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City of Cincinnati's Response To Derek Bauman's Motion To Intervene
City of Cincinnati's Response To Derek Bauman's Motion To Intervene
City of Cincinnati's Response To Derek Bauman's Motion To Intervene
oppose the Motion to intervene in this case. As set forth more fully below, while
intervention is discretionary and permissive, the alleged open meeting violations are
based on different facts and, as a result, distinct legal questions. While judicial economy
may favor intervention, there is no need to litigate these separate inquires in a single
action. Rather, and to the extent the Intervenor seeks to resolve a distinct legal
I. Facts
the City Manager regarding an employment matter as the originating source of a string
of texts that allegedly constitute an Ohio open meetings violation. See, Complaint in
Intervention, ¶8-17, Exhibit A. As set forth below, the Council had no authority to act on
the City Manager’s text attached as Exhibit A to the Complaint in Intervention. Further,
less than a quorum appeared to participate in any discussion of the text, there was no
“deliberation” and no Council action was taken. It simply cannot be that every time the
City Manager issues an informational communication to City Council that the Ohio open
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The Court should compare the single informational text from the City Manager
with the facts as alleged in the primary Complaint in this case. In the original
Council that resulted in a distinct action by that quorum. Complaint at ¶32-44. The
Intervening Complaint alleges a single text string that is at most informational, and not
any deliberation regarding a potential Council action. Resolving these two issues in a
single case may be illustrative, but it is not required, and this Court should exercise its
II. Law
Rule 24 B provides for discretionary intervention when “an applicant’s claim or defense
and the main action have a question of law or fact in common.” Here, the Intervening
Complaint and the primary Complaint address different factual scenarios. There is a
difference between the City Manager’s informational text and Councilmember responses
regarding a City employee under the City Manager’s control and City Council exchanges
regarding potential removal of the City Manager who Council may vote to remove.
The complaints also raise different questions of law. Under the Cincinnati City
Charter, the City Manager is the chief executive and administrative officer of the City.
The City Manager is charged with both advising the City’s elected officials and with
primary authority to “make all appointments and removals in the administrative and
executive service. . .” City Charter Article IV, Section 3. However, unlike all other City
employees, the City Council has a specific role in the removal of the City Manager. City
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Accordingly, while City Council may comment or provide its opinion regarding
the removal of a City employee as an action taken by the City Manager, it lacks authority
under the Charter to take action specific to that employee. Therefore, any Council
Intervening Complaint is legally different than the discussion alleged in the Complaint
III. Conclusion
While both the Complaint and the Intervening Complaint allege an Ohio open
meetings violation, the factual predicate is different, and the legal authority of the City
Council to deliberate and act is different. Accordingly, this Court should exercise its
discretion to decline intervention. The City can defend the actions of the respondents in
the original action separate and apart from the unique facts and legal authority that
Respectfully Submitted,
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CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing was filed and sent via electronic mail
s/Emily E. Woerner
Emily E. Woerner (089349)
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