IN THE COURT OF COMMON PLEAS CUYAHOGA COUNTY, OHIO STATE OF OHIO, EX. REL., FRANCIS X. LALLY, JR. 3311 Prospect Ave Cleveland, Ohio 44115 and ASSOCATION OF CLEVELAND FIRE FIGHTERS, LOCAL 93 OF THE INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS 3311 Prospect Ave Cleveland, Ohio 44115 Plaintiffs-Relators, vs. CITY OF CLEVELAND, OHIO c/o its DIRECTOR OF LAW, BARBARA LANGHENRY 601 Lakeside Avenue, Rm. 106 Cleveland, OH 44114 and REVEREND GREGORY E. JORDAN, in his official cap: Civil Service Commit and its President, City of Cleveland 601 Lakeside Avenue, Rm. 119 Cleveland, OH 44114 and ) ) ) ) ) ) ) d ) ) ) ) ) ) ) ) ) ) ) ) ) } ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CASE NO.: JUDGE: TAXPAYER’S VERIFIED COMPLAINT FOR WRIT OF MANDAMUS AND OTHER RELIEF IN LAW AND EQUITYMICHAEL FLINKINGER, in his official capacity as Civil Service ‘Commission Member and its Vice President, City of Cleveland 601 Lakeside Avenue, Rin, 119 Cleveland, OH 44114 and MICHAEL SPRENGER, in his y as Civil Service Secretary, City of Cleveland 601 Lakeside Avenue, Rm. 119 Cleveland, OH 44114 and DANIEL J. BRENNAN, in his official capacity as Civil Service ‘Commission Member, City of Cleveland 601 Lakeside Avenue, Rm. 119 Cleveland, OH 44114 and INDIA PIERCE LEE, in her official capacity as Civil Service Commission Member, City of Cleveland 601 Lakeside Avenue, Rm. 119 Cleveland, OH 44114 and MICHAEL MCGRATH, in his Official Capacity as Director of the Department of Public Safety, City of Cleveland 601 Lakeside Avenue, Rm. 230 Cleveland, OH 44114 Defendants- Respondents.Plaintiffs, by and through undersigned counsel, state for their Verified Complaint as follows: INTRODUCTION 1. Plaintiff-Relator Francis X. Lally, Jr. (“Mr. Lally”) and Plaintiff Relator the Association of Cleveland Fire Fighters, Local 93 of the International Association of Fire Fighters (Local 93”) (collectively, “Plaintiffs") bring this taxpayer action for a writ of mandamus pursuant to Ohio Revised Code (“R.C.”) § 733.58, to enforce the clear legal rights established by City of Cleveland Charter (“Charter”) Chapter 27, §§ 140 and 141, and. City of Cleveland Civil Service Commission Rule 18.30 by compelling Defendants- Respondents to comply with their clear legal duties set forth therein, As required by ORC § 733.59, Plaintiffs are filing security for the costs required by way of the filing fee with the Clerk for the Cuyahoga County Court of Common Pleas TIES AND. NU Mz. Lally is a citizen of the State of Ohio and a taxpayer in the City of Cleveland, the President of the Association of Cleveland Fire Fighters, Local 93 of the International Association of Fire Fighters (“Local 93”), located at 3311 Prospect Ave., Cleveland, Cuyahoga County, Ohio, 44115. 3. Local 93 is the exclusive collective bargaining agent for all full-time fire fighters employed by the City of Cleveland holding the rank of Fire Fighter through Assistant Chief, and further represents the fire fighters with regard to all terms and conditions of employment with the City of Cleveland. 4, As taxpayers of the City of Cleveland, Ohio, Plaintiffs institute this action pursuant to10, R.C. § 733.59, on behalf of the City of Cleveland and the State of Ohio. Defendant City of Cleveland, Ohio (“City”) is a chartered municipal corporation established and operating pursuant to the laws of the State of Ohio. Defendants Gregory E. Jordan (“Commissioner Jordan”), Michael Flinkinger (‘Commissioner Flinkinger”), Michael Sprenger (“Commissioner Sprenger”), Daniel Brennan (“Coramissioner Brennan”), and India Pierce Lee (“Commissioner Lee”) are members of the City Civil Service Commission who, through operation of the City’s Charter, are charged with the duty to supervise the administration of the City’s Civil Service Rules and, further, to perform such duties as required by the Civil Services Rules, the City of Cleveland's Ordinances, Charter, and the laws of the State of Ohio Defendant Michael McGrath is the City’s