Further Developments

This issue marks the fifth anniversary of the first issue of Squire Sanders’ Ohio Public Law Update. Below are some further developments related to articles in past issues. All of the past issues are available through the publications page of our website.

Continuing Disclosure Filings – EMMA

The article “Continuing Disclosure Filings” in our Winter 2005 Ohio Public Law Update dealt with the filing of information required by continuing disclosure agreements given under Rule 15c2-12 of the Securities Exchange Act of 1934, as amended. Governmental issuers of bonds are obligated under those agreements to submit certain financial and operating information annually, and provide notices of certain specified material events to certain entities including four existing national repositories. In December 2008 the SEC modified Rule 15c2-12 to provide that, effective July 1, 2009, annual and material event information is to be filed with the Municipal Securities Rulemaking Board (MSRB) under its Electronic Municipal Market Access (EMMA) system instead of with those four existing national repositories. The SEC also amended that Rule to require “small issuers” that enter into such agreements on and after July 1, 2009, must also make certain annual flings in the EMMA system. The MSRB has published a notice detailing its requirements for such filings in the EMMA system including that all submissions are to be electronic; all documents submitted must be in PDF and configured to permit documents to be saved, viewed, printed and retransmitted by electronic means (any PDF documents submitted after January 1, 2010 must also be word-searchable); and all submissions must be accompanied by identifying information as prescribed by the MSRB. Further information is available at the SEC’s website and the MSRB’s website.

IRS Tax Compliance Questionnaire Process

The article “IRS to Send Tax Compliance Questionnaire to Governmental Bond Issuers” in our Summer 2008 Ohio Public Law Update discussed in detail the plans by the IRS to send a “Post-Issuance Tax Compliance Questionnaire” to a number of governmental issuers. A newspaper in early December reported that the IRS plans to send those out to about 300 governmental issuers in January, but that could be delayed if the IRS determines that municipal market conditions have not improved. The newspaper also reported that an IRS official indicated that if the responses give the IRS reason to believe that proper due diligence has not been undertaken by a governmental issuer then the IRS might follow up with audits in some cases.

Recent Legislation of Interest

Senate Bill 353, signed by the Governor January 6, 2009 and effective April 7, 2009, authorizes a county with a population exceeding 1.2 million to form a nonprofit county land reutilization corporation (CLRC) to promote economic and housing development and to facilitate the reclamation, rehabilitation and reutilization of vacant, abandoned and foreclosed properties. The board of a CLRC consists of at least five members including the County Treasurer, at least two members of the Board of County Commissioners, and two members selected by the County Treasurer and the members of the Board of County Commissioners serving on the CLRC board and approved by a majority of chief executives of the municipal corporations located mostly in the county.

The CLRC operates as a type of community improvement corporation under Revised Code Chapter 1724. In addition to establishing the powers of the CLRC, the Bill expands the authority of existing community improvement corporations. The Bill also provides authority for the county to provide funding to the CLRC including by issuing special obligations secured by a pledge of the collection of delinquent taxes, by entering into lines of credit or from certain appropriated county funds. A county-wide voted tax levy also could fund CLRC operations.

A municipal corporation may enter into an agreement with the CLRC for the CLRC to act as its agent to remove or repair hazardous conditions and nuisance buildings. The Bill also revises the expedited, nonjudicial foreclosure procedure for abandoned lands.

In addition, this Bill requires all port authorities to prepare plans for future development and facilities including the location and character of work and a description of all related financings, leases, tax abatements, tax increment financing and other financial incentives and assistance. The port authority is required to give or serve notices and hold public hearings on those plans and on any amendments.

Senate Bill 277, signed by the Governor January 6, 2009 and effective April 7, 2009, establishes a cause of action for a municipal corporation in municipal court, if an environmental division of the municipal court has been established, to foreclose any existing liens on a blighted parcel located in the municipal corporation, provided that no other foreclosure action for that parcel is pending. If a judicial sale of the blighted parcel is ordered, the proceeds of the sale generally would be distributed according to priorities established by law. However, if a taxing authority waives its rights to collect delinquent taxes or fails to timely respond to a request, the property may be sold at judicial sale free and clear of such lien, unless the property is sold to a lien holder of the property.

House Bill 359, effective September 30, 2008, extends to all counties with a population greater than 100,000 the authority to use up to $3 million of surplus delinquent tax collections to demolish or facilitate nuisance abatement of foreclosed residential buildings upon application by municipal corporations or townships. The prosecuting attorney also may use the funds to pay costs of prosecuting alleged violations of criminal and civil laws governing real estate related transactions including fraud and abuse cases.

House Bill 420, signed by the Governor on December 30, 2008 (most provisions effective on December 30, 2008), among other things, expands the scope of municipal energy conservation projects and removes the 10-year limitation on the maturity of general obligation debt issued for municipal energy conservation projects. The maturity of such general obligation debt would instead be based on the fiscal officer’s estimate of the estimated life or period of usefulness of the permanent improvements funded.

