Ames v. Rootstown Twp. Bd. of Trs.

151 N.E.3d 37

2019 Ohio 5412

Brian M. AMES, Plaintiff-Appellant,

v.ROOTSTOWN TOWNSHIP BOARD OF TRUSTEES, Defendant-Appellee.

NO. 2019-P-0019

Court of Appeals of Ohio, Eleventh District, Portage County.

Decided December 31, 2019

Brian M. Ames, pro se, 2632 Ranfield Road, Mogadore, OH 44260 (Plaintiff-Appellant).

James F. Mathews and Andrea K. Ziarko, Baker, Dublikar, Beck, Wiley & Mathews, 400 South Main Street, North Canton, OH 44720 (For Defendant-Appellee).

CYNTHIA WESTCOTT RICE, J.

{¶1} Appellant, Brian M. Ames, appeals from the February 13, 2019 judgment of the Portage County Court of Common Pleas granting summary judgment in favor of appellee, Rootstown Township Board of Trustees. For the reasons discussed below, we affirm in part, reverse in part, and remand for further proceedings.

{¶2} In 2017, Mr. Ames filed a complaint against the Rootstown Township Board of Trustees ("Board") alleging 16 violations of the Ohio Open Meetings Act, R.C. 121.22 ("OMA"). Specifically, in Counts I, IV, V, VI, and VII, Mr. Ames asserts that the Board held executive sessions for unapproved purposes on five dates: May 4, 2015; September 22, 2015; October 13, 2015; November 24, 2015; and December 8, 2015.

{¶3} In Counts VIII, IX, XI, XII, XIII, XIV, XV, and XVI, Mr. Ames asserts the Board entered into executive session to discuss economic issues but violated the OMA by failing to determine by roll call vote that the executive session was "necessary to protect the interests of the applicant or the possible investment or expenditure of public funds to be made in connection with the economic development project," according to R.C. 121.22(G)(8). The relevant dates of those meetings are February 9, 2016; March 8, 2016; April 12, 2016; May 10, 2016; May 24, 2016; June 14, 2016; June 28, 2016; and September 13, 2016.

{¶4} Mr. Ames also asserts, in Count II, that on July 9, 2015, the Board held a special meeting for the purpose of reviewing and approving the 2016 budget, but that the Board violated the OMA by also voting to pay invoices through a resolution during that meeting, which was not the purpose for which notice was given.

{¶5} In Count III, Mr. Ames claims that on August 11, 2015, the Board entered into executive session for the purpose of employee discipline and pending litigation, which violated the OMA because no attorney was present.

{¶6} And, finally, in Count X, Mr. Ames claims that on March 22, 2016, following adjournment of a Board meeting, the Board took action to hire an employee in violation of the OMA.

{¶7} The sole basis for these claims is the meeting minutes of each meeting. Following discovery, both parties moved for summary judgment. Each attached a copy of the meeting minutes and a copy of the opposing party's responses to interrogatories. In addition, the Board attached an affidavit of David McIntyre, a trustee of the Board who was in attendance at the relevant sessions, attesting to the content of the meetings. The trial court granted the Board's motion for summary judgment and denied Mr. Ames'. Mr. Ames now appeals, assigning seven errors for our review.

{¶8} Appellate courts review summary judgment de novo. Grafton v. Ohio Edison Co. , 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). "A de novo review requires the appellate court to conduct an independent review of the evidence before the trial court without deference to the trial court's decision." (Citation omitted.) Peer v. Sayers , 11th Dist. Trumbull No. 2011-T-0014, 2011-Ohio-5439, 2011 WL 5028693, ¶27.

{¶9} Mr. Ames' first four assignments of error relate to the same facts: namely, that the court erred in its finding that the "conferences held on May 4, 2015, August 11, 2015, September 22, 2015, October 13, 2015, November 24, 2015, and December 8, 2015 * * * did not violate the OMA" because the conferences were informational only and did not include deliberations or official actions, and thus, were not "meetings," as defined by the statute. Accordingly, the first four assignments of error will be addressed together. The first states:

{¶10} The Trial Court erred in evaluating whether particular gatherings of the Board constitute meetings. (T.d. 42 page 5)

{¶11} Under this assignment of error, Mr. Ames asks: does the existence of official meeting minutes of a public body conclusively prove that a meeting of that public body occurred?

