COURT OF COMMON PLEAS

HAMILTON COUNTY, OHIO

STATE OF OHIO ex rel.

AMALGAMATED TRANSIT UNION,
LOCAL 627
1385 Tennessee Avenue
Cincinnati, Ohio 45229
and
STATE OF OHIO ex rel.
CINCINNATI AFL-CIO LABOR
COUNCIL
1385 Tennessee Avenue
Cincinnati, Ohio 45229
and
STATE OF OHIO ex rel.
DONNA MCKINNEY
5968 Belmont Avenue
Cincinnati, Ohio 45224
Relators,
v.
CITY OF CINCINNATI
City Hall
801 Plum Street, Room 214
Cincinnati, Ohio 45202
and
SOUTHWEST OHIO REGIONAL
TRANSIT AUTHORITY
602 Main Street, Suite 1100
Cincinnati, Ohio 45202
Respondents.

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Case No. _______________________

Judge _________________________

MOTION FOR ISSUANCE OF

TEMPORARY RESTRAINING
ORDER AND PRELIMINARY
INJUNCTION

Pursuant to Ohio Civ. R. 65, Relators, Amalgamated Transit Union, Local 627 (Local
627), Cincinnati AFL-CIO Labor Council (the Labor Council), and Individual Relator Donna
McKinney (McKinney) move for a Temporary Restraining Order and Preliminary Injunction
against Respondent Southwest Ohio Regional Transit Authority (SORTA) to preclude SORTA
from awarding the third-party contract to operate the Cincinnati Streetcar during the July 6, 2015
scheduled meeting without Cincinnati City Councils consent to the contract.
In addition to an injunction against SORTA, Relators concurrently seek through this
litigation an order directing the City of Cincinnati (the City) to take all steps legally required to
give its consent to, and selects, the method of service delivery of the operation of the Cincinnati
Streetcar.
The grounds for this Motion are set forth in the Complaint filed contemporaneously with
this Motion and the Memorandum in Support of this Motion, set forth below.
Respectfully Submitted,
s/ David M. Cook
David M. Cook (#0023469)
Claire W. Bushorn (#0087167)
Clement L. Tsao (#0090105)
COOK & LOGOTHETIS, LLC
22 West 9th Street
Cincinnati, Ohio 45202
(513) 721-0444 phone
(513) 721-1178 fax
dcook@econjustice.com
cbushorn@econjustice.com
ctsao@econjustice.com
Counsel for Relators

MEMORANDUM IN SUPPORT OF
MOTION FOR ISSUANCE OF TEMPORARY RESTRAINING ORDER
AND PRELIMINARY INJUNCTION

I.

BACKGROUND

Relators Amalgamated Transit Union, Local 627 (Local 627), Cincinnati AFL-CIO
Labor Council (the Labor Council), and Individual Relator Donna McKinney (McKinney)
seek an injunction preventing the Southwest Ohio Regional Transit Authority (SORTA) to
preclude SORTA from awarding the third-party contract to operate the Cincinnati Streetcar during
the July 6, 2015 scheduled meeting without Cincinnati City Councils consent to the contract, as
required by Ordinance and approved in the Citys Motion adopted December 10, 2014 (Item
#201401401).
The Citys modern Streetcar project in downtown Cincinnati is projected to begin revenue
service in September, 2016. (Verified Complaint, 9). SORTA has actively participated in
developing and planning the Streetcar project, and has been charged with managing the
procurement process in accordance with Federal and SORTA requirements and to award the
Streetcar operating contract. (Id., at 10). As part of the procurement process, all bidders are
required to submit two proposals: one proposal in which a private sector contractor hires private
employees to operate the Streetcar (the turnkey option), and another proposal in which a
contractor hires and manages SORTA employees who operate the Streetcar system (the
management option). (Id., at 11).
Throughout 2014, the City and SORTA engaged in negotiations over the terms and
conditions of an agreement concerning operating and maintenance of the Streetcar, known as the
Operations and Maintenance Intergovernmental Agreement (Operations and Maintenance

