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IN THE SUPREME COURT OF OHIO

State of Ohio ex rel. : Delaware Joint Vocational :School District Board of Education : 4565 Columbus Pike : Case No.Delaware, Ohio 43015 :

: :

Relator, : Original Action in Mandamus:

v. : : Expedited Relief Requested

Joseph W. Testa, : Ohio Tax Commissioner : 30 East Broad Street, 22nd floor : Columbus, Ohio 43215 :

: Respondent. :

COMPLAINT FOR WRIT OF MANDAMUS

Maria J. Armstrong (0038973) Counsel of RecordAnne Marie Sferra (0030855) Nicole M. Donovsky (0072262) BRICKER & ECKLER LLP 100 South Third Street Columbus, Ohio 43215 Telephone: (614) 227–2300 Facsimile: (614) 227–2390 E-mail: marmstrong@bricker.comE-mail: asferra@bricker.comE-mail: ndonovsky@bricker.com

Counsel for Relator

Supreme Court of Ohio Clerk of Court - Filed January 17, 2017 - Case No. 2017-0079

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COMPLAINT FOR WRIT OF MANDAMUS

PRELIMINARY STATEMENT

The Delaware Joint Vocational School District Board of Education, also known as the

Delaware Area Career Center (“DACC”), brings this original action requesting that a writ of

mandamus be issued against Respondent Joseph W. Testa, Ohio Tax Commissioner

(“Respondent”), ordering him to fulfill his duties in accordance with Ohio law to approve a tax

levy calculation for collection on behalf of the DACC. This matter arises from an election held

on November 3, 2015 to place a tax levy for renewal on the ballot for DACC.

The levy, which had been in place since 2001 and was renewed by voters of the DACC

school district in 2005, would have ceased collection at the end of 2016 unless renewed again.

DACC sought to renew the levy at the earliest time possible and followed all of the requisite

procedures to place the issue on the ballot for the 2015 General Election (the “Renewal Levy”).

The Renewal Levy passed by more than 10,000 votes. Believing its revenue stream to be secure,

DACC continued to plan for ongoing operations, to pursue its long-term, ongoing campus

consolidation project, and to continue with a major construction project to enhance the career-

technical education of students.

Over a year later, now in the midst of a major construction project with a series of

contractual obligations in place, DACC received a heart-wrenching telephone call from the

Delaware County Board of Elections (“DCBOE”). An error made by the former Director of the

DCBOE relating to the 2015 election had just been discovered. The revenue from the Renewal

Levy that DACC depends upon for its existence ‒ approximately $7.1 million in 2017 alone ‒

was in jeopardy.

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DACC is a multi-county joint vocational school district. More than 99% of the property

value of the district is located in Delaware County, but DACC also covers very small pockets of

Franklin, Marion, Morrow, and Union Counties (collectively, the “DACC Territory”). Once

DACC properly certified the Renewal Levy to DCBOE for placement on the ballot, DCBOE was

statutorily responsible to notify Franklin, Marion, Morrow, and Union Counties to place the issue

on the ballot in the appropriate precincts in those counties. Due to an error by DCBOE, that

notification never occurred and the Renewal Levy never appeared on the ballot in the applicable

precincts in Franklin, Marion, Morrow, and Union Counties. Less than 1% of the registered

voters in the DACC Territory (1,026 total registered voters) reside outside of Delaware County

and thus did not have an opportunity to vote on the Renewal Levy.

Despite the DCBOE’s failure to properly notify all counties within the DACC Territory,

the Renewal Levy did appear on the ballot in Delaware County and passed by 10,644 votes.

Even if every eligible voter from Franklin, Marion, Morrow and Union Counties voted in the

2015 General Election and voted against the Renewal Levy, the issue still would have passed by

a significant margin of 9,618 votes.

As the board of elections for the most populous district in the DACC Territory, the

DCBOE has the statutory authority and responsibility to declare the results of the election and it

did so when it issued the Certificate of Result of Election on November 20, 2015. No election

challenge was raised and DCBOE’s certification became conclusive. State ex rel. Shriver v.

Hayes, 148 Ohio St. 681 (1947).

