STATE OF OHIO ex rel. BRIAN M. AMES, Relator-Appellant, - vs - PORTAGE COUNTY BOARD OF COMMISSIONERS, Respondent-Appellee.
CASE NO. 2019-P-0016
IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY, OHIO
September 3, 2019
[Cite as State ex rel. Ames v. Portage Cty. Bd. of Commrs., 2019-Ohio-3730.]
MARY JANE TRAPP, J.
Civil Appeal from the Portage County Court of Common Pleas, Case No. 2016 CV 00582. Judgment: Affirmed in part, reversed in part, and remanded.
Victor V. Vigluicci, Portage County Prosecutor, and Timothy J. Piero, Assistant Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Respondent-Appellee).
O P I N I O N
MARY JANE TRAPP, J.
{¶1} Appellant, Brian Ames (“Mr. Ames“), appeals the judgment of the Portage County Court of Common Pleas granting summary judgment in favor of appellees, the Portage County Board of Commissioners (the “Board“), and denying him summary judgment in his civil action against the Board alleging multiple violations of Ohio‘s Open
{¶2} After a careful review of the record and pertinent law, we find: (1) we have previously addressed Count LV of Mr. Ames’ complaint in Case No. 2019-P-0015, and therefore his appeal with respect to this claim for relief is dismissed as moot; (2) the trial court incorrectly interpreted
{¶3} More specifically, the trial court erred in holding that the Board necessarily stated an acceptable purpose under
{¶4} We understand that given the litigation history between Mr. Ames and the Board, the Board, in good faith, sought to insulate itself from more litigation by erring on the side of inclusiveness, but for future meetings the Board must be more precise.
{¶5} For example, if the purpose is to discuss a complaint about a public employee, the Board should state that it is going into executive session to consider investigation of charges or complaints against a public employee and to consider
{¶6} Thus, we affirm in part, reverse in part, and remand to the trial court for further proceedings consistent with this opinion.
Substantive History and Procedural Background
{¶7} On June 28, 2016, Mr. Ames, pro se, filed a verified complaint in the Portage County Court of Common Pleas (Case No. 2016 CV 00582) alleging the Board violated the OMA on multiple occasions.1
{¶8} Specifically, Mr. Ames alleged that on 42 separate occasions from January 5, 2016 through June 14, 2016, prior to entering executive sessions to consider personnel matters, the Board read from
{¶9} Mr. Ames sought: (1) a declaratory judgment that the Board violated the OMA, (2) a $500 civil forfeiture for each violation, (3) an order to permanently enjoin the Board from violating the OMA, (4) an order that the Board annotate the meeting minutes to reflect the approved purposes for each executive session, and (5) court costs and reasonable attorney fees.
{¶11} The Board filed an answer generally denying Mr. Ames’ allegations. The Board also filed a motion for protective order and objection to discovery.
{¶12} Mr. Ames filed a motion to disqualify the Board‘s counsel, a motion to strike and brief in opposition to the Board‘s motion/objection, a motion for “discipline” against the Board pursuant to the trial court‘s local rules, and a motion for a preliminary injunction.
{¶13} Without leave of court, Mr. Ames filed an amended complaint alleging 13 additional violations of the OMA, for a total of 55 alleged violations from January 5, 2016 through July 19, 2016 (Counts I through LV), and one alleged threat to violate the statute (Count LVI). Count LV of Mr. Ames’ amended complaint alleges the same violation regarding the Board‘s meeting of July 19, 2016 as Count I of his complaint in Case No. 2017 CV 00415.
{¶14} The Board filed a motion to dismiss, or in the alternative, for summary judgment, along with a memorandum in support. The Board admitted that prior to the executive sessions referenced in Mr. Ames’ amended complaint, it read from
{¶15} Mr. Ames filed a brief in opposition as well as a cross motion for summary judgment. Mr. Ames argued that the Board‘s practice of “merely reiterat[ing] the laundry list of possible matters from
{¶16} Mr. Ames filed an original action in procedendo in the Supreme Court of Ohio, which was docketed as State ex rel. Ames v. Reinbold, Case No. 2017-1483, requesting an order that the trial judge rule on pending motions in the underlying case. The court initially referred the matter to mediation, see 11/07/2017 Case Announcements, 2017-Ohio-8446, and subsequently dismissed the action. See 06/27/2018 Case Announcements, 2018-Ohio-2418.