House Bill 458, signed by the Governor on December 30, 2008 and effective as of that date, authorizes townships to use general fund moneys derived from the levy of inside millage for road and bridge construction and repair purposes. The Ohio Attorney General, by Opinion No. 2008-09 (described in our Spring 2008 Ohio Public Law Update), previously had restricted certain of those expenditures based on the law in effect before enactment of this Bill.

Recent Decisions of Interest

Failure by a Board of Revision to send notice of valuation hearing to taxpayer’s proper address rendered its order increasing property value invalid. Where statute does not specify address to be used, taxpayer should have been served at an address that is reasonably calculated to give notice to the taxpayer. Knickerbocker Properties, Inc. XLII v. Delaware Cty. Bd. of Revision, 119 Ohio St.3d 233

R.C. 2305.10 is Ohio’s general statute of limitations for personal injury and thus is applicable to claims under Section 1983, Title 42, U.S. Code, filed in state court. Nadra v. Mbah, 119 Ohio St.3d 305

Candidate for county engineer was not required to be a county resident since the requirement of R.C. 3.15(A) that each “person holding an elective office of a political subdivision shall be a resident of that political subdivision” applies only to persons who have been elected or appointed to such office. State ex rel. Addis v. McClenen, 119 Ohio St.3d 500

A municipal ordinance which prohibits licensed handgun owners from carrying concealed handguns in municipal parks, is not a valid exercise of the municipality’s home-rule power according to Section 3, Article XVIII of the Ohio Constitution, since the ordinance is an exercise of the municipality’s police power that conflicts with a general law (R.C. 2923.126), and therefore the ordinance is unconstitutional. Ohioans for Concealed Carry, Inc. v. Clyde, 120 Ohio St.3d 96

An otherwise qualified citizen must be registered to vote for 30 days as of the election in which the citizen offers to vote in order to be a qualified elector, but need not be registered for 30 days before applying for, receiving or completing an absentee ballot. State ex rel. Colvin v. Brunner, 120 Ohio St.3d 110

Ohio’s commercial activity tax (codified in R.C. Chapter 5751, effective June 30, 2005), “when applied to gross receipts from the wholesale sale of food and from the retail sale of food for human consumption off premises where sold, operates as, and is, an excise tax levied or collected upon the sale or purchase of food, which is prohibited by Sections 3 and 13 of Article XII of the Ohio Constitution.” Ohio Grocers Association v. Wilkins, 2008-Ohio-4420 (Ohio App. 10th Dist.) NOTE: the State has appealed this decision to the Ohio Supreme Court (Case No. 08-2018) and in its Motion in Support of Jurisdiction stated that “[a]dditionally, this case is of paramount interest to schools and local governments, whose funding would be substantially compromised.”

Plaintiff in class action against County Clerk of Courts alleged sufficient facts to survive a motion to dismiss since the facts alleged (Clerk allegedly continued to maintain online database of traffic citations with unfettered public access that contained personal, private information, such as social security numbers, even after learning that the database was being used to facilitate identity theft), if determined to be true, supported a cause of action for invasion of privacy, public nuisance and violations of Ohio’s Privacy Act (R.C. Chapter 1347). Plaintiff’s claims were not barred by the Political Subdivision Tort Liability Act (R.C. Chapter 2744). Lambert v. Hartman, 2008-Ohio-4905 (Ohio App. 1st Dist.)

A community improvement corporation that is established under R.C. Chapter 1724 and receives financial support from a municipal corporation and a township does not have authority to contribute funds or other resources to an entity established to support or oppose a ballot issue relating to the proposed merger of the municipal corporation and township. “The principle that, absent clear statutory authority, public money may not be expended to promote or oppose ballot issues reflects the conviction that the right to approve or reject a ballot issue of any sort is bestowed upon the electors, and unauthorized public expenditures to influence their votes would interfere with that right.... This principle is based upon the understanding that public moneys are held in trust for the benefit of the public and may be expended only by clear authority of law…. Any doubt as to the authority to expend public funds must be resolved in favor of the public trust and against the expenditure.” 2008 Op. Att’y General No. 2008-035

Absent a charter provision, ordinance, resolution or language of a collective bargaining agreement declaring otherwise, R.C. 124.57(A) prohibits a person in the classified service of a city from being elected to a public office in a partisan election or accepting a party-sponsored appointment to a public office that is normally filled by partisan election. 2008 Op. Att’y General No. 2008-037

Pending Case of Interest Which Could Impact Ohio Lease-Purchase Financings

A complaint was filed in November 2008 by the Summit County Port Authority against the Township of Twinsburg, alleging that the township breached its lease-purchase agreement with the port authority for a new township building financed by the port authority through the issuance of the port’s revenue bonds. This case has received attention nationally in The Bond Buyer as well as in several Ohio newspapers. Its ultimate outcome may have an impact on lease-purchase financings in Ohio.