However, when the Renewal Levy tax was submitted to the Respondent for approval, the

Respondent refused to approve the tax calculations. Citing the DCBOE error and the election

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irregularity, Respondent believed that he was without statutory authority to carry out his

ministerial duty and refused to accept the DCBOE Certificate of Result of Election.

This Court has routinely held that the results of an election will not be invalidated absent

an affirmative showing that enough votes were affected by any alleged irregularity to change the

results of the election. In re Election on Issue of Zoning, 2 Ohio St. 3d 37, 38-39 (1982); In re

Contest of Election Held on Stark County Issue 6, 132 Ohio St. 3d 98, 101-102 (2012); Beck v.

Cincinnati, 162 Ohio St. 473, 476 (1955). Further, Ohio law is clear that in the absence of fraud,

election laws must be construed to preserve, rather than defeat, the will of the voters as expressed

at an election. McNamara v. Kinney, 70 Ohio St. 2d 63, 67 (1982) (holding that the

Commissioner of Tax Equalization’s interpretation of a tax levy was erroneous because

“[e]lection laws are to be construed liberally so as to preserve, if possible, and not defeat the

choice of the people as expressed at an election.”) (internal quotations and citation omitted.)

Not only is the DACC election valid, but the Respondent has no legal authority to refuse

to honor the declaration of the election results made by the DCBOE under these circumstances.

In the absence of a proper election challenge, a certificate of election cannot be subject to

collateral attack. State ex rel. Daoust v. Smith, 52 Ohio St. 2d 199, 200 (1977) (finding that

refusal to carry out a “mandatory and ministerial” duty to issue tax anticipation notes because of

election irregularities was “unfounded and improper. Respondent’s action disenfranchises the

majority of the participating electors within the district who approved the school tax levy.”)

Respondent, however, questioned the validity of the election and requested “something

from the [Ohio Secretary of State] that shows this to be a valid levy.” In response to this request,

the Delaware County Prosecuting Attorney’s Office provided a letter to the Respondent that

explained the legal authority of the DCBOE as the board of elections in the most populous

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county and made clear that the Secretary of State “has no role in this process.” The letter further

confirmed the DCBOE’s authority to determine the results of the election in the entire DACC

Territory under these circumstances and despite the errors that occurred. In fact, the Ohio

Secretary of State’s Office confirmed the County Prosecutor’s conclusions regarding the

authority of the DCBOE and Secretary’s Office in this matter. Despite the Prosecutor’s letter and

the valid Certificate of Result of Election issued by the DCBOE, Respondent still refused to

approve the tax calculation. As a result, the Renewal Levy tax did not appear on the property tax

bills issued for the first half of 2017 for any county, effectively invalidating the election results

and stopping the tax collection process.

On January 9, 2017, Respondent’s counsel replied to the County Prosecutor’s letter and

explained that Respondent did not have the authority to approve the tax rate because the County

did not provide a Form 5-U “Certification of Official Results by Most Populous County for Local

Questions and Issues.” As the Respondent observed, Form 5-U “cannot be provided” because

the vote did not take place in the entire DACC Territory.

DACC contends Form 5-U is not statutorily required and that, between DCBOE

Certificate of Result of Election and the County Prosecutor’s letter, Respondent had the same

information that would have been conveyed on a Form 5-U. Notwithstanding the inability to file

a Form 5-U, Respondent had sufficient notice of the validity of the election for the entire DACC

Territory.

Despite the errors made by DCBOE, the November 3, 2015 election is valid and the

Respondent has no authority to determine otherwise. Through no fault of its own, DACC now

finds itself in an urgent and extremely dire situation. In addition, the 28,457 voters who

approved the Renewal Levy have been effectively disenfranchised by this series of events. There

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is no adequate remedy at law and this unusual situation can be remedied only by issuance of a

writ of mandamus or other writ from this Court. DACC asks this Court to find that the

Respondent lacked authority to declare the election results invalid (or simply disregard them) and

order him to take the necessary steps to approve the taxes due, thus allowing Relator to collect

those taxes.

JURISDICTION

1. This Court has original jurisdiction pursuant to Section 2(B)(1)(b), Article IV of the Ohio

Constitution, Ohio R.C. 3503.04, and Chapter 2731 of the Ohio Revised Code.