{¶12} The second states:

{¶13} 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 does not constitute "meeting" or "executive session" when no deliberations or official actions took place. (T.d. 42 page 8)

{¶14} Under this assignment of error, Mr. Ames raises two issues: (1) Is an executive session ever a meeting as defined by R.C. 121.22(B)(2) ? And (2) must a public body deliberate or take official action in an executive session for it to constitute an executive session?

{¶15} The third states:

{¶16} The Trial Court erred in finding that [t]he right of members of a public body to meet privately is not limited to the statutory exceptions listed [ ] [sic] under R[.]C. 121.22(G). (T.d. 42 page 6).

{¶17} Under this assignment of error, Mr. Ames raises two issues: (1) is the right of the Board to meet privately limited to the statutory exceptions listed in R.C. 121.22(G) ; and (2) is the motion and vote to conduct an executive session recorded in the official meeting minutes of a public body conclusive evidence to prove that an executive session occurred in that meeting and to support that holding an executive session violated the OMA?

{¶18} The fourth states:

{¶19} 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". (T.d. 42 pg 8).

{¶20} Under this assigned error, Mr. Ames asks: may a public body exclude the public from part of an open meeting by moving into executive session and later contend that the executive session is instead a "so-called executive session" or a "conference" not subject to the OMA?

{¶21} The party alleging a violation of the OMA has the burden to prove, by a preponderance of the evidence, that the OMA was violated or threatened to be violated by the relevant public body. State ex rel. Hardin v. Clermont Cty. Bd. of Elections , 12th Dist. Clermont, 2012-Ohio-2569, 972 N.E.2d 115, ¶23. Once the violation or threatened violation is established, the burden shifts to the public body to show that the meeting fell under one of the OMA exceptions. Id. at ¶25. If it does so, the burden again shifts to the plaintiff to show the exception is not applicable or valid. Id.

{¶22} This court has previously held that in order for the OMA to apply, a public body must simultaneously (1) conduct a meeting and (2) deliberate concerning public business. Holeski v. Lawrence , 85 Ohio App.3d 824, 829, 621 N.E.2d 802 (11th Dist.1993). This court, however, has recently completed a critical review of that precedent and found it cannot withstand the deeper scrutiny that has come with increased litigation regarding the OMA. Bode v. Concord Twp. , 11th Dist. Lake, 2019-Ohio-5062, 137 N.E.3d 1245, ¶3. Revising our earlier precedent, this court held:

{¶23} (1) The OMA applies to any "meeting," which means (a) any prearranged discussion (b) of the public business of the public body (c) by a majority of its members.

{¶24} (2) "Discussion of the public business" means the exchange of words, comments or ideas by the public body.

{¶25} (3) "Public business" means matters within the purview of a public body's duties, functions and jurisdiction.

{¶26} (4) The following activities do not constitute a "meeting": (a) information-gathering, fact-finding, or the gathering of facts and information for ministerial purposes unless there is also a discussion of public business between the members of the public body during the activity; or (b) a majority of a public body being in the same room and answering questions or making statements to other persons who are not public officials, even if those statements relate to the public business.

{¶27} (5) The OMA applies to any "executive session," which means (a) a portion of a "meeting" (b) held after a majority of a quorum of the public body determines, by a roll call vote, to hold an executive session, (c) held for the sole purpose of the consideration of any of the matters set forth in R.C. 121.22(G)(1) through (8), and (d) at which the public may be excluded.

{¶28} (6) The OMA applies to a "meeting" or an "executive session" regardless of whether the public body deliberates.

{¶29} (7) A resolution, rule, or formal action adopted in an open meeting that results from deliberations in a meeting not open to the public is invalid unless the deliberations were (a) for a purpose specifically authorized in division (G) or (J) of R.C. 122.21 and (b) conducted at an executive session held in compliance with R.C. 121.22.

{¶30} (8) And finally, a public body "deliberates" by thoroughly discussing all of the factors involved in a decision, carefully weighing the positive factors against the negative factors, cautiously considering the ramifications of its proposed action, and gradually arriving at a proper decision which reflects the legislative process. Id. at ¶5-12.

{¶31} We review Mr. Ames' errors in light of this new precedent. Though he need not show that the Board conducted deliberations, to prevail on a motion for summary judgment, he must show that the Board violated the OMA. Here, Mr. Ames asserts that the Board violated the OMA by convening executive sessions for purposes not authorized by statute.

{¶32} David McIntyre swore in his affidavit that no discussions or deliberations as to public business were held during the May 4, 2015, September 22, 2015, October 13, 2015, November 24, 2015, and December 8, 2015 so-called...