THE STATE EX REL. AMES, APPELLANT, v. PORTAGE COUNTY BOARD OF COMMISSIONERS ET AL., APPELLEES.
Slip Opinion No. 2021-Ohio-2374
SUPREME COURT OF OHIO
July 14, 2021
(No. 2020-1120—Submitted March 30, 2021—Decided July 14, 2021.) APPEAL from the Court of Appeals for Portage County, No. 2019-P-0125, 2020-Ohio-4359.
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State ex rel. Ames v. Portage Cty. Bd. of Commrs., Slip Opinion No. 2021-Ohio-2374.]
NOTICE
This slip opinion is subject to formal revision before it is published in an advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.
Mandamus—Public Records Act—Open Meetings Act—Solid-waste-management district (“SWMD“) is a valid entity created under
Per Curiam.
{¶ 1} Appellant, Brian M. Ames, appeals the Eleventh District Court of Appeals’ entry of summary judgment in favor of appellees, Portage County Board of Commissioners (“the board“), Portage County Solid Waste Managemеnt District Board of Commissioners (“SWMD“), and Portage County Court of Common Pleas. The gravamen of Ames‘s claim is that the board violated the Open Meetings Act (
I. Background
A. Creation of the SWMD
{¶ 2}
B. The September 2019 Meetings
{¶ 3} The board generally begins a regularly scheduled public meeting at 9:00 a.m., recites the Pledge of Allegiance, and immediately recesses to a public meeting of the SWMD. When the SWMD meeting is adjourned, the board immediately reconvenes its public meeting regarding official county business. This entire process is open to the public. The board‘s clerk keeps separate minutes for the board‘s meeting on county business and the SWMD meeting.
{¶ 4} In 2019, the board adopted a consent-agenda procedure. The procedure allows for the approval of “routine items like the approval of minutes, approval of bills/ACH payments as presented by thе County Auditor, approval of Then and Now Certifications as presented by the County Auditor,1 as well as other items as listed on the consent agenda rules.” A “yes” vote on the consent agenda is a “yes” vote on each of the items included on the consent agenda.
{¶ 5} On September 17, 2019, the board began its regular meeting at 9:00 a.m. and recessed at 9:01 a.m. to begin the SWMD meeting. At the SWMD meeting, the board adopted a consent agenda containing an approval of minutes from the previous meeting and three resolutions. There was
{¶ 6} The September 26, 2019 meеtings were conducted similarly. The board recessed its meeting at 9:00 a.m. and immediately convened an SWMD meeting. At the SWMD meeting, the board adopted a consent agenda containing an approval of minutes from the September 17 meeting and three resolutions. The board then concluded the SWMD regular agenda, adjourned the meeting at 9:02 a.m., and immediately resumed its meeting regarding county business.
{¶ 7} On December 26, 2019, Ames submitted a public-records request for “the meeting minutes of September 17 and 26, 2019 for the Portage County Board of Commissioners and the Portage County Solid Waste Management District Board of Commissioners.” The following day, the board‘s clerk e-mailed the minutes of the September 17 and September 26 meetings to Ames. The minutes of the SWMD meetings contain the full text of the resolutions approved by consent agenda. For one of the resolutions passed at the September 17 SWMD meeting, the minutes purport to include a “Then and Now Certificate” from the county auditor designated “Exhibit A” to Resolution No. 19-137. But the exhibit was not attached to the minutes approved by the board оr produced in response to Ames‘s public-records request.
C. Ames Seeks a Writ of Mandamus
{¶ 8} On December 27, 2019, the same day he received the response to his public-records request, Ames filed a petition for a writ of mandamus against the board, the SWMD, and the court of common pleas. Ames alleged that the SWMD is a “fictitious body” that “has no basis in law” and that the board violated the Oрen Meetings Act by conducting SWMD business during recesses of the September 2019 board meetings. Ames further alleged that the board‘s use of a consent agenda at the SWMD meetings violated the Open Meetings Act. Ames sought a writ of mandamus compelling the board to prepare, file, and maintain accurate minutes for the September 2019 SWMD meetings and all future meetings аnd ordering all SWMD business to be conducted in open meetings, except for properly called executive sessions. Ames also sought a writ of mandamus compelling the court of common pleas to grant the relief set forth in
{¶ 9} The court of appeals granted an alternative writ, and the parties filed cross-motions for summary judgment. On September 8, 2020, the court of appeals granted appellees’ motion, denied Ames‘s motion, and denied the writs. The court noted that “the SWMD is a valid public body authorized to conduct business with regard to implementing a solid waste management plan that complies with
{¶ 10} Ames appealed to this court as of right.
II. Analysis
{¶ 11} This court reviews de novo a court of appeals’ grant of summary judgment
{¶ 12} To prevail in his claim for mandamus relief under the Open Meetings Act, Ames must establish, by clear and convincing evidence, (1) a clear legal right to the requested relief, (2) a clear lеgal duty on the part of appellees to provide it, and (3) the lack of an adequate remedy in the ordinary course of the law. State ex rel. Am. Civ. Liberties Union of Ohio, Inc. v. Cuyahoga Cty. Bd. of Commrs., 128 Ohio St.3d 256, 2011-Ohio-625, 943 N.E.2d 553, ¶ 22. For Ames‘s request for relief under the Public Records Act, the first two elements are the same, but he need not establish the lack of an adequate remedy in the ordinаry course of the law. Id. at ¶ 24.