PARTIES

2. DACC is a joint vocational school district and political subdivision, created pursuant to

Ohio Revised Code Chapters 3303 and 3311 and operates under the statutes and

regulations of the State of Ohio. DACC provides vocational (career-technical) education

for students in Delaware County, and portions of Franklin, Marion, Morrow and Union

Counties. Affidavit of Christopher Bell (“Bell Affidavit”), Exhibit 1 hereto.

3. DACC Territory includes approximately 70,045 parcels, 68,938 of which are located in

Delaware County. The remaining parcels (representing 1.6% of the DACC Territory) are

located in Franklin, Marion, Morrow and Union Counties. Affidavit of George Kaitsa

(“Kaitsa Affidavit”), Exhibit 2 hereto.

4. DACC provides education to high school students on its campuses and at satellite

locations. At the beginning of the 2016-2017 school year, DACC enrolled a total of

1,416 high school students. In addition, during Fiscal Year 2016, DACC served 316

adults—117 full-time, adult learners and 199 adult, part-time learners. Affidavit of Mary

Beth Freeman (“Freeman Affidavit”), Exhibit 3 hereto.

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5. Respondent Joseph W. Testa is the Tax Commissioner for the State of Ohio Department

of Taxation.

FACTUAL BACKGROUND

Certification of the DACC Property Tax Levy

6. Until December 31, 2016, DACC was collecting revenue from a ten-year, 1.7 mill levy

for the purpose of (i) improving, renovating, remodeling, enlarging, furnishing, and

equipping school buildings and facilities at a rate of 0.4 mills, and (ii) providing for the

current expenses of the school district at a rate of 1.3 mills (the “Former Levy”). Bell

Affidavit, Exhibit 1.

7. The Former Levy was first approved by voters in the DACC Territory in 2001, and

renewed on November 8, 2005. The Former Levy was collected continuously through

that period, with final collection in 2016. Id.

8. The Former Levy ceased collection on December 31, 2016, and will no longer generate

any revenue for DACC. Id.

9. On June 23, 2015, in anticipation of the expiration of the Former Levy, DACC passed a

resolution of necessity to renew the Former Levy in its entirety (the “Renewal Levy”).

Id. A true and accurate copy of the Resolution of Necessity is attached as Exhibit 1-A.

10. The Delaware County Auditor signed the Certificate of Estimated Property Tax Revenue

on or about June 26, 2015, indicating that the proposed Renewal Levy would result in

estimated property tax revenue of $7,119,937 in 2017. Kaitsa Affidavit, Exhibit 2. A

true and accurate copy of the Certificate of Estimated Property Tax Revenue is attached

hereto as Exhibit 2-A.

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11. On July 16, 2015, DACC passed a resolution to proceed with the Renewal Levy, pursuant

to R.C. 3311.21 and R.C. 5705.25, to be collected for a period of ten (10) years

(“Resolution to Proceed”). Bell Affidavit, Exhibit 1. A true and accurate copy of the

Resolution to Proceed is attached hereto as Exhibit 1-B.

12. In the Resolution to Proceed, DACC determined to submit the question of the Renewal

Levy to electors of the DACC Territory on November 3, 2015, which was the first

possible election legally available to DACC to renew the Former Levy. Id.

The Election

13. R.C. 3311.21 requires that the “school district board of education shall certify the

resolution [to proceed] to the board of elections of the county containing the most

populous portion of the district * * *.”

14. DACC certified the Renewal Levy to the DCBOE because DCBOE is the board of

elections of the county containing the most populous portion of the DACC Territory.

Bell Affidavit, Exhibit 1.

15. DACC certified the Renewal Levy in accordance with Ohio law to be levied for a period

of ten (10) years and placed upon the tax list and duplicate for the 2016 tax year

(commencing in 2016, first due in calendar year 2017), if approved by a majority of the

electors voting thereon. Id.

16. The DCBOE is the board of elections for the most populous county in the DACC

Territory and thus was responsible for coordination of election matters in DACC

Territory pursuant to R.C. 3311.21 and R.C. 3505.071. Affidavit of Karla Herron

(“Herron Affidavit”), Exhibit 4 hereto.

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17. R.C. 3311.21 required the DCBOE to “receive resolutions for filing and send them to the

boards of elections of each county in which territory of the district is located, furnish all

ballots for the election as provided in R.C. 3505.071 of the Revised Code, and prepare

the election notice.”