Agreement). (Id., at 13). On November 19, 2014, City Council passed Ordinance No. 328, Item
#201401400 (Ordinance No. 328) which approves and authorizes the City Manager to execute
the Operations and Maintenance Agreement between the City and SORTA. (Id., at 15; Ordinance
No. 328, Exhibit B to Verified Complaint). Then, on December 10, 2014, City Council passed a
motion, Item #201401401 (the Motion) which direct[ed] the administration to require through
its operations and maintenance agreement with SORTA, as a condition of future City funding, that
SORTA obtain the consent of Council to any third party operating contract for the operation of the
Cincinnati streetcar with either a turnkey operation or management agreement with SORTA
employees. (Id., at 16; Motion, Exhibit C to Verified Complaint).
On June 17, 2015, City Councils Major Transportation & Regional Cooperation
Committee voted to recommend that City Council pass an ordinance what would select a
management agreement method of service delivery. (Id., at 17). Yet on June 24, 2015, City
Council failed to adopt the proposed ordinance by a vote of 4 to 5. (Id., at 18). City Council has
failed to select a method of service delivery for the Streetcar and has not given its consent to any
third party operating contract for the operation of the Streetcar. (Id., at 19).
City Council has only one scheduled meeting in the month of July: July 1, 2015 at 2:00
pm. Upon knowledge and belief, City Council does not have any agenda item to discuss, vote on,
or make any decision related to any operating contract or the selection of the method of service
delivery for the Streetcar system. (Id., at 21). City Council does not have another meeting
scheduled until August 5, 2015. (Id., at 22). Furthermore, SORTA acknowledges that City
Council would have had to make a decision as to whether to select the turnkey or management
method of Streetcar service by the end of June 2015 in order for SORTA to award the third-party

operator contract in July 2015. (Id., at 28; Paul Grether Statement, attached as Exhibit F to
Verified Complaint).
Despite the requirement that SORTA obtain City Councils approval of any third party
operating agreement for operation of the streetcar, SORTA has scheduled a special meeting to take
place on Monday July 6, 2015 during which the SORTA Board of Trustees will both select the
method of operating service and award the contract to a third-party operator. (Id., at 20). This is
in direct conflict with Ordinance No. 328, and the December 10, 2014 Motion requiring consent
of Council to any such agreement.
Should SORTA select the method of operating service either the turnkey or management
option- and award the contract to a third-party operator during the July 6, 2015 meeting as is
planned, without City Councils consent, the contract SORTA awards will have no legal effect.
While City Council has only one additional meeting scheduled after today August 5, 2015
it is not known whether Council could consent to any operating agreement after SORTA has
already awarded the contract. The resulting time delay and uncertainty will not give the selected
contractor the necessary time to prepare for vehicle delivery beginning in September, and will
cause precisely the delay and additional costs SORTA seeks to avoid. (Id., at 33).
Through SORTAs planned action, and City Councils inexcusable neglect and failure to
act, Relators seek an injunction preventing SORTA from awarding a contract to operate the
Cincinnati Streetcar on July 6, 2015 without the Citys consent, while concurrently seeking a Writ
of Mandamus directing the City Council to consent to one of the options before it in relation to the
Operating and Maintenance Agreement.

II.

