Bode v. Concord Twp.

137 N.E.3d 1245

2019 Ohio 5062

Douglas BODE, Plaintiff-Appellant,

v.CONCORD TOWNSHIP, et al., Defendants-Appellees.

NO. 2018-L-116

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

Decided December 9, 2019

David Comstock and Christopher Mars, Bonezzi Switzer Polito & Hupp Co., LPA, 3701B Boardman-Canfield Road, Suite 101 (For Plaintiff-Appellant).

Michael Lucas and Stephanie Landgraf, Wiles and Richards, 37265 Euclid Avenue, Willoughby, OH 44094 (For Defendants-Appellees).

MARY JANE TRAPP, J.,

{¶1} Appellant, Douglas Bode ("Mr. Bode"), appeals the judgment of the Lake County Court of Common Pleas finding in favor of appellees, Concord Township Board of Trustees (the "Board"), following a bench trial. We determine the Board committed a technical violation of Ohio's Open Meetings Act (the "OMA") so that an injunction ordering the Board to comply with the OMA is appropriate, but we do not invalidate Mr. Bode's suspension and demotion approved by the Board.

{¶2} Thus, we affirm in part, reverse in part, and remand to the trial court for further proceedings.

{¶3} While the Board, its counsel, and the trial court adhered to prior case law guidance from this court, particularly our opinion in Holeski v. Lawrence , 85 Ohio App.3d 824, 621 N.E.2d 802 (1993), after a critical review of that precedent, we find it cannot withstand the deeper scrutiny that has come with increased litigation regarding the OMA. We have a duty to review our precedent "and, when reconciliation is impossible, to discard [ ] former errors." (Citation omitted.) Westfield Ins. Co. v. Galatis , 100 Ohio St.3d 216, 2003-Ohio-5849, 797 N.E.2d 1256, ¶43.

{¶4} Following the intent of Ohio "Sunshine Laws," we find as follows:

{¶5} (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.

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

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

{¶8} (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.

{¶9} (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.

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

{¶11} (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.

{¶12} (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.

Substantive and Procedural Facts

{¶13} Mr. Bode was a part-time lieutenant with the Concord Township Fire Department (the "Department") who the Board suspended and demoted following a series of incidents alleging unacceptable conduct.

{¶14} Mr. Bode previously filed a notice of appeal of an administrative decision in a separate complaint in the Lake County Court of Common Pleas, citing a litany of failures by the Department and the Board to comply with mandated procedures for imposing removal. The Board filed a motion to dismiss the appeal as time-barred under R.C. 505.38(A), and the appeal was dismissed by the trial court for want of jurisdiction. That decision was upheld by this court in Bode v. Concord Twp. Bd. of Trustees , 11th Dist. Lake No. 2018-L-043, 2019-Ohio-2666, 2019 WL 2744681.

{¶15} Mr. Bode brought the underlying action as a procedural challenge under R.C. 121.22, the OMA. He sought, inter alia, to invalidate the suspension and demotion approved by the Board and an injunction ordering the Board to comply with the OMA. A substantive challenge regarding the alleged incidents of unacceptable conduct supporting Mr. Bode's suspension and demotion are not subject to the current appeal.

{¶16} That being said, the Board originally discussed the potential suspension and demotion of Mr. Bode at a March 27, 2017 special meeting during an executive session to which Fire Chief Matthew Sabo ("Chief Sabo") was invited to attend. Following the special meeting and executive session, no action was authorized by vote or taken by the Board. That same day, however, Chief Sabo drafted a two-page letter to Mr. Bode—following the suggestion of the Board that he follow his best judgment in crafting an appropriate disciplinary action consistent with the employee handbook—informing him that he would be suspended and demoted, outlining the unacceptable conduct, citing the Standard Operating Guidelines that were violated, and stating that the suspension and demotion was "effective immediately." Mr. Bode signed the letter where prompted, acknowledging receipt.

{¶17} Thereafter, the Board moved for, voted on, and approved Mr. Bode's suspension and demotion at its regularly scheduled April 5, 2017 meeting. The suspension was made retroactive to March 27, 2017. The minutes of that meeting, which contained the vote in favor of Mr. Bode's suspension and demotion, were approved by the Board on April 19, 2017.

