Before the Summit County Board of Elections BIOAPR 1D AM 3 34 In Re: Referendum Petition City of Green Resolution 2018-R09 Now comes NEXUS Gas Transmission, LLC, a natural gas pipeline company that owns property in the City of Green that it may use for development purposes, (the “Protesto”) and hereby brings a protest pursuant to Ohio Revised Code Section 3501.39(A). 1. INTRODUCTION ‘On February 7, 2018, the City of Green passed Resolution 2018-RO9 ("Resoltion”) authorizing the Mayor and Law Director to finalize a settlement agreement and conclude federal litigation between the City and NEXUS, The Resolution lso authorized the City to execute an casement agreement allowing NEXUS to install «natural gas pipeline through City propery. On March 8, 2018, a group of Green residents ("Petitioners") filed a referendum petition containing approximately’ 1,500 signatures (“Petition”). Ohio lew provides citizens with the right to place issues on the ballot through referendum. However, that right is contingent upon compliance with well-established rules that must be followed to ensure that all ballot measures fare accurate and meet the legal requirements to be placed on the ballot before the voters. This ‘Board has the stautory authority and duty to review the Petition and approve it, provided that ‘those legal requirements are met. ‘The Petition contains some significant and material defects that require this Board to ‘exercise its authority and reject the Petition. In summary, the Petition contains the following fatal flaws, ether one of which renders the entire Petition invalid 1, Asa threshold matter, Petitioners failed to attach the correct Resolution to the Petition. ‘Ohio law requires that the Petition include a “fll and correct” copy ofthe Resolution that is the subject ofthe referendum. Here, Petitioners attached an unsigned, uncertified, and partial copy ofthe Resolution to the Petition instead ofthe final version of the Resolution as passed. This filure to adhere to basic procedural requirements and safeguards is fatal to the validity ofthe Petition and this Boaed cannot certify the Petition as @ result, AS a result, the Board need not delve into the secondary fatal defect outlined below, which is ‘more legal tan procedural in nature, although it too renders the Petition invalid 2. Ohio law and the Ohio Constitution provide the right of referendum only for legislative activites, not administrative ones. The City of Green already has ordinances that allow the City to sign a settlement agreement, accept settlement proceeds, and grant easements. ‘Applications of those existing laws in this matier are administrative in natwe, not legislative, thus the Resolution is not properly subject to a referendum. In addition, there are a number of individual par-petitions that contain material laws. ‘Most significant, Petitioners were required to file a certified copy of the Resolution with te City Finance director before gathering signatures, but failed to do so. Ohio courts require strictcompliance with this law and Petitioners’ failure to follow it requires that certain part-pettions be rejected, I. PROTEST R.C. 3501.39(A)(2) provides that aboard of elections shall accept any petition unless a “writen protest against the petition * * *, naming specific objections, is filed, a hearing is Feld, and a determination is made by the election officials with whom the protest is filed that ‘the petition violates any requirement established by law." ‘The Petition contains significant and fatal deficiencies that are evident from the face of the Petition itself and require the Board to disqualify the Petition. It is uncontroverted that this Board has the “authority to disqualify a petition from appearing on a ballot based on defects apparent on the face ofthe petition.” State ex rel. Quinn v. Del. Cry. Bd. of Elections, 2018- Ohio-966, $21, citing R.C. 3501.11(KX. Protestor respectfully requests that this Board reject the Petition, in whole or in par, for the following reasons: A. Global Deficiencies 1. The Petition is invalid because Petitioners failed to attach the corect Resolution, Inexplicably, Petitioners circulated the wrong version of the Resolution with tha Petiian Petitioners attached the intial version of the Resolution as it was introduced to Counei. on February 7, 2018, However, this version differs materially from the version of the Resolution ‘that was actually passed in several legally significant ways:! + The “as introduced” version of the Resolution is not signed or certified. No signatures of Council Members, the Clerk, or the Mayor are included. ‘+The “as introduced” version of the Resolution contains an incorrect ttle, Before