Cincinnati, Hamilton County headed to court over sewer dispute

At stake are billions of dollars in MSD contracts

A long-simmering dispute between Cincinnati and Hamilton County involving billions of dollars in sewer contracts is headed to court.

Hamilton County commissioners voted 2-1 Wednesday to hire an outside law firm to prepare a lawsuit against the city of Cincinnati.

Typically, the Hamilton County Prosecutor’s Office represents commissioners in legal matters. But due to the Prosecutor Office’s heavy workload and the type of technical expertise needed in the sewer case, Prosecutor Joe Deters recommended an outside firm be hired.

City and county officials have been sparring since May 2013 about Cincinnati’s so-called “responsible bidder” law.

The law, approved by the previous City Council, imposes restrictions on companies submitting bids to do work for the Metropolitan Sewer District (MSD).

Hamilton County owns MSD, but Cincinnati operates the system under a contract.

County officials have said city policies shouldn’t affect MSD. As a county-owned entity, only state laws should apply, they added.

Some county sewer projects have been stopped since September, as officials tried to reach a compromise.

About $160 million worth of contracts and 700 jobs would be affected in the short-term.

County commissioners Chris Monzel and Greg Hartmann, both Republicans, voted in favor of hiring a law firm. Todd Portune, the commission’s sole Democrat, was opposed.

“I don’t see how we’re going to avoid going to court, at this point,” Monzel said.

“This is launching the process,” he added. “Joe (Deters) will go find whatever law firm he feels comfortable with and file the paperwork.”

Although Cincinnati Mayor John Cranley opposes the responsible bidder law, City Council’s Democratic majority has strongly supported it.

Supporters have said the law’s requirement that contractors hire apprentices on all work valued at $400,000 or more will help low-income residents get much-needed job training.

Opponents have countered, however, the requirements are written in a manner that gives an unfair advantage to labor unions.

Councilman Chris Seelbach, a law supporter, scoffed at Hamilton County’s recently enacted goals for using apprentices on sewer projects. The goals aren’t binding and can be easily ignored by contractors, he said.

“These aspirational goals are a bunch of crap, if you ask me,” Seelbach said.

Councilman Wendell Young, also a supporter, said a legal fight is worth the time and expense.

“The same old way just won't work,” Young said. “We are going to court for the noblest of reasons.”

Monzel agreed that clarity is needed.

“This will let us finally know who sets the policy for the Metropolitan Sewer District,” Monzel said.

Under the city’s responsible bidder law, companies bidding on work valued at $400,000 or more must employ apprentices at a ratio of at least 20 percent.

Also, the law requires companies to pay 10 cents per hour for each worker into a fund for a pre-apprenticeship program.

Further, it requires companies to have graduated at least one apprentice per year for the past five years.

County officials contend Ohio law prohibits such provisions.

“Unfortunately, we as a county can’t do something that’s illegal,” Monzel said. “What the city wants is illegal under state law.”

Under a consent decree with the U.S. Environmental Protection Agency, MSD will issue contracts for about $3.2 billion in work to improve and upgrade the aging sewer system over the next 20 years.

MSD ultimately must treat or prevent 85 percent of the sewage overflows into local rivers and streams.

Build 513, a union-backed group lobbying for the county to comply with the law, said litigation would be wasteful.

"Instead of paying for high-priced lawyers, they should release the funds and let the work begin without further delay," said Rob Richardson Jr., Build 513's president.

"If the county refuses to hold contractors accountable for training a skilled, safe workforce, new jobs for the very taxpayers who help fund these projects could go down the drain," Richardson added.

Councilman Charlie Winburn, a Republican who opposes the city’s law, tried a legal maneuver Wednesday to force the city into a dispute mediation process in federal court.

Stating that City Solicitor Terrance Nestor also represents council members individually, and not just as a group, Winburn instructed him to begin the process by Friday.

“Instead of going right into litigation, we should initiate this first,” Winburn said. “We’ll end up going to court unless we activate this option.”

Nestor said Winburn’s reasoning is incorrect.

“The city solicitor, by charter and state law, represents the municipal corporation,” Nestor said. “Consistent with the Ohio Rules of Professional Conduct, the Solicitor’s Office represents the city as an organization.

“If Mr. Winburn were the subject of a lawsuit as a defendant in his official capacity as a City Council member, then the Solicitor’s Office would represent him,” Nestor added. “A single council member does not have the authority to direct the filing of a motion on behalf of the

municipal corporation.

“Rather, as with any citizen, Mr. Winburn can choose a personal lawyer and file a lawsuit (or motion) to assert a personal interest.”

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