{¶17} Mr. Ames also filed an affidavit of disqualification with the Chief Justice of the Supreme Court of Ohio alleging that the visiting trial judge was biased in favor of the Board‘s counsel, which the Chief Justice denied in In re Disqualification of Reinbold, 152 Ohio St.3d 1221, 2017-Ohio-9427.
{¶18} Following a hearing regarding, among other things, the availability of videos of Board meetings, the trial court issued a judgment entry indicating that the Board would confirm its contention that it did not retain copies of such videos.
{¶19} Following an additional hearing, the trial court issued a journal entry directing the Board to make available to Mr. Ames a flash drive containing videos of the Board‘s meetings for fiscal year 2016.
{¶20} The trial court issued another order requiring the Board to provide the court with the meeting minutes so it could determine their evidentiary value. Mr. Ames filed an “objection,” alleging the trial court was attempting to independently investigate facts in violation of Jud.Cond.R. 2.9(C). Mr. Ames also filed an “objection” to the trial court‘s
{¶21} The trial court issued an order and journal entry converting the Board‘s motion to dismiss to a motion for summary judgment and permitting the parties to submit evidence consistent with
{¶22} Mr. Ames filed a motion requesting that the trial court issue an order compelling the Board to either complete discovery or stipulate to relevant facts.
{¶23} The Board filed an answer to Mr. Ames’ amended complaint generally denying his allegations. The Board also filed a renewed motion for a protective order and objection to discovery.
{¶24} The trial court issued an order marking the relevant meeting minutes as “the Court‘s Exhibit AA” and admitting them into evidence. The trial court then filed the meeting minutes with the clerk of courts.
{¶25} Without leave of court, Mr. Ames filed a proposed second amended verified complaint. He also filed a motion to strike and an opposition to the Board‘s renewed motion for a protective order and objection to discovery, as well as renewed discovery requests.
{¶26} The Board filed a notice of submission into evidence a flash drive containing video of the Board‘s meetings for fiscal year 2016.
{¶27} Following a hearing on discovery matters, the trial court issued a judgment entry denying Mr. Ames’ motions to compel discovery, to amend his verified complaint, and to strike the Board‘s renewed motion for a protective order. The trial court‘s entry
{¶28} The Board filed a notice of submission of its responses to Mr. Ames’ discovery requests.
{¶29} Mr. Ames filed a motion to disqualify the visiting trial judge, alleging that he “repeatedly demonstrated an inability to uphold and apply the law.”
{¶30} The Board filed a motion for summary judgment and a brief in opposition to Mr. Ames’ previously filed motion for summary judgment. The Board admitted in briefing it held several meetings as indicated in Mr. Ames’ amended complaint and it “read verbatim from
{¶31} Mr. Ames filed original actions for writs of procedendo in this court requesting orders that the trial judge rule on pending motions in the underlying case and another unrelated case, which we ultimately dismissed as moot in State ex rel. Ames v. Reinbold, 11th Dist. Portage Nos. 2019-P-0009 & 2019-P-0010, 2019-Ohio-1169.
{¶32} The trial court subsequently issued a judgment entry granting the Board‘s motion for summary judgment and denying Mr. Ames’ motion for summary judgment. The trial court stated as follows:
{¶33} ”
{¶34} “[Mr. Ames] admits at ¶LVI of his Complaint that [the Board] as a matter of practice read the statutory language of
{¶35} The trial court concluded the Board committed no violations of the OMA and was entitled to judgment as a matter of law.
{¶36} Mr. Ames now appeals and presents the following assignments of error for our review:
{¶37} “[1.] The Trial Court erred in granting summary judgment in favor of the Board and in denying summary judgment to Ames on cases 2016CV00582 and 2017CV00415 by disregarding the opinion of the Supreme Court of Ohio and substituting its own reading of
{¶38} “[2.] The Trial Court erred in granting the Board‘s protective order and in denying discovery to Ames on case 2016CV00582.”
