STATE OF OHIO ex rel. BRIAN M. AMES, Relator-Appellant, - vs - BRIMFIELD TOWNSHIP BOARD OF TRUSTEES, Respondent-Appellee.
CASE NO. 2019-P-0018
IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY, OHIO
December 16, 2019
2019-Ohio-5311
Civil Appeal from the Portage County Court of Common Pleas, Case No. 2017 CV 00226. Judgment: Affirmed in part and reversed in part; remanded.
James F. Mathews and Andrea K. Ziarko, Baker, Dublikar, Beck, Wiley & Mathews, 400 South Main Street, North Canton, OH 44720 (For Respondent-Appellee).
TIMOTHY P. CANNON, J.
{¶1} Appellant, Brian M. Ames (“Ames“), appeals from a decision rendered by the Portage County Court of Common Pleas granting summary judgment in favor of appellee, the Brimfield Township Board of Trustees (“the Board“). The trial court‘s judgment is affirmed in part and reversed in part.
{¶2} On March 6, 2017, Ames filed a pro se “Verified Complaint in Mandamus, Injunction, and Declaratory Judgment” against the Board, alleging 12 violations of
{¶3} The Board filed an answer, denying it had violated any provisions of
* * * 3. During the so-called “executive sessions” named in relator‘s complaint, the Board met with employees of the township, who conveyed information or general advice received from the township‘s attorney as to pending litigation or legal contracts, or spoke to the township‘s attorney on the telephone concerning pending litigation or other legal matters. The information received during these so-called “executive sessions” was confidential, attorney-client information, and was privileged.
4. On the dates set forth in relator‘s complaint, no discussions or deliberations as to public business were held outside the public meeting. * * *
The right of members of a public body to meet privately is not limited to the statutory exceptions listed above under
R.C. 121.22(G) . EvenR.C. 121.22(A) itself, which generally states that public bodies are to take official action and conduct deliberation only in open meetings recognizes that this rule is subject to the limitation “unless . . . specifically excepted by law.” The Code was not confined to “unless specifically excepted under subsection (G).” Thus, the “executive session” exceptions are neither all-inclusive nor exclusive. * * *I find that the conferences held on [each of the 12 dates in the complaint] by the Board with township employees, to relay information from the township‘s attorney, did not violate the OMA. The only evidence before this Court as to what transpired during those conferences was presented by Brimfield Township Trustee Mike Kostensky‘s affidavit, which set forth that the Board met with employees of the township, who conveyed information or general advice received from the township‘s attorney as to pending litigation or legal contracts, or spoke to the township‘s attorney on the telephone concerning pending litigation or other legal matters (I use the term “conferences” to avoid confusion, as “meeting” has a specific, relevant definition under the governing statute, which does not apply in this scenario.)
Although referred to as “executive sessions” by the Board in its minutes, conferences between the Board and its attorney, or conferences to obtain information from the Board‘s attorney through an employee of the township, do not constitute “meetings” or “executive sessions” when no deliberations or official actions took place. I find that no deliberative processes took place, and that the information received was confidential, as established by Trustee Kostensky.
There is a difference between obtaining information from a public body attorney and deliberation of public business. There is convincing evidence that each of these conferences were informational only, but no evidence that a majority of the Board discussed public business among themselves. As such, the evidence does not establish that simultaneous meetings and deliberations occurred. Therefore, I find these conferences fell outside the scope of the OMA.
[1.] The Trial Court erred in evaluating whether particular gatherings of the Board constitute meetings.
[2.] The Trial Court erred in finding that although referred to as “executive sessions” by the Board in its minutes, conferences between the Board and its attorney, or conferences to obtain information from the Board‘s attorney through an employee of the township, do not constitute “meetings” or “executive sessions” when no deliberations or official actions took place.
[4.] The Trial Court erred by ruling that what the Board referred to as “executive sessions” in its minutes do not constitute “meetings” or “executive sessions.”
{¶6} These three assignments of error relate to the trial court‘s conclusion that the executive sessions held by the Board, as documented in the meeting minutes, are not subject to the OMA because they were not meetings. The trial court initially held that the executive sessions did not violate the OMA but also held the executive sessions were not subject to the OMA because (1) the executive sessions were actually “conferences” rather than executive sessions, and (2) the “conferences” were not meetings.
{¶7} The parties disagree on the applicable standard of review where a mandamus action is decided on summary judgment. Ames advocates for a de novo standard of review for summary judgment rulings, and the Board advocates for an abuse of discretion standard of review for mandamus decisions.
