Cleveland City Council President Blaine Griffin is abandoning legislation that would have opened the door to tapping public dollars in the fight against Issue 38, the participatory budgeting charter amendment.
Griffin sponsored the legislation, which would have explicitly allowed the council president to spend city money to support or oppose tax levies and other ballot issues.
But news of the measure prompted a flurry of opposition, and the People’s Budget campaign called the measure a “broad overreach.” By Monday afternoon, Griffin had pulled it, laying the blame for the legislation on the city law department.
Griffin told reporters Monday afternoon that he introduced the measure after back-and-forth with the law department about the legality of council members weighing in on ballot issues.
The council president said he wanted to be sure council had the legal right to oppose Issue 38 in city newsletters, in mailers and on City Council letterhead. When asked, he said he had not been planning to use city money for more significant expenses like TV and radio ads.
“I just wanted to make sure that we were compliant and that we did everything above board,” Griffin said. “This does not mean and this has never meant that we are trying to run a campaign out of City Hall.”
Even without the legislation, Griffin said he believes council still has legal grounds to oppose Issue 38 in city communications. The council president said he pulled the legislation because he “didn’t need it.” He said hadn’t anticipated the political blowback.
“It created more red flags and more sound effects to the public, and I didn’t want anything to confuse or cause any ambiguity to the public [about] our intentions,” he said.
Council is gearing up for a heated political fight against the amendment, listed on the ballot as Issue 38, which would put 2% of city spending to a system of neighborhood votes.
Griffin has already argued against the amendment in the summer issue of his Ward 6 newsletter, which council pays for with public dollars. But much of the campaign will likely be run out of the Council Leadership Fund, a political action committee that the council president controls. The fund has paid for No on Issue 38 literature seen on social media.
Emails shared with Signal Cleveland indicate that City Council consulted with the law department on the measure. Griffin said the law department even recommended the now-pulled legislation.
Mayor Justin Bibb’s press secretary, Marie Zickefoose, offered a conflicting account. She told Signal Cleveland that the department offered advice, but did not “recommend or otherwise comment on the wisdom” of the measure.
She said the mayor opposed the idea, even if there was legal precedent for spending taxpayer money in a ballot issue campaign.
“As a philosophy, Mayor Bibb and the Bibb administration oppose using taxpayer dollars on campaigning of any kind,” she wrote in a text message. “Mayor Bibb was unaware of council’s proposal to spend public funds on campaigning against Issue 38 (the People’s Budget charter amendment) until earlier today.
The statement continued: “When asked to review this legislation, the city law department clarified that, with explicit authority, the city may expend funds for or against a city ballot issue affecting city governance functions. While there is existing Ohio case law and Attorney General opinions that allow for this, Mayor Bibb does not support this legislation in theory or in practice.”
Bibb has supported past participatory budgeting ideas, but is against Issue 38 – putting him at odds with some of his political supporters. So far, the mayor has not taken an active role in the campaign against the issue.
Before the legislation was pulled, Molly Martin, an organizer of the People’s Budget Cleveland campaign, decried it in an emailed statement.
“People’s Budget Cleveland is dismayed by City Council’s latest efforts to subvert the democratic process in Cleveland,” she wrote. “This broad overreach sets a dangerous precedent, and is another example of this status quo institution choosing to expand their power rather than respect the will of the people. Our city deserves better.”
A legal opening for Cleveland to join ballot campaigns
There are gray areas in the law on how government bodies can talk about ballot issues.
Ohio law prevents political jurisdictions like school districts from spending taxpayer money to support or oppose levy campaigns. While schools can provide “factual information” about levies in their newsletters, they can’t cross the line into advocacy, according to one guidance for districts from the law firm Bricker and Eckler.
But that law exempts chartered cities like Cleveland from those rules, and it refers to levies and bond issues, not charter amendments.
Beyond that one law, legal opinions issued by the Ohio Attorney General’s Office have advised against using public dollars on ballot issues unless a jurisdiction had clear authority to do so.
“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,” a 2008 opinion reads.
Legal precedent was arguably on council’s side. In a 2005 decision by the 6th U.S. Circuit Court of Appeals, the court ruled that the city council in Union, Ohio, had the right to use city resources to oppose a voter referendum.
Political action committees raise money for and against Issue 38
Both sides of Issue 38 plan to spend political action committee dollars on the election, but it’s too early to know how much.
The Council Leadership Fund reported $136,380 on hand at the start of June. The pro-Issue 38 PAC, the People’s Budget Cleveland Committee, hasn’t had to disclose its fundraising and spending yet. Both committees pull back the curtain on their finances in late October, the next filing deadline with the Cuyahoga County Board of Elections.
In a July disclosure to City Council, the People’s Budget campaign reported raising and spending $20,300 to put the issue on the ballot. The campaign raised that money entirely from three nonprofits: the Northeast Ohio Coalition for the Homeless, Cleveland Votes and Cleveland Owns.
Griffin questioned the propriety of a nonprofit like a homeless-service organization using its money on a ballot issue campaign, rather than focusing on its core mission.
Although nonprofits are typically prohibited from engaging in partisan politics, state law does permit them to spend money on non-candidate ballot issues.
Updated at 6:53 on Sept. 18, 2023.