September 1, 2007

Mr. Joseph T. Deters
Hamilton County Prosecuting Attorney
230 E. Ninth Street, Suite 4000
Cincinnati, OH 45202
Re: Request for Initiation of Civil Action Pursuant to R.C. 309.12 et seq.

Mr. Deters:

As a taxpayer and resident of Hamilton County, I am writing to you concerning the use of government resources and computer system to advocate a specific position relative to the forthcoming referendum on the jail-tax increase that will be on the ballot the coming November.

Recently, Sheriff Simon Leis transmitted a letter to all personnel within the Office of the Hamilton County Sheriff wherein Sheriff Leis specifically requested its recipients “to support the proposed sales tax increase,” as well as “encourage[ing] each and every one [of the recipients] to vote YES in November and, between now and November, educate [their] friends, family, associates, and anyone with whom [they] have contact on the absolute necessity to build a new jail.” For your reference a copy of this letter is included with this letter.

It appears that this letter by Sheriff Leis, advocating a position and requesting a specific vote on a pending election matter, was prepared by personnel within the Office of the Hamilton County Sheriff, presumptively on county time, and on computers within the Office of the Hamilton County Sheriff. Additionally, the initial dissemination of the letter, as well as subsequent dissemination by its recipients, appears to have been undertaken utilizing the computer system within the Office of the Hamilton County Sheriff.

Section 9.03(C)(1)(e) of the Ohio Revised Code expressly prohibits a political subdivision from using public funds to communicate information that “[s]upports or opposes the nomination, or recall of a public official, or the passage of a levy or bond issue.” Division (C)(2) of that same section similarly prohibits a political subdivision from using public funds to compensate an employee “for time spent on any activity to influence the outcome of an election for any of the purposes” specified in division (C)(1)(e). And even if Section 9.03 should not be applicable to the advocacy engaged in by Sheriff Leis, there is no statutory authority for a county, or any of its officials, to utilize public funds or resources to advocate for or against any ballot issue or referendum and, thus, such a letter would still constitute an improper use of county funds and resources. See Ohio Att’y Gen’l Opin. 2002-001. For it is well-established that the authority for a public entity to act in financial transactions must be clearly granted, and any doubt must be resolved against a proposed expenditure. See State ex rel. Locher v. Menning, 95 Ohio 97, 99, 115 N.E. 571, 572 (1916).

Accordingly, pursuant to Sections 309.12 to 309.13 of the Ohio Revised Code, I hereby request that you, as County Prosecutor, make application to a court of competent jurisdiction for an order of injunction to restrain the misapplication of funds and/or the completion of an illegal contract; to recover for the use of the county, public moneys misapplied or illegally drawn from the county treasury; and/or to recover damages, for the benefit of the county, resulting from the execution of an illegal contract, viz., to estop the use of any county funds or resources to advocate for or against the referendum on the proposed sales tax that will be on the November ballot, as well as to recover any funds already expended through such efforts.

Please examine the legal issues implicated the use of county funds and resources relative to advocating support or opposition to the referendum on the proposed sales tax and respond expeditiously to us as to your intended manner of proceeding in this matter.

Sincerely,

Brian Shrive