Grant of Summary Judgment to the Board
{¶39} In his first assignment of error, Mr. Ames argues the trial court erred by granting summary judgment to the Board.
Standard of Review
{¶40} We review de novo a trial court‘s order granting summary judgment. (Citations omitted.) Sabo v. Zimmerman, 11th Dist. Ashtabula No. 2012-A-0005, 2012-Ohio-4763, ¶9. “A reviewing court will apply the same standard a trial court is required to
{¶41} “Since summary judgment denies the party his or her ‘day in court’ it is not to be viewed lightly as docket control or as a ‘little trial‘. The jurisprudence of summary judgment standards has placed burdens on both the moving and the nonmoving party. In Dresher v. Burt [75 Ohio St.3d 280 (1996)], the Supreme Court of Ohio held that the moving party seeking summary judgment bears the initial burden of informing the trial court of the basis for the motion and identifying those portions of the record before the trial court that demonstrate the absence of a genuine issue of fact on a material element of the nonmoving party‘s claim. The evidence must be in the record or the motion cannot succeed. The moving party cannot discharge its initial burden under
{¶42} The “portions of the record * * * are those evidentiary materials listed in
{¶43} The trial court may consider a type of document not expressly mentioned in
{¶44} “If the moving party fails to satisfy its initial burden, the motion for summary judgment must be denied. If the moving party has satisfied its initial burden, the nonmoving party has a reciprocal burden outlined in the last sentence of
The OMA
{¶45} The OMA is set forth in
{¶46}
{¶48} “(G) * * * [T]he members of a public body may hold an executive session only after a majority of a quorum of the public body determines, by a roll call vote, to hold an executive session and only at a regular or special meeting for the sole purpose of the consideration of any of the following matters:
{¶49} “(1) To consider the appointment, employment, dismissal, discipline, promotion, demotion, or compensation of a public employee or official, or the investigation of charges or complaints against a public employee, official, licensee, or regulated individual, unless the public employee, official, licensee, or regulated individual requests a public hearing. Except as otherwise provided by law, no public body shall hold an executive session for the discipline of an elected official for conduct related to the performance of the elected official‘s official duties or for the elected official‘s removal from office. If a public body holds an executive session pursuant to division (G)(1) of this section, the motion and vote to hold that executive session shall state which one or more of the approved purposes listed in division (G)(1) of this section are the purposes for which the executive session is to be held, but need not include the name of any person to be considered at the meeting.” (Emphasis added.)
{¶50} Courts have held that the exceptions in
Count LV
{¶51} As previously indicated, Count I of Mr. Ames’ complaint in Case No. 2017 CV 00415 and Count LV of his complaint in the underlying case allege the same violation regarding the Board‘s meeting of July 19, 2016. Since we have already addressed this claim for relief in our opinion in Case No. 2019-P-0015, Mr. Ames’ appeal with respect to Count LV is dismissed as moot.
Remaining Counts
{¶52} We next address the trial court‘s grant of summary judgment to the Board on the remaining counts of Mr. Ames’ complaint.
{¶53} The Board argues that its practice of reading from
{¶54} The record shows that the trial court filed the relevant meeting minutes with the clerk of courts. Although these minutes were not incorporated by reference in a properly framed affidavit, improper summary judgment evidence may be considered by the trial court if no objection is made. (Citations omitted.) Millstone, supra, at ¶62.