18. R.C. 3505.071 requires that when “a school district extends into one or more counties

*** such county board of elections shall, within ten days after such filing, send to all

other boards of elections of counties having territory within the school district, notice of

such filing. The county containing the most populous portion of the school district shall

furnish all ballots for school questions and issues for the school district.”

19. DCBOE received a certified copy of DACC’s Resolution to Proceed and the Resolution

of Necessity as well as a Certificate of Estimated Property Tax Revenue from the County

Auditor. Josh Pedaline (“Pedaline”), the former Director of Elections for the DCBOE,

acknowledged receipt of these documents. Herron Affidavit, Exhibit 4.

20. The DCBOE was required by R.C. 3311.21 and R.C. 3505.071 to file resolutions for the

Renewal Levy with all of the counties within the DACC Territory so the Renewal Levy

would appear on the ballot in all precincts within the DACC Territory. Id.

21. The DCBOE was also required to file a “Report Form on Local Questions and Issues”

(Form 126-C) with the Ohio Secretary of State (“Secretary”). Among other things, Form

126-C requires the most populous county to indicate whether overlapping counties are

involved in the local election and, if so, that those overlapping counties be listed. Herron

Affidavit, Exhibit 4. A true and accurate copy of Form 126-C is attached hereto as

Exhibit 4-B.

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22. Due to an error by the DCBOE, the Form 126-C for the Renewal Levy that was filed with

the Secretary on August 25, 2015 indicates that there are “no” overlapping counties and

is blank where Franklin, Morrow, Marion, and Union counties should have been listed.

Herron Affidavit, Exhibit 4.

23. The error was not realized until over a year later when it was discovered that the Renewal

Levy did not appear on the ballot in Franklin, Marion, Morrow, or Union Counties. Id.

24. While the total number of registered voters in the DACC Territory in 2015 was

approximately 111,056, 1,026 of these voters were registered in Franklin (56), Marion

(8), Morrow (959), and Union (3) counties—approximately 0.9% of all voters in the

DACC Territory. Id.

25. A total of 46,270 voters voted on the Renewal Levy during the General Election held on

November 3, 2015—28,457 electors voted in favor of the Renewal Levy and 17,813

electors voted against the Renewal Levy. Id.

26. The Renewal Levy passed by 10,644 votes. Id.

27. The DCBOE issued a Certificate of Result of Election on November 20, 2015

(“Certificate of Result”), attested to by Pedaline, and submitted to the Secretary. Id. A

true and accurate copy of the Certificate of Result is attached hereto as Exhibit 4-C.

28. The DCBOE is the entity statutorily responsible “to determine and declare the results of”

a multi-county election in this situation, pursuant to R.C. 3505.37.

29. Relying upon the Certificate of Result and believing that the property tax levy funding

was renewed for 2017 through 2026, DACC proceeded with its plans to consolidate its

North and South Campuses (“Campus Consolidation”). Freeman Affidavit, Exhibit 3.

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30. DACC was also relying on the levy to enhance and expand DACC’s delivery of career

and technical educational programming, to add new programming expand student

services, and to provide professional development to its staff. Id.

Approval of the Tax Collection

31. On February 18, 2016, DACC approved a tax budget for 2017 pursuant to R.C. 5705.28

and certified it to the Delaware County Auditor and Budget Commission. Bell Affidavit,

Exhibit 1. A true and accurate copy of the DACC Board Resolution approving the tax

budget, email communication submitting the tax budget, the tax budget and Certificate of

Available Resources are attached hereto as Exhibit 1-C.

32. The DACC tax budget demonstrated DACC’s need for the revenue from the Renewal

Levy during 2017 and in subsequent years for necessary permanent improvements and

operating expenses. Id.

33. On February 26, 2016, pursuant to R.C. 5705.31, the county budget commission issued

an official Certificate of Estimated Resources to DACC pursuant to R.C. 5705.34, which

included the Renewal Levy. Kaitsa Affidavit, Exhibit 2.

34. Pursuant to R.C. 5705.34, DACC authorized its tax levies, including the Renewal Levy,

for 2017 and certified them to the Delaware County Auditor. The Delaware County

Auditor entered the taxes for Delaware County taxing districts into the proposed tax list

and duplicate pursuant to R.C. 319.30. Id.

