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Finney Law Firm files suit to obtain Public Records related to Secret Payoffs made by Clerk of Courts Aftab Pureval

Author By Finney Law FirmPosted on

As part of his political “house cleaning” when he first took office, Aftab Pureval paid severance packages to outgoing employees and required that they sign non-disclosure agreements. Local government watchdog Mark Miller asked for copies of these records, only to be ignored by Aftab Pureval.

Now, six weeks after Pureval received the request, and with no response whatsoever from Pureval, Finney Law Firm filed suit to force the release of the requested records.

It is expected that the records will show that Pureval used attorneys other than his official statutory counsel in drafting these agreements, and that the agreements are legally unenforceable; that they were simply a means of coercing former employees into silence as he prepared his run for higher office.

Read the complaint below or click here to view it on Scribd.

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Finney Law Firm Files Suit for Public Records

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Today, Finney Law Firm filed suit against the self-proclaimed “gang of five” – PG Sittenfeld, Chris Seelbach, Wendell Young, Tamaya Dennard, and Greg Landsman – seeking production of public records they are withholding in violation of Ohio’s Public Records Law.

On April 9, 2018, Finney Law Firm submitted a public records request on behalf of Mark Miller, to each member of the “gang of five” seeking production of all communications between each of them and any other member of council from March 1, 2018 to March 19, 2018 regarding Harry Black or John Cranley.

This morning, attorneys for the City produced 10 pages of group text messages between all five members, but made clear that they refuse to produce text messages or emails other than the group-messages. As Cincinnati Enquirer attorney, Jack Greiner, told the Cincinnati Business Courier, this is contrary to the requirements of the Public Records Law, R.C. 149.43:

Jack Greiner, an attorney at Graydon Head & Ritchey who represents other Cincinnati media organizations in public records and open meetings matters, said state law requires that public records be kept, that communications between officials are a public record and text messages qualify as communications.

“The format shouldn’t matter,” Greiner said. “The city has a records retention schedule that would cover those. The city has to figure out how they’re going to retain that information and archive it.”

You can read the complaint below or on Scribd here.

 

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Cincinnati Releases Batch of Illegal Meeting Text Messages

Author By Finney Law FirmPosted on

This morning the City of Cincinnati released a collection of text messages exchanged between five Cincinnati Councilmembers that made up a series of illegal meetings regarding the question of whether and how to terminate the City Manager.

While the City has yet to produce all of the responsive records, this production demonstrates the need for our lawsuit and injunction to force compliance with the Open Meetings Act. Unfortunately, because the City continues to withhold additional records, our client will be forced to bring another suit against the City and the rogue members to force compliance with the Public Records Act.

You can read the text messages on Scribd or below:
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Ohio Sunshine Law: Finney Law Firm appeals to prevent secret ballots on legislative measures in Ohio

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Representing a Cuyahoga County community newsletter publisher, Finney Law firm has filed an appeal of the recent Eighth District Court of Appeals’ ruling in State ex rel. Meade v. Village of Bratenahl, et al.Case No. 2018-0440

Community newsletter publisher brings suit

In 2016, Pat Meade, publisher of MOREBratenahl a community newsletter focused on the community of Bratenahl, Ohio, in Cuyahoga County, brought suit against the Village Council for numerous violations of the Ohio Sunshine Law (R.C. 121.22).

Meade’s suit focused on secret ballot voting by the council as well as inaccurate and insufficient minutes by the council and its finance committee. The case presented a somewhat unaddressed issue of the Sunshine Law: can public bodies vote by secret ballot?

Prior authority

The almost universally instinctive answer is “No!” And indeed, the only caselaw or other authority on the subject also came down against secret ballot voting. In 2011, the Ohio Attorney General issued an opinion concluding that the  “‘open meetings’ requirement of R.C. 121.22 is not satisfied when members of a public body . . . vote by secret ballot.” 2011 Ohio Op. Atty Gen. No. 38. And that in fact, “[c]onstruing R.C. 121.22 as permitting a public body to vote by secret ballot also produces an unreasonable and absurd consequence.” Id.

