2021 Ohio 998
Ohio Ct. App.2021Background:
- Relator Christopher Hicks sued the Clermont County Board of Commissioners (BCC) under Ohio's Open Meetings Act (OMA), alleging inadequate minutes, a private quorum discussion, and improper executive sessions on nine dates in 2017.
- Public minutes showed motions authorizing executive sessions under R.C. 121.22(G)(1) (personnel) and on two dates also under (G)(3) (pending/imminent litigation); the motions often listed multiple (G)(1) purposes together.
- Discovery (depositions and records) showed the three commissioners and staff generally could not recall who or what was discussed in the nine executive sessions; only March 1, 2017 identified an employee (D.R.) but not the specific topic(s).
- The trial court granted summary judgment for Hicks as to the nine executive sessions (finding BCC failed to meet its Hardin burden of production regarding what occurred in executive session) but denied relief on minutes and private-quorum claims; it later awarded Hicks attorney fees ($79,676.77 after small reductions).
- BCC appealed two issues: (1) the burden placed on it to prove the executive-session discussions were permissible, and (2) the attorney-fee award and its calculation (including block billing and whether fees should be reduced to zero under R.C. 121.22(I)(2)).
Issues:
| Issue | Plaintiff's Argument (Hicks) | Defendant's Argument (BCC) | Held |
|---|---|---|---|
| Whether BCC met its burden of production to show the executive sessions fell within R.C. 121.22(G) | Hicks argued BCC failed to produce evidence of the content of executive sessions and so could not show compliance with R.C. 121.22(G) | BCC argued that recording a proper motion invoking R.C. 121.22(G)(1) in the public minutes satisfied its burden of production; relator bore the burden to prove wrongdoing | Court held Hardin’s burden-shifting requires the public body to produce evidence that discussions in executive session were consistent with the stated statutory purposes; BCC failed to produce such evidence for the nine sessions, so summary judgment for Hicks affirmed |
| Whether the attorney-fee award was proper and reasonably calculated | Hicks sought reasonable fees for prevailing on the executive-session claim; fee entries were largely tied to successful claim | BCC argued fee reductions were required for block-billed entries, for time attributable to unsuccessful claims, and that fees should be eliminated because a well-informed public body reasonably could believe its conduct complied with OMA | Court affirmed the fee award (with small reductions for redacted/block-billed entries and some time tied to unsuccessful claims); refused to reduce fees to zero because BCC’s practice of listing multiple (G)(1) bases was noncompliant and not a reasonable good-faith belief of compliance |
Key Cases Cited
- State ex rel. Long v. Council of the Village of Cardington, 92 Ohio St.3d 54 (2001) (public body must specify which listed matters it will discuss in executive session)
- In re Removal of Kuehnle, 161 Ohio App.3d 399 (2005) (exceptions to open meetings strictly construed; public body must specify purposes)
- State ex rel. Harris v. Rubino, 156 Ohio St.3d 296 (2018) (criticizing block-billing and requiring detailed fee entries for Ohio Supreme Court filings)
- Thomas v. Board of Trustees of Liberty Twp., 5 Ohio App.2d 265 (1966) (definition and nature of executive sessions)
- State ex rel. Sigall v. Aetna Cleaning Contractors of Cleveland, 45 Ohio St.2d 308 (1976) (relator bears ultimate burden to obtain injunctive relief under OMA)
- Tridico v. District of Columbia, 235 F. Supp. 3d 100 (D.D.C. 2017) (discussing problems created by block-billing in fee applications)