Xenia City Lawsuit

8/14/2019 Xenia City Lawsuit

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IN THE GREENE COUNTY COMMON PLEAS COURT

XENIA, OHIOCIVIL DIVISION

XXXXXXXXX ) Case No.XXXXXXXXX )XXXXXXXXX )

) Judge:Plaintiff, )

v. )

)City of Xenia )101 N. Detroit St. ) COMPLAINTXenia, 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 OhioState Constitution, Article XVIII, Section 1 and is bound by general and specific

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


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2. Defendants are not Political Action Committees, campaign committees, politicalcontributing 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, printingindividually 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 bycurrent 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 adocument titled Securing Xenias 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 ExhibitB, 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 ExhibitC, 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 Xenias future.


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9. During the month of December 2009, Wright State University released the resultsof the aforementioned survey in a document titled Citizen Perception Survey,

marked Exhibit D.

10.The aforementioned Wright State University survey included questions related totaxation, 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 atdiscussing a potential levy. Meeting minutes are attached and marked Exhibit

E.

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

15.That during the aforementioned meeting held on January 7, 2010, CouncilwomanFelton said, she was called to take the survey, and she feltthe questions were

very biased


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16.That during the aforementioned meeting held on January 7, 2010, Mayor Baylesssaid [we] needto keep the survey results in the forefrontand 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 anincrease 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, Defendantscolluded 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 citys image, or a combination of both? Mr. Percival said the

better the citys 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, Defendantscolluded to illegally bypassing Ohio election law by using Avakian Consulting to

help pass the levy. Councilman Smith asked ifthe goal was to pass the levy or


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23.That the aforementioned contract with Avakian Consulting was illegally andfraudulently 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 thepurpose of advertising and ensuring the passage of the ballot initiative, known as

Issue 7.

25.On or about January 28, 2010, Defendants contacted Joel Gagne of AvakianConsulting 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 contracthave you had a chance to review the bullet-point

flyer? We have to move on that ASAP to meet the utility bill vendors timeline.

27.On or about February 10, Joel Gagne of Avakian Consulting sent an e-mailmessage, marked as Exhibit J, to Defendants employee Michelle Johnson

recommending that Legal Council said the City Council can not mention the


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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 Dos and Donts 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 aninsert 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 isbeing 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.


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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 717Defendants 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 thepurpose 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.


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

3517.10 of the Ohio Revised Code.



(a) Permanently enjoin Defendants from creating promotionmaterial, 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 billingmailings 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 andproper.

COUNT III.


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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

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

false pretenses through an emergency spending resolution.



(d) Declare the existing contractual agreement between Defendantsand Avakian Consulting null and void in its entirety.

(e) Temporarily enjoin Defendants from further appropriation ofpublic funds towards either Avakian Consulting, or Wright

State University.

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

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 citys


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



(a)Temporarily enjoin Defendants and the Greene County Board ofElections 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 andproper.

Respectfully submitted

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Xenia City Lawsuit