{¶55} Mr. Ames objected to the trial court‘s order that the Board submit the meeting minutes for review on the grounds that the trial court was engaged in the improper investigation of facts. However, Mr. Ames did not object to the trial court‘s subsequent order admitting the meeting minutes into evidence or file a motion to strike
{¶56} The minutes reflect that at each meeting, the Board stated as follows:
{¶57} “In accordance with the [sic]
{¶58} This language mirrors that set forth in the referenced statute. Therefore, our review of the trial court‘s grant of summary judgment to the Board on Mr. Ames’ remaining counts involves the proper interpretation of
Principles of Statutory Interpretation
{¶59} Venerable principles of statutory construction require that in construing statutes, courts must give effect to every word and clause in the statute. State ex rel. Carna v. Teays Valley Local School Dist. Bd. of Edn., 131 Ohio St.3d 478, 2012-Ohio-1484, ¶18, citing Boley v. Goodyear Tire & Rubber Co., 125 Ohio St.3d 510, 2010-Ohio-2550, ¶21. Courts must read words and phrases in context and construe them in accordance with rules of grammar and common usage and may not restrict, constrict, qualify, narrow, enlarge, or abridge the General Assembly‘s wording. (Citations omitted.) Id. A court should avoid a construction that renders a provision meaningless or inoperative. Id. at ¶19, citing State ex rel. Myers v. Spencer Twp. Rural School Dist. Bd. of Edn., 95 Ohio St. 367, 373 (1917). Furthermore, when a statute‘s language is clear
{¶60} A court‘s “paramount concern” when construing a statute is the statute‘s legislative intent, and courts should avoid adopting a construction of a statute that would result in circumventing the evident purpose of the enactment. (Citations omitted.) Cincinnati Post, supra, at 543.
Interpretation of R.C. 121.22(G)(1)
{¶61} The issue before us is whether the trial court correctly interpreted
{¶62} As previously indicated, “if a public body holds an executive session pursuant to division (G)(1) * * *, the motion and vote to hold that executive session shall state which one or more of the approved purposes listed in division (G)(1) of this section are the purposes for which the executive session is to be held[.]” (Emphasis added.)
{¶63} Although no court has interpreted
{¶64} In Long, supra, the Supreme Court of Ohio held that a public body violated
{¶65} The Long court relied on the Ohio Attorney General‘s interpretation of
{¶66} The Long court also relied on our decision in Jones v. Brookfield Twp. Trustees, 11th Dist. Trumbull No. 92-T-4692, 1995 WL 411842 (June 30, 1995), where we held that a public body‘s reference to “police personnel issues” did not comply with
{¶67} Similarly, in Weisbarth v. Geauga Park Dist., 11th Dist. Geauga No. 2007-G-2780, 2007-Ohio-6728, we stated
{¶68} Our sister districts have interpreted
{¶70} Thus, the trial court erred by granting the Board‘s motion for summary judgment with respect to the remaining counts of Mr. Ames’ complaint.
{¶71} Mr. Ames’ first assignment of error has merit in part.
Denial of Summary Judgment to Mr. Ames
{¶72} Within his first assignment of error, Mr. Ames also argues the trial court erred by denying his motion for summary judgment.
Standard of Review
{¶73} We review a trial court‘s order denying summary judgment de novo. (Citations omitted.) Meeker R&D, Inc. v. Evenflo Co., Inc., 11th Dist. Portage Nos. 2014-P-0060 & 2015-P-0017, 2016-Ohio-2688, ¶24.
{¶74} As previously indicated, a party moving for summary judgment “bears the initial responsibility of informing the trial court of the basis for the motion, and identifying those portions of the record before the trial court which demonstrate the absence of a genuine issue of fact.” Dresher, supra, at 293.
Burden Shifting in an OMA Case
{¶75} A party who files a complaint alleging a violation of the OMA has the ultimate burden to prove by a preponderance of the evidence that a public body violated (or
{¶76} In an action brought under
{¶77} If the plaintiff or relator cannot show that the exception is inapplicable or invalid, he has failed to prove the public body violated the OMA, i.e., he has failed to meet his burden of proof. Id. If, on the other hand, the plaintiff or relator can show that the exception is not applicable or not valid, he has met his burden of proof. Id.
Analysis
{¶78} As previously indicated, the relevant meeting minutes are part of the record.2 Since the meeting minutes reflect that the Board entered into executive session
at each meeting, Mr. Ames met his initial burden of showing that a meeting of the majority of the members of a public body occurred and that the general public was excluded from that meeting.