35. On December 5, 2016, pursuant to R.C. 5715.23, the Delaware County Auditor delivered

the abstract of tax rates to Respondent and requested that Respondent perform statutorily-

required calculations with respect to the levies to be imposed for the Tax Levy Year

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2016/Tax Collection Year 2017 within Delaware County, including the Renewal Levy.

Id. A true and accurate copy of the abstract of tax rates is attached hereto as Exhibit 2-C.

36. Respondent was obligated to determine the tax reduction factors for each levy within

Delaware County, including the Renewal Levy, pursuant to R.C. 319.301. Without

Respondent’s determination, collections for the renewal levy could not proceed.

37. On or about December 8, 2016, the Delaware County Auditor contacted Shelley Wilson

(“Wilson”), Tax Program Executive within the office of Respondent, regarding concerns

over the election process regarding the Renewal Levy. Kaitsa Affidavit, Exhibit 2.

38. On December 9, 2016, Wilson, on behalf of Respondent, requested the Delaware County

Auditor obtain “some sort of certification or determination from the [Secretary] to

indicate the issue passed in a valid election.” E-mail from Wilson to Kaitsa, December 9,

2016, Exhibit 2-G.

39. On December 14, 2016, the Delaware County Prosecutor’s Office submitted a letter

(“Prosecutor’s Letter”) to Relator explaining the DCBOE’s legal authority pursuant to

R.C. 3505.37 to “determine and declare” the results of an election in multi county

districts. Id. A true and accurate copy of the Prosecutor’s Letter is attached hereto as

Exhibit 2-H.

40. The Ohio Secretary of State’s Office has subsequently confirmed that as the “board

representing the most populous county in the DACC district, the Delaware County Board

of Elections is statutorily responsible “to determine and declare the results of” a multi-

county election pursuant to R.C. 3505.37.” Affidavit of Carolyn Kuruc, (“Kuruc

Affidavit”) attached as Exhibit 5 hereto.

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41. The Prosecutor’s Letter further explained that the Secretary “has no role in this process,

other than to receive certified results of the election.” Exhibit 2-H.

42. The Secretary has subsequently confirmed that the Secretary’s Office “has no statutory

authority to declare the results of a local election whether the issue or candidacy involved

was voted upon within a single county or was in a multi-county jurisdiction.” Kuruc

Affidavit, Exhibit 5.

43. The Prosecutor’s Letter further advised that the DCBOE Certification or Election Results

(Exhibit 2-C) “should be accepted as proof of the results of the election on the levy and

that the levy was approved. No additional documentation should be required for the

[Respondent] to certify the tax rates. Further, the outcome of the election on the levy

could not have changed even if the levy were submitted to the other counties. Thus, the

approval of the levy is sound and can be relied upon to issue the tax rates.” Exhibit 2-H.

44. The Secretary’s Office has subsequently confirmed that the “determination and

declaration of a county board of elections for the most populous county in a multi-county

jurisdiction is conclusive as to the results of a multi-county election.” Kuruc Affidavit,

Exhibit 5.

45. On December 15, 2016, Respondent’s office informed the Delaware County Auditor that

it would not provide the required calculations and certification to allow the Renewal

Levy to be collected “pending further research by our legal staff and consultation with the

Secretary of State. If the election is determined to be valid, we will issue correcting tax

rates for affected districts.” Kaitsa Affidavit, Exhibit 2, E-mail from Wilson to Kaitsa,

December 15, 2016, Exhibit 2-G.

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46. Respondent further notified the Delaware County Auditor that, pursuant to R.C. 5715.28,

Respondent’s decision was binding unless reversed or modified by a court. Kaitsa

Affidavit, Exhibit 2.

47. On or about December 16, 2016, the current Director of the DCBOE, contacted DACC

Superintendent, Mary Beth Freeman, and indicated that there was an issue with the

Renewal Levy. Freeman Affidavit, Exhibit 3.

48. As a result of this communication, two weeks before the Former Levy revenue ceased

collection, DACC first learned that the Renewal Levy was in jeopardy of not being

collected in 2017-2026. Id.

