2019 Ohio 5311
Ohio Ct. App.2019Background:
- Relator Brian Ames filed a pro se verified complaint seeking mandamus, injunction, and declaratory relief, alleging 12 violations of R.C. 121.22 (Ohio Open Meetings Act) by the Brimfield Township Board of Trustees for holding executive sessions to discuss pending litigation without an attorney present.
- The Board answered and both parties moved for summary judgment. The Board produced Trustee Mike Kostensky’s affidavit stating the sessions were informational: employees relayed attorney advice or the Board consulted the attorney by phone, and no deliberations occurred outside public meetings.
- Meeting minutes, however, sometimes record motions made "as a result of the executive session" and state executive sessions were to discuss "pending litigation," creating a factual conflict with the affidavit.
- The trial court granted summary judgment to the Board, concluding the gatherings were "conferences," not "meetings," that did not trigger the OMA, and that common-law attorney-client privilege could justify nonstatutory private meetings.
- The Eleventh District reviewed de novo, held the trial court erred in treating those gatherings as outside the OMA and erred to apply a separate common-law privilege beyond R.C. 121.22(G), reversed the grant of summary judgment to the Board, affirmed denial of Ames’s summary judgment, and remanded for further proceedings.
Issues:
| Issue | Plaintiff's Argument (Ames) | Defendant's Argument (Board) | Held |
|---|---|---|---|
| Whether the non-public gatherings were "meetings" subject to the OMA | The executive sessions were meetings where a majority deliberated about public business (pending litigation) and took actions; minutes show motions post-session. | The gatherings were informational "conferences," not deliberative meetings; counsel’s advice was relayed by employees or by phone; no deliberations occurred. | The court held the trial court erred: minutes and affidavit conflict and evidence shows some closed sessions were meetings subject to OMA; factual dispute precludes summary judgment for Board. |
| Whether attorney-client/common-law privilege authorizes private sessions beyond statutory exceptions | Ames: OMA exceptions are exclusive; communications outside R.C. 121.22(G) aren’t automatically privileged to permit secrecy. | Board: common-law privilege (attorney-client) can justify private communications even if not listed in R.C. 121.22(G). | The court held statutory exceptions in R.C. 121.22(G) govern; common-law privilege cannot supplant or expand those statutory limits. |
| Proper standard of appellate review for summary judgment in mandamus | De novo review of summary judgment decisions. | Board urged abuse-of-discretion for mandamus generally. | Court applied de novo review for summary judgment in a mandamus action (consistent with Ohio Sup. Ct. precedent). |
| Whether either party was entitled to summary judgment | Ames: Minutes and discovery prove OMA violations requiring judgment. | Board: affidavit shows no deliberation; counsel input (including by phone) fits R.C. 121.22(G)(3). | Court affirmed denial of Ames’s SJ (minutes alone insufficient; factual disputes remain) and reversed grant of Board’s SJ (affidavit contradictions with minutes create genuine issues). |
Key Cases Cited
- State ex rel. Manley v. Walsh, 142 Ohio St.3d 384 (2014) (summary-judgment in mandamus reviewed de novo)
- State ex rel. Anderson v. Vermilion, 134 Ohio St.3d 120 (2012) (de novo review of summary judgment in mandamus)
- Dresher v. Burt, 75 Ohio St.3d 280 (1996) (plaintiff seeking summary judgment bears initial burden to show no genuine issue)
- Temple v. Wean United, Inc., 50 Ohio St.2d 317 (1977) (summary judgment standard)
- Murphy v. Reynoldsburg, 65 Ohio St.3d 356 (1992) (purpose of summary judgment and avoidance of trial when nothing remains to try)
- Holeski v. Lawrence, 85 Ohio App.3d 824 (1993) (distinguishing non-deliberative private discussions from OMA violations)
- Cincinnati Bd. of Edn. v. Cincinnati Enquirer, 192 Ohio App.3d 566 (2011) (discussion of what constitutes deliberation under OMA)
- Springfield Local Sch. Dist. Bd. of Edn. v. Ohio Assn. of Pub. School Emps., Local 530, 106 Ohio App.3d 855 (1995) (information-gathering vs. deliberation under OMA)