State ex rel. Dunlap v. Violet Twp. Bd. of TrusteesState ex rel. Dunlap v. Violet Twp. Bd. of Trustees
{¶1} Relator Scott Dunlap has filed a petition for writ of mandamus for alleged violations of Ohio‘s Sunshine Laws,
{¶2} Essentially, Relator raises two arguments: (1) Respondents kept minutes which were “inadequate or incorrect” and (2) Respondents improperly entered into executive sessions on multiple occasions. Relator requests the writ to compel Respondents to prepare, file, and maintain full and accurate records of township proceedings, accounts and transactions and to conduct all meetings in public, except for properly called executive sessions.
{¶3} Respondents in turn admit to four violations of the Public Meetings Act in regards to making proper motions to begin executive sessions. However, Respondents argue some of the admitted instances are barred by the applicable statute of limitations. Respondents further argue the remaining instances comply in all respects with the Sunshine laws.
{¶4} SUMMARY JUDGMENT STANDARD
{¶5} The Supreme Court of Ohio in State ex rel. Zimmerman v. Tompkins, 75 Ohio St.3d 447, 448, 663 N.E.2d 639, 1996–Ohio–211, 663 N.E.2d 639 explained the standard for summary judgment: ”
{¶6} MANDAMUS
{¶7} The Supreme Court has held, ”
{¶8} To be entitled to the requested writ of mandamus, Relator must establish a clear legal right to minutes which are more detailed, a clear legal duty on the part of Respondents to provide those, and the lack of an adequate remedy at law. State ex rel. Inskeep v. Staten (1996), 74 Ohio St.3d 676, 677, 660 N.E.2d 1207, 1208.
{¶9} In his first “objection,” Relator argues the minutes for January 20, 2010, April 7, 2010, April 21, 2010, November 3, 2010, and August 3, 2011 have “insufficient facts to understand and appreciate the rationale behind the Board‘s decision.”
{¶10} Respondents argue the minutes are self explanatory by referencing the resolution numbers being approved. Further, Respondents argue Relator has provided no evidence that any discussion took place regarding these votes other than that which is already contained in the minutes. In other words, the resolutions were approved without additional discussion and based upon review of the resolutions alone.
{¶11} Relator does not offer any evidence as to any alleged missing details or any discussions had at the meeting which were not included in the written minutes. Relator merely avers that the minutes are too generalized. We have reviewed the sixteen portions of the minutes cited by Relator in his Motion for Summary Judgment and find they are sufficiently detailed to comply with the statute. We find the details presented in the minutes reflect the entirety of the discussion which took place relative to each vote at each meeting. The requested writ of mandamus as to this “objection” is denied because Relator has failed to demonstrate a clear legal right to anything other than that which already appears in the minutes provided to him.
II.
{¶12} In Relator‘s next “objection“, he argues Respondents “failed to state with requisite specificity the purpose or purposes of convening executive sessions . . . in both its motion and vote and if any individuals present participated in the Executive Session during the Board‘s sessions.”
{¶14}
{¶15} “(I)(1) Any person may bring an action to enforce this section. An action under division (I)(1) of this section shall be brought within two years after the date of the alleged violation or threatened violation. Upon proof of a violation or threatened violation of this section in an action brought by any person, the court of common pleas shall issue an injunction to compel the members of the public body to comply with its provisions.”
{¶16} Relator has filed a writ of mandamus which is clearly brought as “an action to enforce this section.” Based upon the language of the statute, we find Relator‘s claims relative to any alleged failures to comply with the Open Meetings Act are subject to a two year statute of limitations. For this reason, Relator‘s claims relative to the January 15, 2010 and January 16, 2010 minutes are barred by the statute of limitations. Therefore, we will not grant the writ as it relates to the January 15, 2010 and January 16, 2010 minutes even though Respondent has admitted the minutes fail to comply with the statute. Although not raised by Respondents, we likewise hold that claims relative to the minutes for January 20, 2010 are barred by the statute of limitations.
