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State ex rel. Ames v. Brimfield Township Board of Trustees

Court of Appeals of Ohio, Eleventh District, Portage

December 23, 2019

STATE OF OHIO ex rel. BRIAN M. AMES, Relator-Appellant,
v.
BRIMFIELD TOWNSHIP BOARD OF TRUSTEES, Respondent-Appellee.

          Civil Appeal from the Portage County Court of Common Pleas, Case No. 2017 CV 00226.

         Judgment: Affirmed in part and reversed in part; remanded.

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

          James F. Mathews and Andrea K. Ziarko, Baker, Dublikar, Beck, Wiley & Mathews, (For Respondent-Appellee).

          OPINION

          TIMOTHY P. CANNON, J.

         {¶1} Appellant, Brian M. Ames ("Ames"), appeals from a decision rendered by the Portage County Court of Common Pleas granting summary judgment in favor of appellee, the Brimfield Township Board of Trustees ("the Board"). The trial court's judgment is affirmed in part and reversed in part.

         {¶2} On March 6, 2017, Ames filed a pro se "Verified Complaint in Mandamus, Injunction, and Declaratory Judgment" against the Board, alleging 12 violations of R.C. 121.22, Ohio's Open Meetings Act ("OMA"). Ames' complaint alleges that, on specific dates on which meetings were held, the Board entered executive sessions under circumstances not qualified as one of the exceptions contained in R.C. 121.22(G). Namely, the complaint alleges that the executive sessions were held to discuss pending litigation, but they were held without an attorney for the Board present. Therefore, Ames contends the sessions were not excepted by R.C. 121.22(G)(3). That section allows for an executive session for "[conferences with an attorney for the public body concerning disputes involving the public body that are the subject of pending or imminent court action." Ames argues that his claims are supported by the meeting minutes of each meeting and by the admissions made by the Board during discovery that no attorney was physically present at the cited executive sessions.

         {¶3} The Board filed an answer, denying it had violated any provisions of R.C. 121.22. Thereafter, Ames and the Board each filed a motion for summary judgment, asserting no genuine issue as to any material fact alleged in the complaint remained to be litigated. Both parties attached a copy of the meeting minutes and discovery responses to the motions for summary judgment. The Board also attached an affidavit from one of the trustees of the Board, Mike Kostensky, which stated the following:

* * * 3. During the so-called "executive sessions" named in relator's complaint, the Board met with employees of the township, who conveyed information or general advice received from the township's attorney as to pending litigation or legal contracts, or spoke to the township's attorney on the telephone concerning pending litigation or other legal matters. The information received during these so-called "executive sessions" was confidential, attorney-client information, and was privileged.
4. On the dates set forth in relator's complaint, no discussions or deliberations as to public business were held outside the public meeting. * * *

         {¶4} On February 13, 2019, the trial court issued a judgment entry granting the Board's motion for summary judgment and denying Ames' motion for summary judgment. The trial court held the following:

The right of members of a public body to meet privately is not limited to the statutory exceptions listed above under R.C. 121.22(G). Even R.C. 121.22(A) itself, which generally states that public bodies are to take official action and conduct deliberation only in open meetings recognizes that this rule is subject to the limitation "unless . . . specifically excepted by law." The Code was not confined to "unless specifically excepted under subsection (G)." Thus, the "executive session" exceptions are neither all-inclusive nor exclusive. * * *
I find that the conferences held on [each of the 12 dates in the complaint] by the Board with township employees, to relay information from the township's attorney, did not violate the OMA. The only evidence before this Court as to what transpired during those conferences was presented by Brimfield Township Trustee Mike Kostensky's affidavit, which set forth that the Board met with employees of the township, who conveyed information or general advice received from the township's attorney as to pending litigation or legal contracts, or spoke to the township's attorney on the telephone concerning pending litigation or other legal matters (I use the term "conferences" to avoid confusion, as "meeting" has a specific, relevant definition under the governing statute, which does not apply in this scenario.)
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, do not constitute "meetings" or "executive sessions" when no deliberations or official actions took place. I find that no deliberative processes took place, and that the information received was confidential, as established by Trustee Kostensky.
There is a difference between obtaining information from a public body attorney and deliberation of public business. There is convincing evidence that each of these conferences were informational only, but no evidence that a majority of the Board discussed public business among themselves. As such, the evidence does not establish that simultaneous meetings and deliberations occurred. Therefore, I find these conferences fell outside the scope of the OMA.

         {¶5} Ames filed a timely notice of appeal and raises five assignments of error for our review. For clarity and convenience, we initially combine ...


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