{¶18} Mr. Bode filed the complaint underlying the present appeal claiming that the special meeting and executive session conducted by the Board on March 27, 2017 failed to conform with the statutory requirements of the OMA. His claim is that following and resulting from a non-conforming executive session of the Board, he was suspended for six months and demoted from a part-time lieutenant to a part-time firefighter/paramedic with the Department.

{¶19} Mr. Bode filed a motion for summary judgment, which the trial court overruled. Thereafter, the matter proceeded to trial, where the following relevant testimony was presented to the trial court:

{¶20} Two trustees for the Board testified, and both gave similar testimony regarding the March 27, 2017 special meeting and executive session. Trustee Galloway testified that there were no deliberations on either March 27, 2017 or April 5, 2017 regarding Mr. Bode's employment.

He stated that Chief Sabo was invited into executive session to update the Board on an issue concerning Mr. Bode's performance during a fire response earlier in the month, as well as his previous history of performance concerns. Trustee Galloway stated that both Trustee Malchesky and the third trustee of the Board were already aware of Chief Sabo's concerns through previous discussions with other officials but no authorization to act was given to Chief Sabo before April 5. Trustee Galloway offered the following testimony regarding the motion and vote to enter execute session:

{¶21} "[ATTORNEY LUCAS]: Now, there was a motion on the special meeting minutes of March 27, 2017, which I believe is plaintiff's exhibit 1, to go into executive session.

{¶22} "[MR. GALLOWAY]: Correct.

{¶23} "[ATTORNEY LUCAS]: And the minutes themselves simply state that a motion was made to go into executive session, correct?

{¶24} "[MR. GALLOWAY]: That is correct.

{¶25} "[ATTORNEY LUCAS]: Okay, and you made that motion.

{¶26} "[MR. GALLOWAY]: I made that motion.

{¶27} "[ATTORNEY LUCAS]: Right. Then, did you actually enunciate the reasons for going into executive session?

{¶28} "[MR. GALLOWAY]: I did.

{¶29} "[ATTORNEY LUCAS]: And they're not part of the minutes, right?

{¶30} "[MR. GALLOWAY]: They are not.

{¶31} "[ATTORNEY LUCAS]: And they're also ... they were subject to approval process at the April 5, 2017 ... meeting of April 5, 2017.

{¶32} "[MR. GALLOWAY]: Yes, they were.

{¶33} "[ATTORNEY LUCAS]: And, regrettably, it was not verbatimly corrected.

{¶34} "[MR. GALLOWAY]: There were no additions made.

{¶35} "[ATTORNEY LUCAS]: Okay.

{¶36} "[JUDGE LUCCI]: And your stated reason was personnel matters?

{¶37} "[MR. GALLOWAY]: Your honor, the motion that I made was in two parts, for the purposes of potential employee discipline, as well as a potential new hire.

{¶38} "[JUDGE LUCCI]: All right; so, it wasn't just a blanket personnel; it was specific as to discipline and hiring two separate employees.

{¶39} "[MR. GALLOWAY]: That is correct, and I believe that the notice that was made was done as personnel matters, which is probably just an attempt by our administrator at the time to sort of sew those together, if you will, in terms of the notification. But the actual motion that I made to go into executive session was explicit as to the two matters. Our legal counsel is extremely detailed in those matters and always insisted –

{¶40} "[JUDGE LUCCI]: It wouldn't be Mr. Lucas, would it?

{¶41} "[MR. GALLOWAY]: It is Mr. Lucas, yes.

{¶42} "[ATTORNEY COMSTOCK]: I'll stipulate to that, if you'd like.

{¶43} "[ATTORNEY LUCAS]: Please; you flatter me.

{¶44} "[MR. GALLOWAY]: I can tell the Court that in the thirteen years that I've been a trustee with Mr. Lucas as our legal counsel, that is one area that he is extremely explicit, that actual reason must be given, that it relates to O.R.C."

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