Just twelve days prior to the issuance of the 2011 Attorney General’s Opinion, the Hamilton County Common Pleas Court issued its own ruling on the question. Again, finding that the statutory requirement that the Sunshine Law be “liberally construed to require public officials to take official action and conduct all deliberations only in open meetings encompass both discussion and voting.” Forest Hills Journal v. Forest Hills Local School Dist. Bd. of Edn., C.P. No. A-1100109, 2011 Ohio Misc. LEXIS 799, at *4 (Oct. 6, 2011).

Secret ballots in Bratenahl

The Village Council, at its January 2016 meeting voted by secret ballot in choosing their president pro tempore, even after one member questioned the legality of a secret ballot vote.

Meade, brought suit, and, during discovery the Village turned over copies of the ballot slips – appended with post-it-notes identifying the councilmember to whom each slip belonged. But in a bizarre set of circumstances, the appended ballots suggest that one member voted twice in the second round; and one ballot in each of the other rounds is unidentified.

Additionally, at one meeting, the Village entered into executive session without the minutes indicating the roll call vote; and the minutes of the council’s finance committee were simply recitations of the motions and votes, with nothing of the substance of the discussions.

Trial and Appellate Court’s response

The Cuyahoga County Common Pleas Court, in a un-detailed decision, simply granted summary judgment to the Village on all claims.

Plaintiff appealed the decision to the Cuyahoga County Court of Appeals, which affirmed the trial court’s decision, declaring that a secret ballot vote isn’t a secret ballot vote if the public body keeps copies of the ballot slips and later produces them as part of discovery in a lawsuit; and that the minutes of one public body can be used to supplement the minutes of a different public body – and without notice to the public.

Simply put, the Court of Appeals significantly altered the landscape of Ohio Sunshine Law, and, from Plaintiff’s perspective, in a manner inconsistent with the statute and Ohio Supreme Court precedent.

Plaintiff petitions Ohio Supreme Court for review of the case

On March 23, Finney Law Firm filed its notice of appeal and memorandum in support of jurisdiction wtih the Ohio Supreme Court. Then on March 26, the Ohio Coalition for Open Government filed an amicus brief urging the Court to accept jurisdiction and review the Cuyahoga County Court of Appeals’ decision. Notably, the Ohio Supreme Court only accepts approximately 7% of all “jurisdictional appeals” such as this case. So even getting the case heard by the Court is a hurdle. Read our memo here, and the OCOG memo here.

Conclusion

Finney Law Firm has a proud history of advocating for open government and we are cautiously optimistic that the Ohio Supreme Court will accept jurisdiction in this case, and that we will be able to once again vindicate the people’s right to know what its government is doing.

Celebrate Sunshine Week in Ohio

Author By Finney Law FirmPosted on

March 11-17 is Sunshine Week, highlighting and celebrating laws aimed at preserving transparency and accountability in government.

In Ohio R.C. 121.22 (the Open Meetings Act) and 149.43 (the Public Records Act), are the main sources of law protecting the citizenry’s right to know and appreciate what is being done in its name.

In the past year, Finney Law Firm’s public interest practice group has obtained results for our clients, obtaining public records, and forcing open the doors of government.

State ex rel. Coalition Opposed to Additional Spending and Taxes v. Winton Woods School District – Several and Serial violations of the Open Meetings Act; illegal executive sessions, including numerous executive sessions in which the school board simply recited the laundry list of personnel related matters set forth in the Open Meetings Act.

State of Ohio ex rel. Mick Higgins v. City of Springdale – voting by secret ballot; illegal executive sessions.

Even without litigation, we have obtained results for our clients in drafting and submitting public records requests to public bodies throughout Ohio to allow our clients to better monitor their local officials.

Currently we are preparing for an appeal to the Ohio Supreme Court in a case involving deficient meeting minutes and secret ballot voting by a village council in northern Ohio. Expect to hear more about that case soon.

Click here to learn more about Ohio’s Sunshine Laws in the “Yellow Book” distributed by State Auditor David Yost and Attorney General Mike DeWine.