ARGUMENT

The purpose of a restraining order or preliminary injunction is to preserve the status quo.
Proctor & Gamble Co. v. Stoneham, 140 Ohio App.3d 260, 267, 747 N.E.268 (1st Dist. 2000). In
determining whether to grant a temporary restraining order or preliminary injunction, a court must
look at the character of the case, the particular facts involved, and factors relating to public policy
and convenience. Great Plains Exploration, LLC. v. City of Willoughby, 2006-Ohio-7009 11
(11th Dist. 2006). Thus, courts in general consider: 1) whether there is a substantial likelihood that
the plaintiff will prevail on the merits; 2) whether the plaintiff will suffer irreparable injury if the
injunction is not granted; 3) whether third parties will be unjustifiably harmed if the injunction is
not granted, and 4) whether the public interest will be served by the injunction. Mt. Eaton
Community Church, Inc. v. Ladrach, 2009-Ohio-77 15 (9th Dist. 2009). No one factor in the
analysis is dispositive, but the four factors must be balanced as is characteristic of the law of
equity. Aultcare Corp. v. Roach, 2009-Ohio-6186 56 (5th Dist. 2009).
A. THERE IS A SUBSTANTIAL LIKELIHOOD THAT ATU LOCAL 627, THE
LABOR COUNCIL, AND DONNA MCKINNEY WILL PREVAIL ON THE
MERITS.
SORTA does not have the authority to approve the method of operating service or to award
a contract to a third-party operator without the City Councils consent. Absent an injunction,
SORTA will act without any such authorization and award an impermissible contract to a thirdparty operator during its scheduled meeting on July 6, 2015.
Ohio law provides that [a]ll contracts requiring the authority of the legislative authority
for their execution shall be entered into and conducted to performance by the board or officers
having charge of the matters to which they relate. (Ohio Rev. Code 731.05). In addition,
[a]ction by the legislative authority, not required by law to be by ordinance or resolution, may be

taken by motion approved by at least a majority vote of the members present at the meeting when
the action is taken. (Id., at 731.17(B)).
Here, by passing the December 10, 2014 Motion, City Council voluntarily assumed the
legal requirement that City Council approve any third-party operating contract for operation of the
Streetcar. (Motion, Exhibit C to Verified Complaint.) SORTA recognizes City Councils legal
obligation. (Operations & Maintenance Agreement, Exhibit E to Verified Complaint). Only if
City Council gives consent to a third-party operating contract will a contract entered into by
SORTA have any legal effect. See State ex rel. Universal Destructor Co. v. Wiegrand, 26 Ohio
App. 154, 160 (Ohio Ct. App., Cuyahoga County 1927)(holding that the terms of a contract are
only conditional until city council approves the terms of the contract).
Because City Council has not acted to approve a method of service- either the turnkey or
management option- SORTA will be unable to enter into a valid contract with a third-party
operator on July 6, 2015 at its scheduled meeting as it intends to. The City must first fulfill its
voluntarily assumed legal obligation and approve the method of service. On this basis, Relators
have a substantial likelihood of prevailing on the merits.
B. RELATORS WILL SUFFER IRREPARABLE INJURY IF THE INJUNCTION IS
NOT GRANTED.
Without an injunction, Relators will suffer irreparable injury. As the bargaining
representative of non-supervisory SORTA employees, the delay in the Streetcar project which will
undeniably occur without an injunction will cause Local 627 to lose any opportunity for its
members to operate the Streetcar as public employees. (Verified Complaint, at 35). Relator Labor
Council similarly stands to face irreparable injury as the representative of labor union constituents
in the Greater Cincinnati area. Individual Relator, Ms. McKinney is a Cincinnati resident and

future patron of the Streetcar. She consequently stands to suffer irreparable injury in the form of
unnecessary delay to access local public transportation service in downtown Cincinnati. (Id., at
34).
C. THE PUBLIC INTEREST WILL BE SERVED BY THE INJUNCTION; AND
THIRD PARTIES WILL NOT BE UNJUSTIFIABLY HARMED IF THE
INJUNCTIVE RELIEF IS GRANTED.
As this matter is brought to promote the rights of all Local 627 and Labor Council
Members, in addition to Individual Relator Ms. McKinneys rights and the rights of all members
of the public who hold an interest in obtaining and exercising access to public transportation,
preventing SORTA from entering into a contract with a third-party operator without City Councils
consent serves the public interest. An injunction will ensure that an unenforceable and invalid
contract is not entered into between SORTA and a third-party contractor. Thus, the injunction will
prevent avoidable delay and the waste of public resources. Local 627 and Labor Council
constituents members may have an opportunity to gain employment with the Citys streetcar
project should the Court enter the injunction. Similarly, preventing SORTA from awarding a
contract to a third-party operator without the Citys consent, as required under the December 10,
2014 Motion, will not unjustifiably harm the Respondents or any other third parties. Should
SORTA be permitted to select a third-party operator in violation of the Citys Motion and
Ordinance, the City will face a substantial loss of public funds earned through projected revenue
if the delay in Streetcar operation were to occur.
III.

