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State ex rel. Ames v. Portage County Board of Commissioners

Court of Appeals of Ohio, Eleventh District, Portage

June 12, 2017

STATE OF OHIO ex rel. BRIAN M. AMES, Relator-Appellant,
v.
PORTAGE COUNTY BOARD OF COMMISSIONERS, et al., Respondents-Appellees.

         Civil Appeal from the Portage County Court of Common Pleas. Case No. 2015 CV 00958.

          Brian M. Ames, pro se, (Relator-Appellant).

          Victor V. Vigluicci, Portage County Prosecutor, and Denise L Smith, Chief Assistant Prosecutor, (For Respondents-Appellees).

          OPINION

          TIMOTHY P. CANNON, J.

         {¶1} Relator-appellant, State of Ohio ex rel. Brian M. Ames ("Mr. Ames"), appeals from a decision rendered by the Portage County Court of Common Pleas granting summary judgment in favor of respondents-appellees, the Portage County Board of Commissioners and its three commissioners: Maureen T. Frederick, Kathleen Chandler, and Vickie A. Kline (collectively, "the Board"). For the reasons that follow, the trial court's judgment is affirmed.

         Facts and Procedural History

         {¶2} This case originated in November 2015. On February 2, 2016, upon order of the trial court, Mr. Ames filed a pro se "Amended Verified Complaint in Mandamus, Injunction and Declaratory Judgment" against the Board, alleging six counts in violation of R.C. 121.22, Ohio's Open Meetings Act. The essence of Mr. Ames' complaint is that the Board held four separate meetings on November 4, 2015; the Board called one of those meetings as an "emergency meeting" when there was no emergency; the Board did not give proper notice of one of those meetings; the Board discussed matters not disclosed in the notices that were given; and the Board failed to keep full and accurate minutes of each meeting. Mr. Ames attached copies of four public notices that had been published in the Ravenna Record Courier. The authenticity and content of these notices are not disputed. They are summarized as follows:

■ On October 23, 2015, the Board published notice of cancelling its regularly scheduled meetings for November and December 2015.
■ Also on October 23, 2015, the Board published notice of a Special Meeting on November 4, 2015, at 11:00 a.m. The noticed purpose of the Special Meeting was "to meet in an Executive Session to discuss details relative to the security arrangements and emergency response protocols for a public body or a public office.
■ On October 25, 2015, the Board published notice of Special Meetings "to review the Fiscal Year 2016 budgets with Elected Officials and Department Heads" on three separate days: November 2, from 8:00 a.m. to 4:30 p.m.; November 3, from 1:30 p.m. to 4:30 p.m.; and November 4, from 10:00 a.m. to 10:30 a.m.
■ On November 4, 2015, the Board published notice of a Special Emergency Meeting on November 4, 2015, beginning at 9:30 a.m. The stated purpose of this Special Emergency Meeting was "to meet with the Portage Park District to discuss the Hiram Hike and Bike Trail and to conduct Budget meetings as previously advertised."

         {¶3} The Board filed an answer, denying it had violated any provisions of R.C. 121.22.

         {¶4} Mr. Ames filed a motion for summary judgment, asserting no genuine issue as to any material fact alleged in his complaint remained to be litigated. He stated only one set of minutes exist for November 4, 2015, but four separate meetings were held that day. He attached a copy of the minutes to his motion. The "material facts" he says cannot be disputed are as follows:

         {¶5} The first meeting was the Special Emergency Meeting at 9:30 a.m., for which notice was published in the Record Courier that same day. Because there was no actual emergency, it should not have been called as an emergency meeting; notice was therefore required to be given more than 24 hours in advance. The Board also held an improper executive session because it was not related to the purpose of the Special Emergency Meeting.

         {¶6} The second meeting was the Special Meeting from 10:00 to 10:30 a.m., for which notice was published on October 25, 2015. The purpose of this meeting was to discuss the 2016 budget.

         {¶7} The third meeting was the Special Meeting at 11:00 a.m., for which notice was published on October 23, 2015. The purpose of this meeting was to discuss security and emergency protocols.

         {¶8} The fourth meeting commenced at 1:16 p.m. Mr. Ames stated the minutes do not reflect a proper closing of any of the three earlier meetings; the recess occurred at the end of the third meeting, the purpose of which was to discuss security; the fourth meeting exceeded the scope and purpose of the third meeting; thus, a reasonable person would have concluded that the fourth meeting was a new meeting, not a continuation. Notice was not published for this fourth meeting.

         {¶9} The Board responded in opposition and filed its own motion for summary judgment. The Board asserted no genuine issue existed as to the following material facts: only one meeting was held on November 4, 2015; three separate notices were issued regarding the time, place, and purposes for that one meeting; and the minutes of that one meeting accurately reflect that those purposes were discussed. The Board further asserted there was no issue of law regarding the propriety of its emergency meeting.

         {¶10} Attached to the Board's motion was an affidavit of Amy Hutchinson, the Board's Clerk, who averred the following, in relevant part:

7. In November 2015, two (2) of the three (3) members of the Board of Portage County Commissioners were unavailable for meetings.
8. One (1) commissioner was unavailable or available on a limited basis for medical reasons from November 9, 2015 through November 23, 2015.
9. One (1) commissioner was out of the Country from November
10. 2015 through December 1, 2015.
10. * * *
11. The next scheduled Board meeting after October 30, 2015, was Tuesday, November 3, 2015.
12. At the request of the Board of Commissioners, on November 3, 2015, I sent an email transmission to the Ravenna Record Courier and other news media outlets with notification of a meeting of the Board set for November 4, 2015 for the purpose of a discussion with the Portage Park District regarding the Hiram Hike and Bike Trail and budget discussions.
13. A true and accurate copy of the minutes of the Portage County Board of Commissioners' November 4, 2015 meeting is attached hereto as Exhibit D.

         {¶11} The minutes from November 4, 2015, indicate the ...


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