Court of Appeals of Ohio, Eleventh District, Portage
BRIAN M. AMES, Plaintiff-Appellant,
ROOTSTOWN TOWNSHIP BOARD OF TRUSTEES, Defendant-Appellee.
Appeal from the Portage County Court of Common Pleas, Case
No. 2017 CV 00410.
Affirmed in part, reversed in part, and remanded.
M. Ames, pro se, (Plaintiff-Appellant).
F. Mathews and Andrea K. Ziarko, Baker, Dublikar, Beck, Wiley
& Mathews, (For Defendant-Appellee).
CYNTHIA WESTCOTT RICE, J.
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.
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
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.
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.
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.
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.
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.
Appellate courts review summary judgment de novo. Grafton
v. Ohio Edison Co., 77 Ohio St.3d 102, 205 (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,
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:
The Trial Court erred in evaluating whether particular
gatherings of the Board constitute meetings. (T.d. 42 page 5)
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
The second states:
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)
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?
The third states:
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).
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?
The fourth states:
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).
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?
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 Nos. CA2011-05-045 &
CA2011-06-047, 2012-Ohio-2569, ¶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.
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 (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. ...