{¶8} While the general rule is that the standard of review in a mandamus case is abuse of discretion, where the lower court grants summary judgment, this court reviews the decision de novo. State ex rel. Manley v. Walsh, 142 Ohio St.3d 384, 2014-Ohio-4563, ¶17, citing State ex rel. Anderson v. Vermilion, 134 Ohio St.3d 120, 2012-Ohio-5320, ¶8-9. This court has previously held, in accordance with the Ohio Supreme Court, that the appropriate standard of review for summary judgment on a mandamus action is de novo. State ex rel. Brannon v. Lakeview School Bd. of Edn., 11th Dist. Trumbull No. 2015-T-0034, 2016-Ohio-1367, ¶8, citing Manley, supra, at ¶17. “Further, this case involves the interpretation of Ohio‘s Open Meeting Act. Our review of the trial court‘s construction of statutes involves questions of law, which we review de novo.” Radtke v. Chester Twp., 11th Dist. Geauga No. 2014-G-3222, 2015-Ohio-4016, ¶19, citing Beaumont v. Kvaerner N. Am. Constr., 11th Dist. Trumbull No. 2013-T-0047, 2013-Ohio-5847, 2013 WL 6887969, ¶8.
{¶9} “Summary judgment is a procedural device intended to terminate litigation and to avoid trial when there is nothing to try.” Frano v. Red Robin Internatl., Inc., 181 Ohio App.3d 13, 2009-Ohio-685, ¶12 (11th Dist.), citing Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 358 (1992). Summary judgment is proper when (1) no genuine issue of material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) viewing the evidence most strongly in favor of the nonmoving party, reasonable minds can come to only one conclusion, and that conclusion is adverse to the nonmoving party. Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977), citing
{¶10} The 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 that demonstrate the absence of a genuine issue of material fact. Dresher v. Burt, 75 Ohio St.3d 280, 292 (1996). The moving party must point to some evidence of the type listed
{¶11} The purpose of Ohio‘s OMA “is to assure accountability of elected officials by prohibiting their secret deliberations on public issues.” State ex rel. Cincinnati Enquirer v. Hamilton Cty. Commrs., 1st Dist. Hamilton No. C-010605, 2002 WL 727023, *1 (Apr. 26, 2002) (citation omitted). The Act “shall be liberally construed to require public officials to take official action and conduct all deliberations upon official business only in open meetings, unless the subject matter is specifically excepted by law.”
{¶12} The trial court‘s conclusion that the executive sessions did not fall within the purview of the OMA resulted in summary judgment in favor of the Board.
{¶13} “In order for the OMA to apply, a public body must simultaneously (1) conduct a ‘meeting’ and (2) ‘deliberate’ concerning public business.” State ex rel. Ames v. Portage Cty. Bd. of Commrs., 11th Dist. Portage No. 2017-P-0093, 2018-Ohio-2888, ¶20 (citation omitted). “‘Meeting’ is defined as ‘any prearranged [1.] discussion of the public business of the public body [2.] by a majority of its members.‘” Id. at ¶21, quoting
{¶14} Further, “deliberation” is defined as “the act of weighing and examining the reasons for and against a choice or measure” or “a discussion and consideration by a number of persons of the reasons for and against a measure.” Radtke, supra, at ¶25, quoting Webster‘s Third New International Dictionary 596 (1961). “‘Discussion’ of the public business is an ‘exchange of words, comments or ideas by the board.‘” Id., quoting Holeski v. Lawrence, 85 Ohio App.3d 824, 830 (11th Dist.1993) (emphasis deleted). “Thus, deliberation requires a member of a public body to discuss public business with another member of the same public body.” Id. (citations omitted).
{¶15} “‘[D]eliberations involve more than information-gathering, investigation, or fact-finding.‘” Ames, supra, at ¶23, quoting Berner v. Woods, 9th Dist. Lorain No. 07CA009132, 2007-Ohio-6207, ¶15. “Information-gathering and fact-finding are essential functions of any board, but do not constitute deliberations that can serve as a basis for a violation of the [OMA].” Id. (citation omitted). “‘Question and answer sessions between board members and other persons who are not public officials do not constitute “deliberations” unless a majority of the board members also entertain a discussion of public business with one another.‘” Id., quoting Springfield Local School Dist. Bd. of Edn. v. Ohio Assn. of Pub. School Emps., Local 530, 106 Ohio App.3d 855, 864 (9th Dist.1995).
{¶16} In the case sub judice, the trial court characterized the executive sessions held during the Board meetings as “conferences” and ultimately concluded that the OMA was not applicable. The reason for this semantical distinction by the trial court is the trial
{¶17} Also, an executive session may only be called during a regular or special meeting of the public body. “[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 * * *.”
{¶18} The trial court‘s reliance on our holding in Holeski v. Lawrence, 85 Ohio App.3d 824 (11th Dist.1993) is misplaced. There, we held that a meeting did not occur where no deliberations took place and no action was taken. The facts of that case are distinguishable from those at hand.
