Krueck v. Kipton Village Council , 2012 Ohio 1787 ( 2012 )

[Cite as Krueck v. Kipton Village Council, 2012-Ohio-1787.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN )
RICHARD KRUECK C.A. No. 11CA009960
Appellant
v. APPEAL FROM JUDGMENT
ENTERED IN THE
KIPTON VILLAGE COUNCIL COURT OF COMMON PLEAS
COUNTY OF LORAIN, OHIO
Appellee CASE No. 09CV163428
DECISION AND JOURNAL ENTRY
Dated: April 23, 2012
CARR, Presiding Judge.
{¶1} Appellant, Richard Krueck, appeals the judgment of the Lorain County Court of
Common Pleas which granted summary judgment in favor of appellee, Village of Kipton. This
Court reverses.
I.
{¶2} The Chief of Police and another officer of the Kipton Police Department were
charged with criminal offenses which led to their resignations, leaving the village without a
police department. The issue of the status of the police department was discussed at various
village council meetings over many months before Professor James McManus of Lorain County
Community College was ultimately sworn in as the new chief of police. Mr. Krueck was a
member of the village council when the issues surrounding the status of the police department
arose and were resolved. According to council minutes, Mr. Krueck faithfully attended all
council meetings. He suspected that the mayor and various members of the council illegally met
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with Mr. McManus to discuss matters regarding the village police department, i.e., public
business, in violation of R.C. 121.22, Ohio’s Sunshine Law.
{¶3} Mr. Krueck filed a complaint against “Kipton Village Council” in which he
alleged a violation of R.C. 121.22 which requires open meetings where public officials take
official action and conduct deliberations upon official business. The Kipton law director filed a
motion to dismiss the complaint for failure to state a claim upon which relief can be granted for
the reason that the village council is not sui juris and lacks capacity to be sued. The trial court
dismissed Kipton Village Council as a party, but granted leave to Mr. Krueck to amend his
complaint to substitute the appropriate parties. Mr. Krueck subsequently filed an amended
complaint against the Village of Kipton and five named individuals, four of whom he identified
as council members at the time of the alleged illegal meeting.
{¶4} Mr. Krueck sued pursuant to R.C. 121.22(I)(1) to enjoin the Village of Kipton and
various village councilmembers from further violation of the Ohio Sunshine Laws after members
of the village council allegedly met on or about August 13, 2007, in violation of R.C. 121.22.
The Village answered, denying the allegation of a statutory violation. Subsequently, the Village
filed a motion to dismiss the complaint pursuant to Civ.R. 12(B)(6). Mr. Krueck responded in
opposition to the motion to dismiss. The trial court granted the motion to dismiss as it related to
all the individuals named in the complaint for the reason that they had not been served with the
amended complaint, but it denied the motion as it related to the claim against the Village. Mr.
Krueck does not challenge the trial court’s ruling on the motion to dismiss.
{¶5} The Village filed a motion for summary judgment, Mr. Krueck responded in
opposition, and the Village replied. The trial court granted summary judgment in favor of the
Village after finding that “the meeting occurred spontaneously” rather than after having been
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prearranged, and that it was “primarily fact finding in nature.” Mr. Krueck filed a timely appeal
in which he raises one assignment of error for review.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED WHEN IT GRANTED SUMMARY JUDGMENT
TO THE DEFENDANT-APPELLEE.
{¶6} Mr. Krueck argues that the trial court erred by granting summary judgment in
favor of the Village. This Court agrees.
{¶7} This Court reviews an award of summary judgment de novo. Grafton v. Ohio
Edison Co., 77 Ohio St.3d 102, 105 (1996). This Court applies the same standard as the trial
court, viewing the facts in the case in the light most favorable to the non-moving party and
resolving any doubt in favor of the non-moving party. Viock v. Stowe-Woodward Co., 13 Ohio
App.3d 7, 12 (6th Dist.1983).
{¶8} Pursuant to Civ.R. 56(C), summary judgment is proper if:
No genuine issue as to any material fact remains to be litigated; (2) the moving
party is entitled to judgment as a matter of law; and (3) it appears from the
evidence that reasonable minds can come to but one conclusion, and viewing such
evidence most strongly in favor of the party against whom the motion for
summary judgment is made, that conclusion is adverse to that party.
Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977).
{¶9} To prevail on a motion for summary judgment, the party moving for summary
judgment must be able to point to evidentiary materials that show that there is no genuine issue
as to any material fact, and that the moving party is entitled to judgment as a matter of law.
Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996). Once a moving party satisfies its burden of
supporting its motion for summary judgment with sufficient and acceptable evidence pursuant to
Civ.R. 56(C), Civ.R. 56(E) provides that the non-moving party may not rest upon the mere
allegations or denials of the moving party’s pleadings. Rather, the non-moving party has a
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reciprocal burden of responding by setting forth specific facts, demonstrating that a “genuine
triable issue” exists to be litigated for trial. State ex rel. Zimmerman v. Tompkins, 75 Ohio St.3d
447, 449 (1996).