{¶18} There remain seven claims for improper entrance into executive session: April 7, 2010; April 21, 2010; May 5, 2010; November 3, 2010; April 28, 2011; May 18, 2011; and August 3, 2011. The minutes on each of these dates contain both a statutory reason for entering into executive session as well as a roll call vote as required by
{¶19} The minutes for April 7, 2010 and April 21, 2010 both state in relevant part, “Mr. Meyers made a motion to go into Executive Session . . . to discuss sale or purchase of property (according to ORC Section 121.22 G-2).”
{¶20} The minutes for November 3, 2010 provide, “Mr. Meyers made a motion to go into Executive Session . . . per Section of the ORC 121.22-G4 to discuss personnel issues.” Likewise, the minutes for May 18, 2011 state, “Mr. Weltrich made a motion to go into Executive Session . . . to discuss personnel issues per ORC Section 121.22 G4. . .”
{¶21} We find Respondent‘s citation to an appropriate subsection on the foregoing dates coupled with a description of the topic to be discussed in the executive session satisfies the statutory requirements for entering an executive session.
{¶22} On April 28, 2011, the following minutes were recorded, “Mr. Weltlich made a motion to go into Executive Session per the ORC Section 121.22(G)(1) to discuss legal issues,” and on August 3, 2011, the following minutes were recorded, “Mr.
{¶23} When an executive meeting is called, the statute clearly requires the minutes to specifically contain one or more of the purposes listed in
{¶24} (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
{¶26} The minutes for May 5, 2010 provide in relevant part, “Mr. Meyers made a motion to . . . go into Executive Session at 8:40 pm to discuss personnel issues according to ORC Section 121.22 G-2.”
III.
{¶27} Finally, Relator argues he should be awarded the civil forfeiture amounts for violations due pursuant to
{¶28}
{¶29} “(2)(a) If the court of common pleas issues an injunction pursuant to
{¶30} (i) That, based on the ordinary application of statutory law and case law as it existed at the time of violation or threatened violation that was the basis of the injunction, a well-informed public body reasonably would believe that the public body was not violating or threatening to violate this section;
{¶31} (ii) That a well-informed public body reasonably would believe that the conduct or threatened conduct that was the basis of the injunction would serve the public policy that underlies the authority that is asserted as permitting that conduct or threatened conduct.”
{¶32} The award of a civil forfeiture pursuant to
{¶33} While it appears from the plain language of the statute that an award of attorney fees would likewise be appropriate only where an injunction has been issued, the Supreme Court has held that an award of attorney fees may be appropriate where mandamus is issued for a violation of the open meetings act. See State ex rel. Long v. Cardington Village Council (2001), 92 Ohio St.3d 54, 60, 748 N.E.2d 58, 64.(“Based on the foregoing, [Relator] has established her entitlement to the requested extraordinary relief in mandamus. She is also entitled to an award of attorney fees and costs.
{¶35} Relator is granted summary judgment as to the two instances admitted to by Respondents and as to the May 5, 2010, April 28, 2011, and August 3, 2011 minutes relative to entering into executive session. Respondents are granted summary judgment as to all other portions of the petition. A writ of mandamus is issued requiring Respondents to correct the errors found.
By: Delaney, P.J.
Gwin, J. and
Hoffman, J. concur
JUDGES
For the reasons stated in our accompanying Memorandum-Opinion on file, summary judgment is granted in favor of Relator as to the two instances admitted to by Respondents and as to the May 5, 2010, April 28, 2011, and August 3, 2011 minutes relative to entering into executive session. Respondents are granted summary judgment as to all other portions of the petition. A writ of mandamus is issued requiring Respondents to correct the errors found. Relator‘s request for attorney fees is denied. Costs assessed to be divided equally between Relator and Respondent Violet Township Board of Trustees.
JUDGES