CONCLUSION

Relators can establish every element required for injunctive relief- i.e., a likelihood of
success on the merits, irreparable harm, irreparable injury if the injunction is not granted, third
parties will be unjustifiably harmed if the injunction is not granted, and the public interest will be

served through the injunction. Accordingly, Relators are entitled to an injunction ordering
Respondent SORTA to not award a third party operating contract during its July 6, 2015 scheduled
meeting, or at any other time, without City Councils consent.
Respectfully Submitted,
s/ David M. Cook
David M. Cook (#0023469)
Claire W. Bushorn (#0087167)
Clement L. Tsao (#0090105)
COOK & LOGOTHETIS, LLC
22 West 9th Street
Cincinnati, Ohio 45202
(513) 721-0444 phone
(513) 721-1178 fax
dcook@econjustice.com
cbushorn@econjustice.com
ctsao@econjustice.com
Counsel for Relators

CERTIFICATE OF SERVICE
I certify that on July 1, 2015, a copy of the foregoing was served via USPS Certified Mail
and hand delivery upon the following:
City of Cincinnati
City Hall
801 Plum Street, Room 214
Cincinnati, Ohio 45202
Southwest Ohio Regional Transit Authority
602 Main Street, Suite 1100
Cincinnati, Ohio 45202
s/ David M. Cook
David M. Cook (#0023469)

10

COURT OF COMMON PLEAS

HAMILTON COUNTY, OHIO

STATE OF OHIO ex rel.

AMALGAMATED TRANSIT UNION,
LOCAL 627
1385 Tennessee Avenue
Cincinnati, Ohio 45229
and
STATE OF OHIO ex rel.
CINCINNATI AFL-CIO LABOR
COUNCIL
1385 Tennessee Avenue
Cincinnati, Ohio 45229
and
STATE OF OHIO ex rel.
DONNA MCKINNEY
5968 Belmont Avenue
Cincinnati, Ohio 45224
Relators,
v.
CITY OF CINCINNATI
City Hall
801 Plum Street, Room 214
Cincinnati, Ohio 45202
and
SOUTHWEST OHIO REGIONAL
TRANSIT AUTHORITY
602 Main Street, Suite 1100
Cincinnati, Ohio 45202
Respondents.

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Case No. _______________________

Judge John A. West

[PROPOSED TEMPORARY RESTRAINING ORDER]

This matter is before the Court on Relators Amalgamated Transit Union, Local 627 (Local
627), Cincinnati AFL-CIO Labor Council (the Labor Council), and individual relator Willie J.
Bushs Motion For A Temporary Restraining Order and Preliminary Injunction against Southwest
Ohio Regional Transit Authority (SORTA) to preclude SORTA from awarding the third-party
contract to operate the Cincinnati Streetcar during the July 6, 2015 scheduled meeting without City
Councils consent to the contract. Based upon the Verified Complaint, including the exhibits
attached to the Verified Complaint, and Relators Motion for a Temporary Restraining Order and
Preliminary Injunction, a sufficient showing has been demonstrated to warrant the issuance of a
temporary restraining order and the motion is granted. Specifically, the Court orders that SORTA
is prohibited from entering into any contract with a third-party operator during its scheduled July
6, 2015 meeting, and without consent to any such contract by City Council.
Therefore, it is ORDERED and DECREED that:
Defendant Southwest Ohio Regional Transit Authority (SORTA)
is precluded from awarding the third-party contract to operate the
Cincinnati Streetcar during the July 6, 2015 scheduled meeting
without consent from Cincinnati City Council to any such contract.

In light of the fact that the nature of this dispute is on behalf of the public interest, the Court
hereby waives any requirement for the posting of security.
SO ORDERED.

________________________
John A. West, Judge
Hamilton County Common Pleas Court