49. On January 9, 2017, Respondent’s counsel issued a reply to the Prosecutor’s Letter

(“Respondent’s Reply”), explaining that Form 5-U (Certification of Official Results by

Most Populous County for Local Questions and Answers) was required by the Secretary

of State and that the Respondent’s request for “a Certification of the Official results for

the levy is imminently reasonable.” A true and accurate copy of Form 5-U is attached as

Exhibit 6.

50. Respondent’s Reply noted that the Respondent “would accept the certification in any

format that shows the breakout of the vote for all counties included in the DACC District,

but the certification must be for the vote of the entire District.” Id.

51. The Respondent’s Reply then concluded that “The Tax Commissioner does not have the

authority to certify tax rates to county auditors to assess tax to property owners absent a

certificate from the [board of elections] showing the vote for the entire district.” Id.

52. The Certificate of Result coupled with the Prosecutor’s Letter provides the “breakout of

votes for all counties included in the DACC District” as requested in the Respondent’s

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Reply: 28,457 electors voted for the Renewal Levy in Delaware County; Zero electors

voted for the Renewal Levy in other counties.

53. The Certificate of Result coupled with the Prosecutor’s Letter demonstrates the vote for

the entire DACC Territory and that the Renewal Levy passed.

Effect of Lost Property Tax Revenue

54. As a result of the Respondent’s actions, tax bills sent to property owners in the DACC

Territory to be collected for the first half of 2016 in 2017 did not include the Renewal

Levy for the DACC, as approved by the voters in November 2015, in any of the five

counties in DACC Territory. Kaitsa Affidavit, Exhibit 2.

55. Tax revenue was anticipated to be collected from the Renewal Levy starting with the first

tax billing cycle in calendar year 2017, anticipated to be received in March, 2017. Bell

Affidavit, Exhibit 1.

56. In the first year of anticipated collection alone, DACC will experience a net loss of $4.4

million of Renewal Levy revenue, as a result of Respondent’s refusal to calculate and

certify the taxes from the Renewal Levy (unless the tax bills issued for the second-half of

2017 are corrected to reflect the Renewal Levy). Bell Affidavit, Exhibit 1.

57. The loss of revenue from the Renewal Levy is mitigated in part by a statutorily required

adjustment of funding, resulting in a net loss to DACC of $4.4 million per year for each

of the ten years of Renewal Levy collections. If this Court orders that the Renewal Levy

revenue can be collected, this adjustment will be reversed, so DACC does not experience

a windfall. Id.

58. Placing a property tax levy on the ballot in 2017 will not resolve this situation even if the

levy passes. A property tax on the ballot in 2017, if passed, will not be due or collected

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until 2018. Additionally, DACC’s taxpayers would pay 100 percent of such property tax

(instead of 87.5%) since new levies do not qualify for property tax rollbacks under R.C.

319.302. Id.

59. As a result of the potential loss in revenue, DACC faces uncertainty with respect to its

fiscal designation by the State, the future of its Campus Consolidation, educational

programming and enrollment, staffing and labor negotiations. Id.

Fiscal Emergency

60. Since 70% of DACC’s revenues relate to property taxes, without the revenue from the

Renewal Levy, DACC may be placed in fiscal emergency by the State Auditor pursuant

to R.C. 3316.04.

61. The mandatory triggers for school district fiscal emergency are as follows: (1) the

Auditor of State has certified an operating deficit for the current fiscal year that exceeds

15% of the school district’s General Fund revenue for the preceding fiscal year (FY); and

(2) the voters have not approved a levy that would raise enough money in the next year to

eliminate the deficit.

62. The net loss of approximately $2,211,668.00 (first half 2016 collections from the

Renewal Levy reflected in FY 2017) by itself constitutes 13.5% of FY 2016 General

Fund revenue of $16,348,025. Id.

63. If DACC is placed in fiscal emergency, its students will experience abrupt reductions in

programs and instructors at a time when there are already shortages in skilled trades in

Central Ohio. Additionally, the Campus Consolidation may also have to be suspended.

Freeman Affidavit, Exhibit 3.

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Ongoing Construction Project

64. The Campus Consolidation has an estimated cost of $45,000,000 and is expected to result

in many benefits for DACC students, including reduced busing time, increased

collaboration time for students, new programming for students, and ready access to all

DACC services and staff. Id.

