Beruflich Dokumente
Kultur Dokumente
De Marco (0041153)
Jennifer J. Morales (0076835)
Terence R. Coates (0085579)
.John P. Curp (0064 782)
Counse/.fbr Plaintiff
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
-and-
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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
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
3. The City of Cincinnati is a municipal corporation organized under the laws of the
State of Ohio.
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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.
Rosenberg's replacement on the Park Board and whom the Council purported to confirm by a 5-4
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
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-
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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
14. Mayor Cranley voluntarily appointed Rosenberg to the Park Board, and Council
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
17. On information and beliet: on December 9, 2017, counsel for Park Board
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.
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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
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:
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
recommendation to Council for the appointment of Goetz to the Park Board "for a six-year term,
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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
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)
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
25. There is no legal or factual basis for the City Solicitor's opinion that Rosenberg's
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,
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"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
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
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
COUNT I
DECLARATORY JUDGMENT
PURSUANT TO R.C. CHAPTER 2721
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.
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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
(b) Unless the Mayor is filling an unexpired term on the Park Board. the Mayor
(c) Under Article III, Section 2, of the Charter, a person appointed to the Park
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
(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
(g) Mayor Cranley and the current Council lacked the authority to prospectively
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COUNT II
PRELIMINARY AND PERMANENT INJUNCTION
PURSUANT TO R.C. CHAPTER 2727
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.
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
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
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;
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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,
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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'
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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.
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ty Autry, CMC
of Lound/
January 7, 2015
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.
Exhibit 1
City of Cincinnati Melissa Autry, CMC
Clerk q/ C01111dl
Council
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
CINCINNATI
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city of HOOE • COl!iTACT FAQS
CINCINNATI
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Member I Term Begins Term Expires
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