{¶10} It is axiomatic that the non-moving party’s reciprocal burden does not arise until
after the moving party has met its initial evidentiary burden. To do so, the moving party must set
forth evidence of the limited types enumerated in Civ.R. 56(C), specifically, “the pleadings,
depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence,
and written stipulations of fact[.]” Civ.R. 56(C) further provides that “[n]o evidence or
stipulation may be considered except as stated in this rule.”
{¶11} Mr. Krueck first argues that the trial court erred by failing to consider any
evidentiary materials he submitted in opposition to the Village’s motion for summary judgment.
The trial court asserted, however, that it based its decision on a consideration of “the pleadings,
depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in
the pending case, and written stipulations of fact, if any[.]” Accordingly, there is no indication
from the record that the trial court failed to consider all proper Civ.R. 56(C) evidence.
{¶12} Ohio’s Sunshine Law, as enunciated in R.C. 121.22, states in relevant part:
This section shall be liberally construed to require public officials to take official
action and to conduct all deliberations upon official business only in open
meetings unless the subject matter is specifically excepted by law.
***
(C) All meetings of any public body are declared to be public meetings open to
the public at all times. A member of a public body shall be present in person at a
meeting open to the public to be considered present or to vote at the meeting and
for purposes of determining whether a quorum is present at the meeting.
***
(F) Every public body, by rule, shall establish a reasonable method whereby any
person may determine the time and place of all regularly scheduled meetings and
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the time, place, and purpose of all special meetings. A public body shall not hold
a special meeting unless it gives at least twenty-four hours’ advance notice to the
news media that have requested notification, except in the event of an emergency
requiring immediate official action. In the event of an emergency, the member or
members calling the meeting shall notify the news media that have requested
notification immediately of the time, place, and purpose of the meeting.
{¶13} The statute defines “public body” to include a council of any political subdivision.
R.C. 121.22(B)(1)(a). A “meeting” is “any prearranged discussion of the public business of the
public body by a majority of its members.” R.C. 121.22(B)(2); accord State ex rel. Cincinnati
Post v. Cincinnati, 76 Ohio St.3d 540, 543 (1996) (holding that the “elements of the statutory
definition of a meeting are (1) a prearranged discussion, (2) a discussion of the public business of
the public body, and (3) the presence at the discussion of a majority of the members of the public
body.”)
{¶14} This Court has recognized that a public body violates the Sunshine Law where it
simultaneously conducts a meeting while deliberating over public business. Berner v. Woods,
9th Dist. No. 07CA009132, 2007-Ohio-6207, ¶ 17, citing Holeski v. Lawrence, 85 Ohio App.3d
824, 829-830 (11th Dist.1993). We have acknowledged, however, that “deliberations”
contemplate more than mere investigation, fact-finding, or information-gathering. Berner at ¶
15, citing Holeski, 85 Ohio App.3d at 829. Specifically, we have stated that “[q]uestion-and-
answer sessions between board members and other persons who are not public officials do not
constitute ‘deliberations’ unless a majority of the board members also entertain a discussion of
public business with one another. In this context, ‘discussion’ entails an ‘exchange of words,
comments or ideas by the board.’ A conclusive decision among board members on any measure,
however, is not necessary to prove a violation.” (Internal citations omitted.) Berner at ¶ 15.
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{¶15} In its motion for summary judgment, the Village did not dispute that a majority of
council members got together with Mayor Watson and Mr. McManus around the time alleged in
the complaint. Instead, it raised the following three arguments in support of its motion.
{¶16} First, the Village argued that no “public body” was involved because all
individual council members had been dismissed as parties to the action. By definition, the
village council constitutes a “public body.” R.C. 121.22(B)(1)(a). Moreover, the Ohio Supreme
Court has recognized that a political subdivision’s council is not sui juris and, therefore, cannot
sue or be sued. State ex rel. Cleveland Municipal Court v. Cleveland City Council, 34 Ohio
St.2d 120, 122 (1973). The high court noted that “[a]n action involving the council should be
brought against the [political subdivision], or against the existing councilmen.” (Emphasis
added.) Id. Because the village council is a public body, and Mr. Krueck properly brought this
action against the Village, there is no evidentiary or legal support for the Village’s first
argument.
{¶17} Second, the Village argued that there was no “meeting” as that term is statutorily
defined because of the spontaneous, rather than prearranged, nature of the coming together of
various council members with the mayor and Mr. McManus. In support, the Village presented
Mr. Krueck’s deposition in which he testified that “the meeting occurred spontaneously,
apparently[.]” However, when village counsel sought clarification of Mr. Krueck’s use of the
term “spontaneously,” Mr. Krueck testified that he in fact did not know how the meeting
occurred. He testified, “[A]ll I know is that the meeting that had been originally set up had been
cancelled and this other meeting occurred and the clerk and myself were not invited to the
meeting.” Mr. Krueck further testified during his deposition that another council member,
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Amanda Anderson, told him that the council president had approached her on the street and
asked her to come to the meeting but that she was unable to do so at the time.