65. DACC has engaged SHP to provide architectural services related to a campus

consolidation and construction project, at a cost of approximately $3.9 million, with

approximately $2.6 million paid through December 31, 2016. Id.

66. DACC has engaged Elford Construction to provide construction services related to a

campus consolidation and construction project, at a cost of approximately $38.3 million,

with approximately $1.4 million paid through December 31, 2016. Id.

67. If the Campus Consolidation is suspended, there will be considerable expense and waste

that results. Id.

Staffing and Labor Negotiations

68. DACC currently employs approximately 120 regular, full-time staff and 129 part-time

adult education staff. Id.

69. Due to the impending net loss of $4.4 million in revenue annually for 2017-2026, DACC

will be forced to reevaluate its Campus Consolidation, instructional improvements,

programming, and staffing. Freeman Affidavit, Exhibit 3.

70. DACC is party to a Negotiated Agreement with the Delaware Area Career Center

Education Association, which expires on July 1, 2017. Id.

71. A net loss of $4.4 million in annual revenue from 2017-2026 will impact DACC’s ability

to negotiate a successor agreement, and potentially, the terms and conditions of the

existing Negotiated Agreement. Id.

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Educational Programming and Enrollment

72. At the beginning of the 2016-2017 school-year, 1,416 high school students were enrolled

at DACC at its campuses and satellite programs. Freeman Affidavit, Exhibit 3.

73. During Fiscal Year 2016, DACC served 117 full-time, adult learners, while 199 adult

learners enrolled in part-time career enhancement programs, for a total of 316 adults

being served by DACC. Id.

74. DACC has experienced an increase in enrollment annually, and exceeded its enrollment

projections in 2016-17. Id.

75. With the decrease in revenue that will likely impact campus consolidation,

improvements, programming, and staffing, DACC expects a resulting decrease in

enrollment. Id.

FIRST CLAIM FOR RELIEF

Relator Has A Clear Legal Right and Respondent Has A Clear Legal Duty To Certify DACC Property Tax Collections

76. Relator repeats the above allegations as if fully restated herein.

77. Relator took all necessary and statutorily required actions to place the Renewal Levy on

the 2015 General Election ballot and the election was held on November 3, 2015. The

election results were duly certified by DCBOE on November 20, 2015.

78. The Prosecutor’s Letter from the Delaware County Prosecutor’s Office contained election

results from Delaware County, sufficient information regarding other counties, and a

determination as to the results of the election to provide Respondent with the information

needed to carry out his ministerial duty and certify the tax collection.

79. Since the Renewal Levy passed by a significant margin and was properly certified by the

DCBOE, and since no showing can be made that enough votes were affected by any

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alleged irregularity to change the results of the election, the election is valid and must be

honored by Respondent.

80. There is no statutory authority for the Secretary to declare the results of a local election.

The authority to “determine and declare the results of the election” rests with the county

boards of elections. R.C. 3505.37. Kuruc Affidavit, Exhibit 5.

81. Respondent has no authority to determine the results of an election and must accept the

results that are certified to him.

82. Relator has a clear legal right to have Respondent approve the tax collection for the

Renewal Levy in the entire DACC Territory.

83. R.C. 5703.05(H) charges Respondent with making all computations and orders required

under law to be made by the Ohio Department of Taxation.

84. Respondent has a mandatory and ministerial obligation under R.C. 319.301, with respect

to each tax authorized to be levied by a taxing district, to provide certain calculations to

county auditors as are necessary to establish the effective rate of each levy.

85. Respondent is obligated under R.C. 319.301 to approve the calculations specified therein

to each county in the taxing district regardless of whether he receives a specific request to

prepare the same.

86. Respondent has a mandatory duty under R.C. 5705.341 to issue such orders and

instructions as may be necessary with respect to the duties of any “county auditor, or

other officer which relate to * * * the levy and collection of taxes [and to] cause the

orders and instructions issued by the [tax] commissioner to be obeyed.”

87. Respondent has a clear legal duty to provide the necessary calculations with respect to the

Renewal Levy pursuant to R.C. 310.301.

