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Magistrate: County makes the rules on MSD, not the city of Cincinnati

A federal magistrate ruled this morning that Cincinnati's responsible bidder ordinance is invalid and that Hamilton County makes the rules for the Metropolitan Sewer District (MSD).

The county owns the sewer system, but the city operates it.

The city and the county have been fighting for more than two years over the responsible bidder ordinance, which would force MSD contractors to have apprentice programs and pay into a pre-apprenticeship fund. Unions favor the ordinance, because many of them have apprentice programs.

The Republican majority on the Hamilton County Commission has opposed responsible bidder, saying it puts unfair burdens on contractors. And, they argued that it is illegal.

No compromise could be worked out, so the county took the matter to U.S. District Court here.

Magistrate Karen Litkovitz said in her 29-page ruling that the city can't force its rules on the county because, as the owner of MSD, the county makes the final decisions. That, Litkovitz said, goes back to the 1968 agreement that created the MSD arrangement between the county and the city.

"The city is therefore bound by the county's rules,'' Litkovitz wrote.

County commission president Chris Monzel said he was pleased with the decision.

"It speaks loudly and crystallizes the relationship between the city and county,'' Monzel ssaid. "Now, if we come in with cost-saving measures, the city has to do it."

Chris Seelbach, the Democratic council member who was the principal force behind the responsible bidder ordinance, could not be reached for comment.

MSD spokesman Rocky Merz put out a statement after the ruling came out saying the ruling "provides clarity on the procurement policy that will be implemented. However, MSD has used the city's procurement policy for nearly 50 years."

MSD, the statement said, "is evaluating the county procurement policy, state law and developing a process for moving projects forward in compliance with the court ruling."

The city could appeal the decision to the Sixth Circuit Court of Appeals. City Solicitor Terrance Nestor said city officials are still looking at the 29-page decision and that no decision has been made on whether there will be an appeal.

"We all appreciate the work the magistrate has put into this,'' Nestor said. "It will be up to the policy makers of the city if they want to pursue this further. MSD is the entity that transcends the boundaries of the city and the county. It's a situation where you want to have a positive and not a negative situation."

City council member Christopher Smitherman, an opponent of responsible bidder, praised the magistrate's decision.

"MSD should immediately begin the process to start work on the $3.5 billion of contract,'' Smitherman said in a written statement.

There are $3.5 billion in MSD projects outstanding.