passage. the words “and declaring an emergency” were deleted from the title ofthe Resolution. Yet the version ofthe Resolution presented to Petition signers sill includes this clause inthe ttle + The “as introduced” version of the Resolution includes an entire paragraph that was considered, rejected, and deleted before passage. The version of the Resolution that was circulated includes Paragraph 4. However, Paragraph 4 was deleted before passage and should not have been presented to Petition signers as part ofthe proposed referendum. ‘+ The “as introduced” version of the Resolution does not include attachments that were included with the Resolution as passed. The settlement agreement was considered by * See Exhibit A for a copy of the “as introduced” version ofthe Resolution that was circulated and Exhibit B forthe copy of the “as passed” Resolution which should have been attached te the Petition.‘Council and included as an integral pat of the Resolution as passed, but Petitioners failed to include it with the version ofthe Resolution that they circulated ‘These distinctions are not simply minor clerical errors that can be ignored. On the contrary, Ohio cours have repeatedly instructed that strict compliance with election laws is, ‘required and a petition that fais to meet this standard is invalid. “The settled rule is that elecion Jaws are mandatory and require stict compliance and that substantial compliance is acceptable only when an election provision expressly states tht it is.” Stutzman v. Madison Cty. Bd. of Elections, 93 Ohio St. 34 511, 514 (2001), 2001 Ohio 1624; State ex rel. Citizens for Responsible Taxation v. Scioto Cry. Ba. of Elections, 65 Ohio St. 34 167, 169 (1992). See also, State ex rel. Edwards Land Co. v. Del. Ciy. Bd. of Elections, 2011-Ohio-4397, 41, 129 Ohio St. 34 580, 388, (board of elections abused its diseretion * * * [by] denying relators' protest, cetfying the ‘eferendum petition * * *" where the petition did not demonstrate strict compliance with election laws) ‘Here, Petitioners’ failure to attach the correct version of the Resolution to the Petition violated several mandatory provisions ofthe applicable election laws. Petitioners were required by RC. 731.3 to include “a full and corest copy ofthe title and text of the proposed ordinance or other measure.” Ohio Cours have long held that such defeets in a referendum petition are ‘material, and this Board is required to reject the entre Petition as @ result. “Omitting the ttle and/or text ofa proposed ordinance isa fatal defect because it interferes with a petition's ability {to fairly and substantially present the issue and might mislead electors.” Cristy v. Suramit County Bd. of Elections, 77 Ohio St. 34 35, 38 (1996), citing State ex rel. Thurn ¥. Cigakoga County Ba. of Eections, 72. Ohio St. 34 289, 92 (1995) “The Petition as circulated does not include “a full and correct copy of the title” In Stare ex rel. Schultz v. Cuyahoga Cly. Bad. of Elections, 48 Ohio St. 2d 173, 175 (1976), the Ohio ‘Supreme Court examined a referendum petition that contained a similar defect to the Petitcn at issue here. In that case, a zoning resolution contained four properties for consideraon. Township Trustees disapproved one of the four sctions and approved the other thres. A referendum petition was circulated that included all four properties in the title. The Supreme Court determined that the petition was invalid: “[tJhe referendum petition submitted by relators does not indicate anywhere thet one ofthe paragraphs included in the tile ofthe resolution to be ‘oted on was not adopted by the Olmsted Township Board of Trustees. Its apparent, ther‘ore, that the referendum petition does not fairly and accurately present the issues sought to be submitted to the electorate” Id at 175. Here too, the Petition that was circulated and that is sow pending before this Board does not fairly and accurately present the issues sought to be submitted to the electorate because the Resolution circulated with the Petition did not contain the correct ttle ofthe Resolution as passed, ‘The Petition is also deficient because it does not include “a full and correct copy of the * + * toxt of the proposed ordinance or other measure.” R.C. 731.31. Again, this is a mandstory provision in Ohio election law and failure to comply with the provision Tenders the Petition. invalid. The Eighth District Court of Appeals examined a similar situation in State ex rel. Golem ¥. Cipahoga County Bd. of Elections, 8th Dist. Cuyahoga No. 78145, 2000 Ohio App. LEXIS 4304 (Sept. 18, 2000). In that case, the petitioners, like Petitioners here, failed to attack the: cconect and certified version ofthe