{¶79} Since the meeting minutes also reflect that the Board recited
{¶80} The meeting minutes reflect that the Board listed all the permissible purposes set forth in
{¶81} Based on the record before us, however, the actual purpose or purposes that the Board intended to discuss during each executive session are unclear. There is no evidence in the record demonstrating that the Board did not reasonably intend to discuss all of the permissible purposes listed in the meeting minutes. Thus, Mr. Ames has not identified portions of the record before the trial court which demonstrate the absence of a genuine issue of material fact. Accordingly, Mr. Ames has failed to meet
{¶82} The remainder of Mr. Ames’ first assignment of error is without merit.
Grant of Protective Order
{¶83} In his second assignment of error, Mr. Ames argues the trial court erred by granting the Board‘s motion for a protective order and denying him certain discovery.
{¶84} “The standard of review of a trial court‘s decision in a discovery matter is whether the court abused its discretion.” (Citation omitted.) State ex rel. Denton v. Bedinghaus, 98 Ohio St.3d 298, 2003-Ohio-861, ¶ 31. An abuse of discretion is the trial court‘s “failure to exercise sound, reasonable, and legal decision-making.” State v. Beechler, 2d Dist. Clark No. 09-CA-54, 2010-Ohio-1900, ¶62, quoting Black‘s Law Dictionary 11 (8th Ed.2004).
{¶85} Initially, we note that Mr. Ames did not properly appeal the trial court‘s entry regarding the motion for a protective order. The only judgment entry designated in and attached to Mr. Ames’ notice of appeal is the trial court‘s entry regarding summary judgment. See App.R. 3(D) (“The notice of appeal * * * shall designate the judgment, order or part thereof ap[p]ealed from“); Loc.R. 3(D)(2) (“The appellant shall attach to the Notice of Appeal, a copy of the judgment entry or entries being appealed“). In the interest of justice, we will review this assignment of error.
{¶86}
{¶87} “Upon motion by any party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending may make any order that justice requires to protect a party or person from annoyance, embarrassment,
{¶88} Mr. Ames’ argument focuses on the Board‘s alleged motivations and actions in seeking the order. For instance, Mr. Ames asserts that the Board moved for a protective order as a “ruse” to “delay” or “avoid” discovery, that the Board‘s motion was deficient because the Board failed to recite its efforts to resolve the matter through discussion, that the Board‘s stated legal basis was invalid, and that the Board engaged in frivolous conduct. Mr. Ames does not address how any of these issues are relevant to whether the trial court abused its discretion.
{¶89} Mr. Ames asserts that the trial court denied the “discovery of evidence that would militate the gravity of the Board‘s willful and continuing violations of the OMA” and that he was prejudiced by the Board‘s “failure to preserve much of that evidence.”
{¶90} However, Mr. Ames does not identify the evidence to which he is referring and how he was prejudiced by its omission. The record demonstrates that the trial court
{¶91} In fact, Mr. Ames moved for summary judgment before any evidence was submitted into the record. And curiously, Mr. Ames opposed the trial court‘s efforts to facilitate Mr. Ames’ receipt of evidence that would support his claims, such as the Board‘s meeting minutes. Further, when the Board moved for summary judgment, Mr. Ames did not move for a continuance to obtain additional discovery pursuant to
{¶92} An appellant “bears the burden of affirmatively demonstrating error on appeal.” (Citations omitted.) State v. Herron, 11th Dist. Lake No. 2009-L-119, et al., 2010-Ohio-2050, ¶16. “It is not the obligation of an appellate court to search for authority to support an appellant‘s argument as to an alleged error.” (Citations omitted.) Id. Mr. Ames has not affirmatively demonstrated that the trial court abused its discretion in granting the protective order.
{¶93} Mr. Ames’ second assignment of error is without merit.
{¶94} Based on the foregoing, (1) we dismiss as moot Mr. Ames’ appeal with respect to Count LV of his complaint; (2) we reverse the trial court‘s grant of summary judgment to the Board on the remaining counts of Mr. Ames’ complaint; (3) we affirm the trial court‘s denial of summary judgment to Mr. Ames; (4) we affirm the trial court‘s grant
THOMAS R. WRIGHT, P.J.,
TIMOTHY P. CANNON, J.,
concur.