Director of Public Safety and, in that capacity, serves as the Appointing Authority for and administers the Division of Fire, subject to the 's Charter and Ordinances, and the laws of the State of Ohio, provisions of the Cit FAC On September 14, 2018, Angelo Calvillo, Chief of the City of Cleveland Division of Fire (Chief Calvillo”), was deposed in the matter Livingston v, Calvillo, et. al, United States District Court for the Northern District of Ohio Case No. 1:17-cv-1936 During that deposition, Chief Calvillo stated that, while he was serving as Fire Chief, he solicited signatures for nominating petitions on behalf of his employer and incumbent candidate Mayor Frank Jackson, for political public office. See Exhibit A. Chief Calvillo collected signatures on at least five such Nominating Petitions (Form No. 212C (6.1.16)), on or around February and March of 2017 (“Petitions”). See Exhibits B- 1,B-2, B-3, B-4, and B-5.11. Bach Nominating Petition includes a Circulator Statement that must be completed and signed by the circulator of each Nominating Petition as a witness to each signature obtained by the circulator for that Nominating Petition. 12. Chief Calvillo personally signed and dated each Circulator Statement on each ‘Nominating Petition, certifying that he circulated each such Petition and witnessed each signature on the Petitions. 13. In this process, Chief Calvillo obtained at least 98 signatures in support of Mayor Jackson, an incumbent candidate for public office of Mayor of the City of Cleveland. 14, One of the 98 signatures obtained by Chief Calvillo was that of a current Cleveland fire fighter. 15. Fach Nominating Petition was certified as a true and correct copy of the original ‘Nominating Petition that was filed with the Cuyahoga County Board of Elections. See Exs. B-1 through B-5. 16. Plaintiffs, through their legal counsel, demanded the City of Cleveland Director of Law, the Chief Assistant Prosecutor, and the Secretary of the Civil Service Commission institute an action to remove Mr. Calvillo from his position as Fire Chief on their behalf by letters dated August 7, 2019. See Exhibits C-1, C-2, and C-3. On August 13, 2019, Plaintiffs again reiterated its demand to the City of Cleveland Director of Law. See Exhibit D. The Defendants/Respondents have refused to act and, in a letter from the City Director of Law dated August 21, 2019, confirmed that the City will not act to effectuate the removal of Chief Calvillo from office. COUNT ONE ~ WRIT OF MANDAMUS 17. Plaintiffs incorporate Paragraphs 1-18 if their Verified Complaint as if fully rewrittenherein. 18, R.C. § 733.58 (Writ of Mandamus) provides: “In case an officer or board of a municipal corporation fails to perform any duty expressly enjoined by law or ordinance, the village solicitor or city director of law shall apply to a court of competent jurisdiction for a writ of mandamus to compel the performance of the duty.” 19, Charter of City of Cleveland, Chapter 27 § 140 (Tenure; Political Activity Prohibited) provid in relevant part: “+ * # No person in the service of the City shall use his official authority to influence or coerce the political action of any person or body, or to interfere with any nomination or election to public office. No person in the classified service of the City shall act as an officer of a political organization or take part in a political campaign, or serve as a member of a committee of any such organization, or circulate or seek signatures to any petition provided for by primary or election laws, or act as a worker in favor of or in opposition to any candidate for public office.” 