Click here to read more about Ohio’s Sunshine Laws.

Need help with your local government? Contact us here.

Foreign Corporation Primer: Register before filing suit

Author By Finney Law FirmPosted on

One important but often overlooked provision of Ohio corporate law is the requirement that “foreign corporations” (meaning any corporation established outside the state of Ohio) must obtain a license to transact business within the state of Ohio when doing business in Ohio.

No foreign corporation. . .shall transact business in this state unless it holds an unexpired and uncanceled license to do so issued by the secretary of state. To procure such a license, a foreign corporation shall file an application, pay a filing fee, and comply with all other requirements of law respecting the maintenance of the license as provided in those sections.

R.C. 1703.03.

Although a failure to obtain a license does not invalidate any contracts a foreign corporation enters into in Ohio, a lack of registration means that a foreign corporation cannot maintain a lawsuit in Ohio courts.

The failure of any corporation to obtain a license…does not affect the validity of any contract with such corporation, but no foreign corporation that should have obtained such license shall maintain any action in any court until it has obtained such license. Before any such corporation shall maintain such action on any cause of action arising at the time when it was not licensed to transact business in this state, it shall pay to the secretary of state a forfeiture of two hundred fifty dollars and file in the secretary of state’s office the papers required by divisions (B) or (C) of this section, whichever is applicable.

R.C. 1703.29.

A similar provision for foreign limited liability companies is located at R.C. 1705.58.

This is a common provision throughout the United States. In Kentucky the requirement is codified at Kentucky Revised Statute 14.9-20.

A recent Hamilton County Court of Appeals case highlights the importance of licensing your foreign corporation. In LV REIS, Inc. v. Hamilton County Board of Reviison, et al., C-160732. the First District Court of Appeals upheld the Common Pleas Court’s dismissal of a case brought by a Nevada corporation that had failed to register with the state before filing a Board of Revision appeal in the Common Pleas Court.

Had LVREIS been successful in the underlying case, it would have saved approximately $17,000 in property taxes per year – making the failure to register a costly oversight. It should be noted however, that even though the Common Pleas Court granted the motion to dismiss, it also provided some analysis of the merits of the appeal, suggesting that LVREIS would not have prevailed had the case been decided on the merits. 

If you are operating a foreign corporation or limited liability company in Ohio, this case should serve as a warning to make sure you’ve properly registered in every state in which you operate. If you are not currently registered in Ohio, you can register now.

For those involved in disputes with foreign entities corporations, this can be an important defense to raise in litigation, as even though a foreign corporation can cure the defect prospectively, the case law suggests that if an unregistered foreign corporation files suit but later registers with the state, such registration does not cure the lack of jurisdiction.

Contact Finney Law Firm for assistance with your corporate or property tax matter here.

Proposed Legislation to Clarify Tax Levy Ballot Language

Author By Finney Law FirmPosted on

House Bill 488 sponsored by Ohio State Representatives Becker and Hood will require that the effect of proposed tax levies be more clearly explained on the ballot.

Under current law, information on the effect of a proposed tax levy is expressed based upon the “tax value” of real property (35% of the true value). The proposed law will provide information based on the effect of the tax levy using the fair market of real property, as well as the millage rate against the tax value.

The proposed change will make it easier for voters to understand tax levies and make more informed choices at the ballot box.

You can follow the progress of House Bill 488 here.

Ohio Real Estate Law: Ohio Auditors take aim at “LLC Loophole” transfers

Author By Finney Law FirmPosted on

Ohio imposes fees on the conveyance of real estate, and generally determines the value of real property based upon the sale price when the property is sold. One means of avoiding the conveyance fee and reporting the sale price is the use of a “LLC Loophole.”

The LLC Loophole is a means of conveying title to real property using an LLC as an intermediary, rather than transferring title directly from the seller to the buyer. A property owner transfers title to real estate to an LLC that she owns, and then sells the LLC itself to the buyer. One benefit of  this conveyance is that no conveyance fee is paid, and the auditor is not alerted to the sale price.

