARY AND PERMANENT INJUNCTION
PURSUANT TO R.C. CHAPTER 2727

33. All other paragraphs of this Complaint are incorporated by reference.

34. Defendants' attempt to install Goetz in Plaintiffs office and to recognize him as

the legitimate holder of Plaintiff's office, if permitted to go forward, would produce great and

irreparable injury to Plaintiff. There is a substantial likelihood that Plaintiff will succeed on the

merits of her declaratory judgment claim, Defendants will not be unjustifiably harmed by the

Court's granting of injunctive relict: and the public interest would be served by the injunction.

35. Plaintiff seeks a preliminary injunction, as well as a permanent injunction,

prohibiting Defendants from taking any steps to install Goetz in Plaintiff's office while she is the

incumbent and there is no vacancy on the Park Board, and from recognizing Goetz as the holder

of Rosenberg's seat on the Park Board until it is vacant.

PRAYER FOR RELIEF

Plaintiff requests that this Court grant the following relief:

A. Declare that, except when filling an unexpired term, the Charter grants the Mayor

the power, and legally obligates him, to appoint Park Board members for terms of

no more and no less than six years, and that a person appointed to the Park Board

serves until a successor is appointed by the Mayor and confirmed by Council;

B. Declare that in no event could Plaintiff's term on the Park Board expire earlier than

February 1, 2018, six years after former Park Board Commissioner Cathy Crain

was appointed;

C. Declare that the current terms of the Mayor and members of Council expire on

January 2, 2018;

10
 D. Declare that Plaintiffs office on the Park Board will not become vacant until after

the terms of the appointing officer (the Mayor) and the confirming body (Council)

expire;

E. Declare that the Mayor and Council lacked the authority to prospectively name a

successor to Plaintiff, and their attempt to do so on December 20, 2017 was void

ab initio;

· F. Enjoin Defendants from installing Goetz in Plaintiffs office while she is the

incumbent and there is no vacancy to be filled on the Park Board, and from

recognizing Goetz as the holder of Rosenberg's seat on the Park Board until it is

vacant; and

G. Award such other relief as is appropriate, including attorneys' fees, expenses, and

costs.

Respectfully submitted,

Paul . De Marco 041153)

Je fer J. Morales (0076835)
Terence R. Coates (0085579)
MARKOVITS, STOCK & DEMARCO, LLC
3825 Edwards Road, Suite 650
Cincinnati, Ohio 45209
Tel: (513) 651-3700
Fax: (513) 665-0219
Email: pdemarco@msdlegal.com
jmorales@msdlegal.com
tcoatcs@msdlegal.com

11
John P. Curp (0064782)
BLANK ROME LLP
1700 PNC Center
201 East Fifth Street
Cincinnati, Ohio 45202
Tel: (513) 362-8775
Fax: (513) 362-8768
Email: jcurp@blankrome.com

Counselfhr Plaint(ff'

12
 VERIFICATION

I, Dianne M. Rosenberg, having been duly sworn, depose and state that I have read the
foregoing Verified Complaint for Injunctive and Other Relief, and that the information stated
therein is factually true, and those factual matters which are stated upon information and belief are
believed to be true.

'1 sr
subscribed to and sworn before me thiscx_l_day of December, 2017.

13
 ty Autry, CMC
of Lound/

January 7, 2015

Cincinnati Park Board

2625 Reading Road
Cincinnati, Ohio 45206

To Whom It May Concern,

The Council of the City of Cincinnati, State of Ohio, confirmed the appointment of Dianne
Rosenberg to the Cincinnati Board of Park Commissioners. Ms. Rosenberg's term began on
January 7, 2015 and will expire on January 7, 2021.

Meliss Autry, CMC

Clerk of Council

Exhibit 1
City of Cincinnati Melissa Autry, CMC
Clerk q/ C01111dl
Council

Office of the Clerk 80 I Plum Street, Suite 308

Cincinnati, Ohio 45202
Phone (513) 352-3246
Fax (513) 352-2578

December 12, 2017

Cincinnati Park Board

2625 Reading Road
Cincinnati, Ohio 45206

To Whom It May Concern:

I am writing to correct a previous correspondence sent to you from my office dated January 7,
2015 regarding the appointment of Dianne Rosenberg to the Cincinnati Board of Parks
Commissioners. The Mayor's office has advised me, and this is to confirm, that Dianne
Rosenberg is filling the unexpired board term of Cathy Crain, which ends on December 31,
2017. Ms. Rosenberg will continue to serve until a new appointment is made by Mayor Cranley
and confirmed by City Council.

\;14
Meliss~,
/J,~- C C
Clerk of Council
City of Cincinnati

Exhibit 2

\V\Vw.cincinnati-oh.g<lV Equal Oppormniry Emplo~·i.:r

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