A. Validity of the SWMD
{¶ 13} In his first proposition of law, Ames argues that the SWMD is not a valid entity. Therefore, he contends, the board violated the Open Meetings Act by separately conducting SWMD business during recesses of the board‘s regular meetings. And since the business of the SWMD is not contained in the minutes of the board‘s meetings related to county business, Ames argues, the board hаs violated
{¶ 14} Ames‘s contention that the SWMD is a fictitious entity is not supported by
{¶ 15} Here, the board created the SWMD by resolution in 1988, as authorized by
B. The Board‘s Use of a Consent Agenda
{¶ 16} In his second proposition of law, Ames argues that the use of a consent agenda during the September 2019 SWMD meetings violated the Open Meеtings Act. Ames argues that the use of a consent agenda effectively closed the SWMD meetings because it prevented members of the public in attendance at the meetings from knowing which resolutions were being approved and hearing any deliberations on those resolutions.
{¶ 18} We have granted writs of mandamus directing a public body to “prepare, file, and maintain full and accurate minutes and to conduct all meetings in public, except for properly called executive sessions.” State ex rel. Long v. Council of Cardington, 92 Ohio St.3d 54, 61, 748 N.E.2d 58 (2001); see also State ex rel. Inskeep v. Staten, 74 Ohio St.3d 676, 678, 660 N.E.2d 1207 (1996) (granting writ of mandamus to compel a city council “to open all council meetings to the public“).
{¶ 19} In this case, the board approved multiple consent agenda items in a single vote. Although the vote itself was conducted in an open meeting, Ames contends that the board did not state or otherwise make public at the time of the meeting the sрecific resolutions being voted on as part of the consent agenda. He asserts that by failing to inform the public which resolutions were being voted on, this process effectively resulted in the board voting on the individual resolutions in secret. See MORE Bratenahl at ¶ 14 (holding that the Open Meetings Act requires that any official action take place in an open meeting). While the Open Meetings Act does not appear to prevent the board from using consent agendas as a general matter, Ames has raised a plausible theory—sufficient to survive a motion for summary judgment—that the board‘s use of a consent agenda in this manner constructively closes its public meetings and is an impermissible end run around the Open Meetings Act. We therefore conclude that the court of appeals erred in finding, as a matter of law, that the use of a consent agenda in the manner described did not violate the Open Meetings Act.
C. Full and Accurate Minutes of the SWMD Meetings
{¶ 20} For ease of discussion, we next address Ames‘s fourth proposition of law. Ames contends that the minutes of the September 2019 SWMD meetings were not prepared and maintained as required by law and that full and accurate copies of those minutes were not provided in response to his public-records request.
Mandamus is a proper remedy to compel compliance with a public office‘s duty to prepare, file, and maintain full and accurate meeting minutes. See Long at 60-61.
{¶ 22} In large part, the minutes for the two SWMD meetings at issue here satisfied
{¶ 23} The court of appeals held that the omission of Exhibit A from the minutes of the September 17 meeting did not warrant relief in mandamus, because “Ames makes no accusation that the Board intentionally withheld the document” and uncontroverted affidavit tеstimony on behalf of the board establishes that the document is available in the county auditor‘s office, upon request, to any member of the public. 2020-Ohio-4359 at ¶ 15. The court of appeals erred in its reasoning. The board is required to keep full and accurate minutes of its meetings under the Open Meetings Act and to permit public access to those minutes under thе Public Records Act. See Long at 56. In this case, the minutes of the September 17 meeting expressly incorporate an “Exhibit A” that the board has admitted is not included in the approved minutes and was not produced to Ames in response to his public-records request. The fact that Exhibit A is available from another source is immaterial. The board has a duty to maintain a full and accurate record of its proceedings. See White at paragraph one of the syllabus.
{¶ 24} Mandamus is an appropriate remedy to compel a public body to prepare and produce full and accurate meeting minutes under
Because the uncontroverted evidence shows that the board did not produce full and accurate minutes of the September 17 SWMD meeting in response to Ames‘s public-records request, the court of appeals erred in granting summary judgment on Ames‘s mandamus claim as it relates to the minutes of that meeting.
D. Mandamus Claim Against the Court of Common Pleas
{¶ 25} In his third proposition of law, Ames contends that a writ of mandamus should issue directing the court of common pleas to grant relief under
{¶ 26} As a fundamental matter, a court of common pleas is not a proper respondent in a mandamus action. A court
{¶ 27} In any event, Ames‘s argument is flawed on the merits. He seeks a writ of mandamus ordering the court of common pleas to grant the relief provided in
III. Conclusion
{¶ 28} For the foregoing reasons, we affirm the court of appeals’ summary judgment and denial of mandamus relief as to the court of common pleas but reverse it as to the board and the SWMD. We order that the board produce Exhibit A to the minutes of the September 17 SWMD meeting to Ames in response to his public-records request. We remand this cause to the court of apрeals to consider (1) whether the SWMD‘s alleged violation of the Open Meetings Act entitles Ames to further relief and (2) whether Ames should be awarded statutory damages under the Public Records Act.
Judgment affirmed in part and reversed in part, and cause remanded.
O‘CONNOR, C.J., and KENNEDY, FISCHER, DEWINE, DONNELLY, STEWART, and BRUNNER, JJ., concur.
Brian M. Ames, pro se.
Victor V. Vigluicci, Portage County Prosecuting Attorney, and Christopher J. Meduri, Assistant Prosecuting Attоrney, for appellees.