ordinance to the Petition being circulated, 3Attaching s certified copy of the ordinance to the petition ensures that citizens ‘asked to sign a petition will have the opportunity to examine an authenticated copy of the original ext of the ordinance. * * * With merely type-written names and lacking the signature of the clerk of council the copy of the ordinance lacks essential indicia of authenticity and reliability. We recognize that this holding may appear to elevate form over substance to the detriment ofthe power of rmunicipal referendum, The language of R.C. 731.32 requiring that a certified copy of the ‘ordinance be attached tothe petition is, however, unequivocal ‘State ex rel, Golem, 2000 Ohio App. LEXIS 4304, 13. Here, Green City Council revised the Resolution before passing and signing it. Council struck the words “And Declaring An Emergency” ffom the ttle and struck Section 4 from the text before passing the Resolution. Either one of those two reasons is sufficient to justify this Board in a decision to reject the Petition for noncompliance with R.C. 731.31. In addition to these fatal flaws, the Petition is also defective because it fils to include the Settlement Agreement that i at the very heart ofthe Resolution itself. Council atached a copy of the Settlement Agreement to the final version of the Resolution that it signed and passed However, the version of the Resolution circulated and submitted to this Board with each part- petition includes no attachments. Simply put, the Petition offered tothe public for signature, and ‘now being offered to the Board for certification, did not and does not accurately reflect the final action taken by the City. Because ofthis material and fundamental defect, it must be rejected by this Board, 2. The Petition is invalid beceuse it improperly attempts to refer an administrative action ‘The Ohio Constitution reserves the powers of initiative and referendum to the people of cach municipality “on all questions which such municipality may now or hereafter be authorized by law to control by legislative action” Ohio Constitution, Article Il, Section If. (Emphasis added). “Actions taken by a municipal legislative body, whether by ordinance, resolution, or other means, that constitute administrative action, are not subject to referendum proceedings.” State ex rel. Oberlin Citizens for Responsible Dev. v. Talarico, 106 Ohio St. 34 481, 2005-Ohio- 5061. (Emphasis added). The purpose of Resolution 2018-RO9 is plain ftom the face of the Resolution itself: to resolve litigation. Settlement authority is administrative, and thus not properly subject to referendum, “The test for determining whether the action of a legislative body is legislative or administrative is whether the action taken is “one enacting a law, ordinance or regulation, or ‘executing or administering @ law, ordinance or regulation already in existence.” Donnelly v Fairview Park, 13 Ohio St. 24 1, 3 (1968). “An act or resolution which merely caries out the policy or purpose already declared by the legislative body is an administrative action that is not Subject to initiative.” See also, Stale ex rel. City of Upper Arlington v. Franklin County Bd. of Elections, 119 Ohio St. 3d 478, 2008-Ohio-$093 (finding that where a city ordinance already conferred authority to enter into a contract, the ordinance was administrative and not subject to referendum).of Green has already adopted ordinances that authorize its Mayor to enter into settlements. As such, Resolution 2019-09 is administrative and not subject to referendum, ‘a. Entering into a settlement agreement stemming from federal cour litigation is ‘an administrative action “The portion of Resolution 2018-RO9 authorizing the Mayor to execute the settlement agreement with NEXUS constitutes an administrative action. The Mayor “shall be the contracting officer ofthe City and shall award and execute all contracts on behalf ofthe ity...” City of Green Charter, Article IL, Section 3.3(¢). A settlement agreement is a binding contract that is not subject to referendum. “It is axiomatic that settlement agreement is a contract designed to terminate a claim by preventing ot ending litigation and that such agreements are valid and enforceable by either party.” Continental W. Condominium Unit Owners Ass'n v Howard E. Ferguson, Inc, 74 Ohio St 34 501, 502 (1996). Here, the City of Green had been the subject of a federal court condemnation action, filed under the authority of a federal statue, 15 ULS.C. § 717M), after the Federal Energy Regulatory Commission issued NEXUS a Certificate of Public Convenience and Necessity (“FERC Cerificate"). The federal court ruled that NEXUS has eminent domain