20. R.C. § 733.59: 733.59 (Taxpayer's suit) provides: “If the village solicitor or city director of law fails, upon the written request of any taxpayer of the municipal corporation, to make any application provided for in sections 733.56 to 733.58 of the Revised Code, the taxpayer may institute suit in his own name, on behalf of the municipal corporation. Any taxpayer of any municipal corporation in which there is no village solicitor or city director of law may bring such suit on behalf of the municipal corporation. No such suit or proceeding shall be entertained by any court until the taxpayer gives security for the cost of the proceeding,” 21. Charter of City of Cleveland, Chapter 27 § 141 (Violations and Penalties) provides, in relevant part: “It shall be the duty of the Civil Service Commission to supervise the execution of the foregoing civil service provisions of this 6Charter and the rules made thereunder, and it shall be the duty of persons in the service of the City to comply with such rules and to aid in their enforcement. Any person who, by himself or in ‘cooperation with one more persons, * * * willfully or through culpable negligence violates any of the civil service provisions of this Charter, or any of the rules of the Commission made in pursuance thereof, shall be deemed guilty of a misdemeanor and upon conviction thereof before the Municipal Court shall be fined not less than fifly ($50.00) doilars nor more than one thousand ($1,000.00) dollars, or imprisoned not more than six months, or both. * * * [I] he be an officer or employce of the City he shall immediately forfeit his office or employment.” 22. City of Cleveland Civil Service Commission Rule 18.30(A) (Use of Official Authority: Prohibition) provides: “An employee may not use his/her official authority or influence as a City of Cleveland employee for the purpose of interfering with or affecting the result of an election.” 23. City of Cle: and Civil ice Commission Rule 18.30(B) (Political management and political campaigning: prohibitions) provides, in relevant part: “|. An employee may not take an active part in political ‘management or in a political campaign by engaging in any of the activities listed below in paragraph (2) hereof. Where this list refers to a “restricted election” that term shall include: a, Any clection which is a partisan election: and b. Any election for any public office with authority over any territory within the corporate limits of the City of Cleveland, including but not limited to elections for mayor of the City of Cleveland... ‘The term “restricted election” shall not include any nonpartisan elections except as set forth in subdivision (b) above. 2. Activities prohibited by paragraph (1) of this section include but are not limited to the following: B. Taking an active part in managing the political campaign of a candidate for political party or political organization office. C. Soliciting votes in support of or in opposition to a candidate for public office in a restricted election or a candidate for political party or political organization office. D. Endorsing or opposing a candidate for public office in a restricted election or a candidate for political party or political 724, 2s. 26. 21. 28, 29. 30. organization office in a political advertisement, campaign literature, or similar material. E, Initialing or circulating a declaration of candidacy or petition for placement of a person’s name on the ballot of an election other than # nonpartisan election.” By collecting signatures on these Nominating Petitions, Chief Calvillo circulated or sought signatures provided for by primary or election laws, violating Chapter 27 § 140 of the City’s Charter. By collecting signatures on these Nominating Petitions, Chief Calvillo used his official authority to influence or coerce the political action of at least 98 individuals and circulated or sought signatures provided for by primary or election laws, violating Chapter 27 § 140 of the City’s Charter. By collecting signatures on these Nominating Petitions, Chief Calvillo actively used his official authority to influence at least 98 individuals as a City of Cleveland employee for the purpose of affecting the result of an election violating Civil Service Rule 18.30. By collecting signatures on these Nominating Petitions, Chief Calvillo