{¶18} Copies of the minutes from seven village council meetings were admitted and
appended to Mr. Krueck’s deposition. The minutes of a regular council meeting held on
September 10, 2007, state that the mayor, council president, “and others” met with Mr.
McManus of Lorain County Community College “to discuss the future of the police dept.”
{¶19} The Ohio Supreme Court, while recognizing the statute’s purpose to prevent
secret deliberations by public bodies on public issues without accountability to the public,
acknowledged that the statute does not prohibit spontaneous or “impromptu hallway meetings
between council members[.]” Cincinnati Post, 76 Ohio St.3d at 544. In this case, the Village
failed to present any evidence that the acknowledged meeting between the mayor, council
members, and Mr. McManus (who would ultimately become the chief of police for the Village)
was merely spontaneous or impromptu in nature. Indeed, the Village’s evidence (Mr. Krueck’s
deposition) demonstrates that council president Meilander approached another council member
on the street and asked her to attend the meeting.
{¶20} Finally, the Village argued that there was no violation of the Sunshine Law
because council members did not engage in “deliberations” at the meeting. The Village argued
that the meeting was solely for the purpose of gathering facts in the early stages of investigating
matters surrounding the status of the village police department. The only evidence of the
substance of the meeting, however, was the statement in the September 10, 2007 regular council
meeting minutes that the mayor and council members met with Mr. McManus “to discuss the
future of the police dept.” which was in disarray after criminal charges were brought against the
police chief and an officer. The Village presented no evidence that this meeting was merely a
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question-and-answer session. Instead, the minutes indicate that the council members present
engaged in an “exchange of words, comments or ideas,” by discussing the future of the village
police department, i.e., public business. See Berner at ¶ 15. This conclusion is bolstered by
additional information in village council minutes subsequent to the challenged meeting regarding
the many issues continuing to arise out of the problems in the police department, e.g., a vote to
accept the police chief’s resignation, a later vote to accept another officer’s resignation, Mr.
McManus’ advice and help in “get[ting] the police dept. up and running,” and the ultimate
designation of Mr. McManus as chief of police. Accordingly, the Village’s evidence
demonstrated that “the future of the police dep[artment]” was an on-going issue for discussion at
council meetings.
{¶21} Based on this Court’s de novo review, we conclude that the Village failed to
present any evidence to demonstrate that a majority of council members had not arranged to
meet for the purpose of deliberating over public business. The Village’s evidence demonstrated
that various council members met privately with a man with whom the Village had been
consulting regarding the status of the village police department and that the group discussed the
future of the police department. That no conclusive decision was reached at that meeting is
immaterial. See Berner at ¶ 15. Moreover, the Village’s evidence appended to its motion for
summary judgment demonstrated that council president actively sought the attendance of a
council member at the meeting prior to its occurrence. Under these circumstances, the Village
failed to meet its initial burden under Dresher to show that no genuine issue of material fact
exists and that it is entitled to judgment as a matter of law. Accordingly, the trial court erred by
granting summary judgment in favor of the Village.
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{¶22} Even were we to conclude that the Village met its initial burden, we would be
compelled to conclude that Mr. Krueck met his reciprocal burden of responding by setting forth
specific facts, demonstrating that a “genuine triable issue” exists to be litigated for trial.
Tompkins, 75 Ohio St.3d at 449.
{¶23} Mr. Krueck appended the answers of five council members and the mayor to his
response. The mayor answered that he notified Robert Meilander (president of council) “about
the meeting in question[.]” Mr. Meilander answered that he called council member Dorothy
Collins by telephone to ask her if she would like to meet Jim McManus from the local college
after the mayor informed him that Mr. McManus was coming to Village Hall. Dorothy Collins
answered that she notified council member Jeanette Leimbach by telephone about the meeting in
question, and Ms. Leimbach’s answer confirmed that she was so notified. Council member
Carol Saccardi answered that either the mayor or the president of council called her. Although
Mr. Meilander answered in the first set of interrogatories served upon him that the meeting in
question did not violate R.C. 121.22 because it was “an informal, fact-finding gathering” with
Mr. McManus, the documents appended to his answer to interrogatories include council minutes
indicating that he and others met with Mr. McManus “to discuss the future of the police dept.,” a
statement which on its face indicates that the meeting may likely have been more than an
informal fact-finding gathering. Accordingly, Mr. Krueck’s evidence too gives rise to genuine
triable issues which precluded the trial court from granting summary judgment in favor of the
Village as a matter of law. Mr. Krueck’s sole assignment of error is sustained.
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III.
{¶24} Mr. Krueck’s assignment of error is sustained. The judgment of the Lorain
County Court of Common Pleas is reversed and the cause remanded for further proceedings
consistent with this opinion.
Judgment reversed,
And cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of
this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellee.
DONNA J. CARR
FOR THE COURT
WHITMORE, J.
MOORE, J.
CONCUR.
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APPEARANCES:
MARGERET O’BRYON, Attorney at Law, for Appellee.
RICHARD A. KRUECK, pro se, Appellant.