Court of Appeals of Ohio, Eleventh District, Portage
STATE OF OHIO ex rel. BRIAN M. AMES, Relator-Appellant,
BRIMFIELD TOWNSHIP BOARD OF TRUSTEES, Respondent-Appellee.
Appeal from the Portage County Court of Common Pleas, Case
No. 2017 CV 00226.
Affirmed in part and reversed in part; remanded.
M. Ames, pro se, (Relator-Appellant).
F. Mathews and Andrea K. Ziarko, Baker, Dublikar, Beck, Wiley
& Mathews, (For Respondent-Appellee).
TIMOTHY P. CANNON, J.
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
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.
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
4. On the dates set forth in relator's complaint, no
discussions or deliberations as to public business were held
outside the public meeting. * * *
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.
Ames filed a timely notice of appeal and raises five
assignments of error for our review. For clarity and
convenience, we initially combine ...