{¶19} During the meeting in Holeski, a committee member submitted a report to the board, which purported to be a product of an ad hoc committee but was actually plagiarized from a previous township report. Id. at 827. Immediately after the public meeting concluded, as the trustees were exiting the meeting room, the plagiarism was discovered. Id. One of the trustees summoned the press and another trustee, who was still in the public meeting room, to the trustees’ office. The committee member had already left the building. Id. Following an examination of the plagiarism in the trustees’ office without the committee member, the board made comments to the press. Id. In that matter, we held that “in order to show a violation of the ‘open meeting’ rule as appellant attempts to do here, either a resolution, rule or formal action of some kind must have been adopted by the public body at a meeting not open to the public.” Id. at 829.
{¶20} As discussed above, in the matter sub judice the meeting minutes on multiple occasions indicate that formal actions were taken as a result of the executive sessions conducted outside of the public. Unlike in Holeski, there is evidence presented by Ames—the meeting minutes—demonstrating that more than just mere discussions took place. Because of this, Holeski is inapplicable to the issues presented herein.
{¶22} Ames’ first, second, and fourth assignments of error have merit.
{¶23} Ames’ third assignment of error states:
[3.] The Trial Court erred in finding that The right of members of a public body to meet privately is not limited to the statutory exceptions listed[] under RC. 121.22(G).
{¶24} The trial court concluded that, in addition to the exceptions contained in
{¶25} The trial court relies on several cases involving disclosures of documents that were subject to attorney-client privilege in specific instances. However, the complaint filed by Ames does not seek disclosure of any privileged documents or information. Further, we do not need to look outside of the statute itself to find exceptions for attorney-board communications.
R.C. 121.22(G)(5) allows a public body to convene an executive session to discuss “[m]atters required to be kept confidential by federal law or regulations or state statutes[.]” On appeal, as it did below, the Board argues that the July 23, 2009 executive session fell underR.C. 121.22(G)(5) because the Board was discussing matters with its statutory counsel and such discussions are protected by the attorney-client privilege which is codified in a state statute (R.C. 2317.02 ). The trial court rejected the Board‘s argument, finding thatR.C. 121.22(G)(5) did not apply to either executive session merely because the Board was conferring with or discussed matters with its legal counsel during the executive sessions.* * * Addressing a similar argument, the First Appellate District held that: ”
R.C. 121.22(G)(5) refers to matters that are ‘required’ to be kept confidential. The commissioners, however, are under no legal duty to assert the attorney-client privilege to keep confidential every discussion that they may have with the prosecuting attorney. * * *”
State ex rel. Hardin v. Clermont Cty. Bd. of Elections, 12th Dist. Clermont Nos. CA2011-05-045 & CA2011-06-047, 2012-Ohio-2569, ¶76-77, quoting Cincinnati Enquirer, 2002 WL 727023, at *5. The First District went on to affirmatively state that “‘the General Assembly, in limiting the circumstances in which such a discussion can be held in executive session, has required a partial waiver of the privilege by the client-public body.‘” Cincinnati Enquirer, 2002 WL 727023, at *5 (emphasis added) (quotation omitted).
{¶27} We agree with the First and Twelfth Appellate Districts’ analysis.
{¶28} Ames’ third assignment of error has merit.
{¶29} Ames’ fifth assignment of error states:
[5.] The Trial Court erred by overruling Ames‘s motion for summary judgment and granting the Board‘s.
{¶30} “While summary judgment is a beneficial procedure aiding in the swift administration of justice, it must also ‘be used cautiously and with the utmost care so that a litigant‘s right to a trial * * * is not usurped in the presence of conflicting facts and inferences.‘” Fifth Third Mtge. Co. v. Perry, 4th Dist. Pickaway No. 12CA13, 2013-Ohio-3308, ¶35, quoting Viock v. Stowe-Woodward Co., 13 Ohio App.3d 7, 15 (6th Dist.1983).
{¶31} The exceptions to the public meeting requirement are contained in
{¶32} Ames requested summary judgment on his 12 claims requiring the Board to comply with the provisions of the OMA. However, when construing the evidence
{¶33} With regard to the Board‘s motion for summary judgment, the meeting minutes and affidavit submitted contradict each other. When construing this evidence in a light most favorable to the nonmoving party, there remains a genuine issue of material fact. As discussed above, the affidavit testimony that “no discussions or deliberations as to public business were held outside the public meeting” is contradicted by the meeting minutes in multiple instances, creating a genuine dispute of material fact. Therefore, summary judgment in favor of the Board was in error.
{¶34} Ames’ fifth assignment of error is without merit regarding his motion for summary judgment and with merit regarding the Board‘s motion for summary judgment.
{¶35} The judgment of the Portage County Court of Common Pleas denying summary judgment in favor of Ames is affirmed, and the judgment granting summary judgment in favor of the Board is reversed. The matter is remanded for further proceedings consistent with this opinion.
THOMAS R. WRIGHT, P.J.,
MARY JANE TRAPP, J.,
concur.