State ex rel. Cincinnati for Pension Reform v. Hamilton Cnty. Bd. of Elections, 2013–1464.

• Court: United States State Supreme Court of Ohio
• Writing for the Court: PER CURIAM.
• Citation: 997 N.E.2d 509,137 Ohio St.3d 45
• Parties: The STATE ex rel. CINCINNATI FOR PENSION REFORM et al. v. HAMILTON COUNTY BOARD OF ELECTIONS et al.
• Docket Number: No. 2013–1464.,2013–1464.
• Decision Date: 10 October 2013

137 Ohio St.3d 45
997 N.E.2d 509

The STATE ex rel. CINCINNATI FOR PENSION REFORM et al.
v.
HAMILTON COUNTY BOARD OF ELECTIONS et al.

No. 2013–1464.

Supreme Court of Ohio.

Submitted Oct. 1, 2013.
Decided Oct. 10, 2013.

[997 N.E.2d 511]

Langdon Law, L.L.C., David R. Langdon, and Joshua B. Bolinger; and Finney, Stagnaro, Saba & Patterson, L.P.A., and Christopher P. Finney, Cincinnati, for relators.

Joseph T. Deters, Hamilton County Prosecuting Attorney, and David T. Stevenson and Colleen M. McCafferty, Assistant Prosecuting Attorneys, for respondent Hamilton County Board of Elections.

Michael DeWine, Attorney General, and Kristopher J. Armstrong and Erin Butcher–Lyden, Assistant Attorneys General, for respondent Jon Husted.

McTigue & McGinnis, L.L.C., Donald J. McTigue, Mark A. McGinnis, and J. Corey Columbo, for intervening respondents Ohio Council 8 and Ohio Chapter 1184, AFSCME.

Minnillo & Jenkins Co., L.P.A., and Christian A. Jenkins, Cincinnati, urging

[997 N.E.2d 512]

denial of the writ for amicus curiae Cincinnati Organized and Dedicated Employees, Inc.

John P. Curp, City Solicitor, and Aaron M. Herzig, Deputy City Solicitor, urging denial of the writ for amicus curiae city of Cincinnati.

PER CURIAM.

{¶ 1} Relators, Cincinnati for Pension Reform and electors Douglas Robinson and Gary Greenberg (collectively, “CPR”) qualified an initiative to amend the Cincinnati City Charter for the November 5, 2013 ballot. However, CPR objects to the ballot language adopted by respondent Hamilton County Board of Elections to describe the proposed amendment. CPR seeks a writ of mandamus to compel the board to adopt new ballot language and to compel respondent Jon Husted, Ohio Secretary of State, to approve the new language approved by the board.

{¶ 2} We find that the board abused its discretion by adopting ballot language that omits two key provisions of the proposed charter amendment and accordingly grant the requested writ in part. We further find that CPR has not established entitlement to a writ against the secretary of state and accordingly deny that request.

Facts

{¶ 3} CPR sponsored an initiative petition to amend the Cincinnati City Charter by adding a new Article XVII. The proposed amendment contains five sections. The following is a noncomprehensive summary of the proposed amendment.

{¶ 4} Section 1 declares that the current model for providing retirement benefits to Cincinnati's municipal employees is “not financially sustainable” and “must be adjusted immediately.”

{¶ 5} Section 2 announces that future retirement benefits for city employees “must reflect the actual amounts saved by each and contributed for each by the City.” Section 2(A) mandates that “[t]he people of Cincinnati, by and through their government, shall not be compelled to contribute more funds to a City employee's retirement benefits than that City employee has contributed to his or her own retirement benefits.”

{¶ 6} Section 2(B) provides that persons employed by the city at the time the amendment passes may choose between the pension plans described in Sections 2(C) and 2(D), but anyone hired after the date of passage is not eligible to participate in the system described in Section 2(D).

{¶ 7} The Section 2(C) pension plan consists of the following:

Effective June 1, 2014, the aggregate retirement benefits paid to current and future City employees may not exceed the aggregate of (1) an employee's individual contributions * * *; (2) the City's contributions * * *; and (3) the return on an investment plan to which employee and employer contributions are made.

{¶ 8} The employee can contribute as much as he or she wishes, Section 2(C)(v), but the city cannot contribute an amount greater than 9 percent of the employee's base annual compensation, Section 2(C)(iv).

{¶ 9} Thus, Sections 2(A) and 2(C) appear to be an effort to craft a “defined contribution” plan with an employer match. Although Section 2 imposes caps on the employer contribution (the gross employer contribution cannot exceed the gross employee contribution, and in all cases, the employer contribution is capped at 9 percent), the amendment never actually

[997 N.E.2d 513]

mandates an employer contribution or indicates whether the contribution formula is dollar-for-dollar or calculated at some lower rate.¹

{¶ 10} Section 2(D) preserves the right of current city employees to continue participating in a “defined benefit” plan:

This defined benefit shall not exceed an annual payment equal to an employee's years of service multiplied by two percent of the average of the employee's five highest years of base compensation. The amount of such payment shall not exceed 60 percent of the average of the employee's five highest years of base compensation. The multiplier applicable to years of service that begin after June 1, 2014 shall not exceed 1.5%.