Consider this illustration:

Property owner owns a strip mall valued by the auditor at $500,000. She has received an offer to buy the property for $750,000, but the buyer wants to avoid the publicity of reporting the sale through a conveyance form and the automatic increase in tax value that would come by simply buying the property directly from the property owner. So, the property owner sets up a new limited liability company, Strip Mall, LLC; conveys title to the property to Strip Mall, LLC; and then sells her 100% ownership interest in Strip Mall, LLC to the buyer for $750,000. The only filing with the county auditor is the conveyance fee showing a fee exempt transfer from the property owner to the LLC. No one is alerted that the buyer now owns the strip mall or that it was valued at $750,000 in an arm’s length transaction.

Under the proposed law, when the property owner sells her ownership interest in the LLC, she would have to report that sale to the auditor as if she had sold the real estate directly to the buyer. At that point, the auditor would assess a conveyance fee, and the real estate would be taxed at the sale price. The proposed bill would require the reporting and payment of taxes whenever any interest in an LLC or other entity that owns real estate (directly or indirectly) takes place.

To be clear, there is nothing unlawful about using LLCs in property transfers, and it is a perfectly legitimate method for conveying real estate.

We expect that public school boards in particular, as well as other property tax funded organizations will lobby in support of this legislation; and that it will find opposition from real estate investors and small government advocates generally. Whether it is this particular bill or another future proposal, the LLC Loophole will be facing continued scrutiny and efforts to impose conveyance fees and determine the purchase price.

The Legislative Services Commission’s analysis and the bill text are below.

Finney Law Firm will be keeping an eye on this bill as it works through the Ohio Legislature.

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Homebuyers Beware – Is the Seller Current on the Water Bill?

Author By Finney Law FirmPosted on

If you are purchasing a home in a county with a countywide water system (e.g. Butler County), you should be aware of a little known wrinkle in the law that could leave you on the hook for your seller’s water bill.

R.C. 6103.02(G) gives a county water works three options to collect unpaid water bills: create a lien against the property; collect against the owner or tenant; or even terminate the water service until the outstanding bill is paid.

These methods of collection apply not only to the tenant or owner who incurred the water bill, but subsequent purchasers as well.

This has become an issue in recent years as Butler County Ohio has become aggressive in its collection efforts, often ensnaring unwitting homebuyers.

Protect Yourself

One thing every homebuyer can do is simply ask the question: Are there any outstanding water bills?

State law gives buyers another option, R.C. 6103.02(G) allows a buyer, or her agent, to request that the county have the meter read and to provide a final bill for the property before the closing. Such request must be made at least fourteen days prior to the closing date, and the county has ten days to read the meter and provide the final bill.

Make sure any unpaid balance is paid prior to closing.

Those steps will help you avoid an unpleasant water bill as you settle into your new home.

Learn more about important questions to ask when you buy a home here.

Ohio Budget Bill Includes Changes to Tax Appeals Procedure

Author By Finney Law FirmPosted on

A recent change to Ohio Revised Code Section 5717.04 will remove the option to file an appeal from a Board of Tax Appeals decision directly to the Ohio Supreme Court.

Starting September 29, 2017, Ohioan’s unhappy with a Board of Tax Appeals decision will now have to file their appeal with the local Court of Appeals. Under the previous law, appellants had the choice of filing directly with the Ohio Supreme Court.

However,  a party to the appeal can file a petition with the Ohio Supreme Court requesting that the Court take jurisdiction over the appeal. The Supreme Court may do so if the appeal involves a substantial constitutional question or a question of great general or public interest. In order to attempt to bypass the Court of Appeals, one must still first file the appeal with the Court of Appeals and then file a petition with the Supreme Court within thirty days after the appeal is filed with the Court of Appeals.

Passed as part of the state budget, this change will add additional litigation, time, and expense to obtaining finality in tax disputes.

Finney Law Firm practices extensively before the Board of Tax Appeals in property valuation measures. Click here to learn how we can help you navigate through the property valuation process.

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