actively participated in an election for public office (the Mayor of the City of Cleveland) by engaging in a prohibited activity, violating Civil Service Rule 18.30, By collecting signatures on these Nominating Petitions, Chief Calvillo willfully or ‘through culpable negligence violated the civil service provisions of the City’s Charter and the Civil Service Rules City Charter Chapter 27 § 141 classifies Chief Calvillo’s willful or culpably negligent conduct as a misdemeanor, and additionally subjects that conduct to fines and/or prison time, and requires that Chief Calvillo forfeit his office or employment as Fire Chief. Under City Charter Chapter 27 § 141, each of the Defendants have a duty to comply with 8and aid in enforcing the City’s Charter and Civil Service Rules. 31, Under City Charter 27 § 141, the City is prohibited from employing any person in service to the City who violated the City’s Charter or Civil Service Rules. 32, Under City Charter 27 § 141, each of the Defendants must aid in enforcing the City’s Charter and the Civil Service Rules by removing Chief Calvillo from his employment as Fire Chief for such violations. 33. To date, Chief Calvillo remains as Fire Chief and the Defendants have failed and refused to remove him from his position of employment with the 34, Defendants’ failure to remove Chief Calvillo for his conduct constitutes a continuing failure of each of the Defendants to enforce a public right (o a democratic and unbiased government comprised of trustworthy government actors. WHEREFORE, Plaintiffs pray for a writ of mandamus to issue an order mandating Defendants enforce the City’s Charter and Civil Service Rules by removing Chief Calvillo from his employment and position as Fire Chief for the City of Cleveland. WHEREFORE, Plaintiffs further demand reasonable attorney fees and the costs of bringing this action, WHE EFORE, Plaintiffs further demand any and all relief which the Court may deem just, reasonable, and equitable.Respectfully submitted Joseph W. Diemert, Jr. Joseru W. Diemer, JR. (0011573) wdiemert@diemertlaw.com THOMAS M. HANCULAK (0006985) tmhanculak@aol.com “Mark V. GUIDETTt (0084175) myguidetti@diemertlaw.com Diemert & Associates Co., L.P.A. 1360 S.O.M. Center Road Cleveland, Ohio 44124 Phone: 440.442.6800 Fax: 440.442.0825 Counsel for Plaintiffs INSTRUCTIONS FOR SERVICE Please serve the Defendants at their above-captioned addresses by certified mail, return receipt requested. loseph W. Diemert, Jr. Josepx W. DieMeRT, JR. (0011573) Counsel for Plaintiffs 10IN THE COURT OF COMMON PLEAS CUYAHOGA COUNTY, OHIO STATE OF OHIO, EX. REL., FRANCIS X. LALLY, JR., et al, Plaintiffs, v. CITY OF CLEVELAND, OHIO, et al, Defendants. 1, Francis X. Lally, Jr. being first duly sworn according to law, depose and state that the information contained in the foregoing Verified Complaint in this action is true and correct to the best of my information, knowledge, and belief. Lopes (2 a ERANCIS X. LALLY, JR. L 4 Swom and subscribed before me this 12,“ day of August, 2019. wy JW, DIEMERT, JR, Atomey at Law aa: Notary Public - State of Ohio B:"3 my commision as no expan dt uIN THE COURT OF COMMON PLEAS CUYAHOGA COUNTY, OHIO STATE OF OHIO, EX. REL., ) FRANCIS X. LALLY, JR,, et al., ) ) Plaintiffs, ) ) VERIFICATION OF PLAINTIFF: v. ) ASSOCATION OF CLEVELAND ) FIRE FIGHTERS, LOCAL 93 OF CITY OF CLEVELAND, OHIO, et ) THE INTERNATIONAL al., ) ASSOCIATION OF FIRE ) FIGHTERS: Defendants. ) 1, Francis X. Lally, Jr. President of the Association of Cleveland Fire Fighters, Local 93 of the Intemational Association of Fire Fighters, being first duly sworn according to law, depose ‘and state that the information contained in the foregoing Verified Complaint in this action is true and correct to the best of my information, knowledge, and belief. Fire Fighters, Local 93 of the International Association of Fire Fighters Sworn and subscribed before me this AA,” day of August, 2019. A, Atay 3 a asa of ON 1 ees mo sesn a