The defined-benefit plan created under Section 2(D), which does not make employer contributions contingent on employee contributions, appears to conflict with the cap on employer contributions in Section 2(A).

{¶ 11} Section 3 imposes limits on cost-of-living adjustments.

{¶ 12} Section 4 imposes an auditing requirement. Section 4(C) mandates:

If any independent audit demonstrates that insufficient funds will be available to pay forecasted future obligations within ten years from the date of the audit's completion, the City must forthwith create sufficient cost savings or new revenue that, when accumulated over the time between the adverse audit and the projected shortfall, will meet those forecasted future obligations.

{¶ 13} Section 5 provides for enforcement of the amendment “to the maximum extent possible.” To that end, Section 5(E) vests standing in any Cincinnati resident, “whether injured or not,” to bring a civil or equitable action to enforce the amendment, places the burden of proof on the city to demonstrate that it is in compliance, and allows the plaintiff to recover reasonable attorney fees.

{¶ 14} On September 3, 2013, Cincinnati City Council enacted Ordinance No. 263–2013, directing the board to submit the proposed charter amendment to the electors at the November 5, 2013 election. A copy of Ordinance No. 263–2013 is attached to the complaint as Exhibit B. The ordinance included proposed ballot language summarizing the amendment.

{¶ 15} CPR filed a written objection to city council's proposed ballot language. On September 9, 2013, the board heard arguments from a number of parties regarding the proposed ballot language.

{¶ 16} The board reconvened the next evening, September 10, 2013, and approved the following ballot language.

CHARTER AMENDMENT

City of Cincinnati

A majority vote is necessary for passage

[997 N.E.2d 514]

An Amendment to the Charter of the City of Cincinnati to Add Provisions Relative to Pension and Retirement Plans for City Employees.

Shall the Charter of the City of Cincinnati be amended to add Article XVII that would:

1. Require the City of Cincinnati to pay forecasted pension obligation shortfalls by creating sufficient new revenues, which may include new or additional taxes and fees, and/or other revenue sources, and/or by implementing sufficient cost savings, which may include cuts to city programs or services, to fund any projected shortfall of the Cincinnati Retirement System which, as determined by an independent financial audit, would result in insufficient funds being available to pay forecasted future obligations of the Cincinnati Retirement System within ten years from the date of the audit's completion;

2. Require current City employees to choose to continue to participate in a defined benefit plan with maximum allowable percentages of salary provided pursuant to retirement benefits of individual employees or enroll in a defined contribution plan under which the aggregate retirement benefits paid by the Cincinnati Retirement System may not exceed the aggregate of an employee's individual contributions, which can be made at any level, and the City of Cincinnati's contributions, which shall not exceed the employee's individual contributions, and shall not exceed nine percent;

3. Provide future employees with only the defined contribution plan described herein;

4. Provide that no past or present City employee shall be entitled to collect retirement benefits while simultaneously earning income from the City or any other political subdivision or government agency or entity;

5. Provide for a potential cost of living adjustment for beneficiaries of the Cincinnati Retirement System not to exceed the increase in a the [sic] consumer price index, but which shall not exceed a simple rate of 3% per annum, which cost of living adjustment may be temporarily suspended when necessary at the discretion of the City of Cincinnati;

6. Provide for enforcement of this amendment to the extent permitted by law and further provide that any Cincinnati resident, whether injured or not, shall have the right to bring a civil or equitable action to enforce this amendment, and be entitled to have their attorneys fees and expenses paid by the City if they prevail?

FOR THE AMENDMENT

AGAINST THE AMENDMENT

{¶ 17} CPR filed the instant action two days later, on September 12, 2013, naming as respondents the Hamilton County Board of Elections and Ohio Secretary of State Jon Husted. The respondents filed answers, as did the American Federation of State, County, and Municipal Employees Ohio Council 8 and Ohio Chapter 1184 (collectively, “AFSCME”), whose motion for permissive intervention as respondents the court granted on September 24, 2013.

[997 N.E.2d 515]

{¶ 18} The parties submitted briefs to the court in compliance with the accelerated schedule for expedited election cases set forth in S.Ct.Prac.R. 12.08(A)(2). The court has also received and considered two amicus briefs, one from Cincinnati Organized and Dedicated Employees, Inc., and the other from the city of Cincinnati.

{¶ 19} This cause is now before the court for consideration of...