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88. Respondent has no legal authority to question or review the validity of the underlying

election or circumvent the decision of the electorate to authorize the tax.

89. By refusing to approve the tax calculations from the Renewal Levy, Respondent

effectively invalidated the Renewal Levy election and circumvented the will of the

28,457 voters who cast their votes in support of the Renewal Levy.

90. Ohio law provides no other mechanism for Relator to obtain the calculations and

approval required under R.C. 319.301 or otherwise to compel Respondent to provide the

same.

91. Respondent’s failure to approve the tax collection for the Renewal Levy has created a

drastic and significant injury to DACC for which there is no adequate remedy at law.

SECOND CLAIM FOR RELIEF

Relator Has A Clear Legal Right To Have Property Tax Collected From All Taxpayers In Delaware County

92. Relator repeats the above allegations as if fully restated herein.

93. Despite the DCBOE’s error that resulted in the failure to place the Renewal Levy on the

ballot in portions of Franklin, Marion, Morrow and Union Counties, the results of the

election in Delaware County alone are not in question.

94. The Renewal Levy was duly certified and properly appeared on the ballot in Delaware

County.

95. Upon receipt of the an Abstract of Tax Rates from the Delaware County Auditor,

Respondent had a mandatory obligation to provide the calculations requested under R.C.

319.301 so that the Delaware County Auditor, DACC, and the other taxing districts in

Delaware County may proceed to levy taxes in 2017, previously approved by voters.

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Respondent has no legal authority or discretion to determine which requested calculations

to provide, and which to decline to provide.

96. By refusing to approve the tax calculations from the Renewal Levy for at least Delaware

County, the will of 28,457 voters in Delaware County who cast their ballot in support of

the Renewal Levy was circumvented.

97. Respondent’s failure to approve the tax collection for the Renewal Levy in at least

Delaware County has created a drastic and significant injury to DACC for which there is

no adequate remedy at law.

THIRD CLAIM FOR RELIEF

Respondent’s Actions Operate As An Improper Election Action

98. Relator repeats the above allegations as if fully restated herein.

99. Ohio law provides that an election contest is the specific remedy for the correction of

errors or mistakes “which may occur in the process of determining and declaring the true

expression of the public will as expressed at the voting booth * * *” State ex rel. Byrd. v.

Summit County Board of Elections, 65 Ohio St.2d 40, 417 N.E.2d 1375.

100. Ohio law is clear that an election contest is only appropriate if it can be shown by clear

and convincing evidence that an election irregularity affected enough votes to change or

make uncertain the results of an election. Maschari v. Tone, 103 Ohio St.3d 411, 2004-

Ohio-4342.

101. A determination that election irregularities resulted in the invalidity of the election can

only be raised in the context of an election contest.

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102. Respondent does not have the authority to invalidate the results of the election or decide,

in the context of a property tax approval, a matter that can only properly be raised in an

election contest.

103. Because the results of the election cannot be changed or made uncertain as a result of the

DCBOE error, an election contest, or any action that effectively serves as an election

contest, is inappropriate.

PRAYER FOR RELIEF

Relator respectfully requests this Court to issue a peremptory writ of mandamus or other

writ:

(a) Ordering Respondent to immediately approve the tax collections in DACC

Territory;

(b) In the alternative, ordering Respondent to immediately approve the tax collections

in Delaware County; and

(c) Ordering Respondent to take all necessary and appropriate actions to secure a

mid-year tax bill correction.

In the event the Court requires further evidence to determine the issue presented, Relator

requests that the Court issue an alternative writ for the same reasons set forth above.

Relator also requests that the Court award Relator its reasonable expenses, including

attorney fees and costs incurred herein, and such other relief as this Court deems appropriate.

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Respectfully submitted,

/s/ Maria J. Armstrong__________ Counsel of Record Maria J. Armstrong (0038973) Counsel of RecordAnne Marie Sferra (0030855) Nicole M. Donovsky (0072262) BRICKER & ECKLER LLP 100 South Third Street Columbus, Ohio 43215-4291 Telephone: (614) 227-2300 Facsimile: (614) 227-2390 E-mail: marmstrong@bricker.com E-mail: asferra@bricker.com E-mail: ndonovsky@bricker.com

Attorneys for Relator Delaware Joint Vocational School District Board of Education