authority to take casement(s) from the City of Green. NEXUS Gas Transmission, LLC v. City of Green, etal, Case No, 5:17CV2062 (N.D. of Ohio, Dec. 28,2017). The City entered into an agreement with NEXUS settling a series of related federal litigation arising out of the issuance of the FERC Certificate and accompanying eminent domain rights, That agreement isa binding contract and is administrative in nature. (Ohio Courts generally hold that executing a contract is an administrative action that i not subject to referendum, In a2007 case involving the City of Green, the court found thatthe city counci’s resolution awarding projects to a construction company Was administrative in neture because it was passed according to existing Ohio law and a local ordinance that specifically provided authority for the type of project at issue. Sate ex rel Helms v. City of Green, 9th Dist. ‘Summit No. 23534, 2007-Ohio-2889. The City had, already signed 2 contract to allow construction to begin when a referendum petition was fled. Jd at § 5, Both the trial and appellate courts agreed thatthe “passage of the Resolutions at issue was not an enactment of ‘now law or ordinance, Instead, it was the administration ofan already existing ordinance..." Id. at F 16, See, also, State ex rel. Perona v. Arceci, 129 Ohio App. 34 15, 17 (Sth Dist.1998) (Ginding that a mayor's agreement with golf course developer was not subject to referendum), Similarly, State ex rel City of Upper Arlington v. Franklin County Bd. of Elections, 119 Ohio St. 3d 478, 2008-Ohio-5093, involved an ordinance that authorized a contract for solid-waste collection and processing services and was found to be administrative, and thus not subjest 0 referendum. ratesIn Green Pointe Development, In. v. City of Green, Summit County Common Pleas, No. CV 2003-02-0927, 2005 WL 5997875, 4 (Febmuary 8, 2005), the court of common pleas reviewed a 2005 referendum challenge to the City of Green’s authority to settle a case with a eveloper. As with Resolution 2018-RO9, the City had passed a resolution authorizing settlement. A referendum action was filed and subsequently approved by the electorate. ‘Nonetheless, the Green Point Development Court upheld the settlement despite the fct thatthe underlying Resolution was referred. “When parties enter into a settlement agreement in the presence of the court, such an agreement constitutes a binding contract.” Jd. (citation omitted, Similarly, the setlement with NEXUS is a binding contract that was already signed before the referendum petition was filed end accordingly, the Petition is invalid ‘The settlement agreement is not subject to referendum because the City of Green’s Charter specifically authorizes the Mayor to execute contracts on behalf ofthe City, and because centering into a settlement agreement with NEXUS is a contract that i administrative in nature. 1. Granting an easement and accepting the transfer of property and js, per @ seitlement cgreement, isan administrative action. Activities affecting the use, encumbrance or disposition of real property such as the easements at issue here have “no general, prospective application such that the action taken ‘ould fit within the usual and customary meaning of the phrase ‘legislative action’ contained in Section If, Article IL” Buckeye Community Hope Found. v. City of Cuyahoga Falls, 82 Ohio St. 34 539, 545,(1998). Actions camying out various property or development matters undertaken in furtherance of previous legislative enactment are administrative in nature and thus not properly subject to referendum, For example, in State ex rel. Oberlin Citizens for Responsible Dew. v. Talarico, 106 Ohio ‘St 34 481, 2005-Ohio-5061, 3-4, the city council passed a resolution approving a onstruction agreement between the City and Wal-Mart. The Court held that because the resolution “merely executes and administers laws already in existence instesd of enacting new laws.” it was administrative and not subject to referendum. Jd. at 24. While the enactment of a new zoning. ordinance or a zoning amendient would be considered legislative according to tke court, the action at issue in Oberlin was instead passed pursuant to existing zoning laws and other applicable regulations, so it was deemed to be administrative, d.at 27. See alzo, Dorinely v Fairview Park, 13 Ohio St. 2d 1 (1968) (council ordinance approving resubdivision of parcels pursuant to zoning ordinance was an administrative action); Slate ex rel. Commt, for the Referendum of Ordinance No. 3844-02 v. Norris, 99 Ohio St. 3d 336, 2003-Ohio-3887 (ordinances adopting final development plans pursuant to preexisting planned community development not subject to referendum).