State ex rel. Crilley v. Lowellville Bd. of Edn. , 2021 Ohio 3333 ( 2021 )

[Cite as State ex rel. Crilley v. Lowellville Bd. of Edn., 2021-Ohio-3333.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
MAHONING COUNTY
STATE OF OHIO, EX REL. CHRISTOPHER CRILLEY ET AL.,
Plaintiffs-Appellants,
v.
LOWELLVILLE BOARD OF EDUCATION,
Defendant-Appellee.
OPINION AND JUDGMENT ENTRY
Case No. 20 MA 0128
Civil Appeal from the
Court of Common Pleas of Mahoning County, Ohio
Case No. 2020 CV 1363
BEFORE:
David A. D’Apolito, Gene Donofrio, Cheryl L. Waite, Judges.
JUDGMENT:
Moot in part. Reversed and Remanded in part.
Atty. Robert T. McDowall, Jr., 415 Wyndcliff Place, Youngstown, Ohio 44515, for
Plaintiffs-Appellants and
Atty. Thomas C. Holmes, Holmes Legal Services, 34194 Aurora Road, Suite 295,
Solon, Ohio 44139, for Defendant-Appellee.
–2–
Dated: September 17, 2021
D’Apolito, J.
{¶1} Plaintiffs-Appellants Christopher and Gina Crilley appeal the judgment entry
of the Mahoning County Court of Common Pleas following a bench trial. The trial court
found that Defendant-Appellee Lowellville Board of Education violated the Open Meetings
Act, R.C. 121.22 (“OMA”), by failing to provide the requisite statutory notice of a special
meeting of the Board on August 10, 2020. In the judgment entry, the trial court issued an
injunction ordering the Board to “formulate, adopt, and abide by a rule consistent with
R.C. 121.22(F) whereby any person may determine the time and place of all regularly
scheduled meetings,” and awarded a civil forfeiture in the amount of $500.00, plus costs
to Appellants.
{¶2} Despite the trial court’s conclusion that an OMA violation occurred, the trial
court denied Appellants’ request for statutory attorney’s fees and declaratory relief.
Specifically, the trial court declined to invalidate and declare null and void a resolution by
the Board adopting an amended school reopening plan at the special meeting on August
10, 2020. The trial court reasoned that a prior resolution of the Board, which adopted the
Superintendent’s original reopening plan on July 27, 2020, vested complete discretion in
the Superintendent to alter or amend the original reopening plan at any time prior to or
during the 2020-2021 school year.
{¶3} Appellants advance two assignments of error. First, Appellants contend
that the trial court erred in failing to void the Board’s adoption of the amended reopening
plan at the August 10, 2020 meeting. Appellants argue that the trial court erred in
concluding that the original reopening plan vested complete discretion in the
Superintendent to alter or amend the original plan. Assuming arguendo that the
Superintendent was vested with such authority, Appellants argue, in the alternative, that
his decision to alter or amend the original plan outside the boundaries of a properly-
noticed special meeting of the Board constituted a violation of the OMA, although the
foregoing argument was not advanced in the complaint. Appellants further argue that the
July 27, 2020 meeting, in which the Board vested complete discretion in the
Case No. 20 MA 0128
–3–
Superintendent, was conducted in violation of the OMA, despite the fact that no OMA
challenge to the July 27, 2020 special meeting was alleged in the complaint. In their
second assignment of error, Appellants allege that the trial court erred when it failed to
articulate any rationale to support the decision to deny attorney’s fees to Appellants.
{¶4} For the following reasons, we find that the appeal of the trial court’s refusal
to void the Board’s adoption of the amended school reopening plan for the 2020-2021
school year at the August 10, 2020 special meeting is moot. Further, we reverse the trial
court’s denial of Appellant’s request for attorney’s fees, and remand this matter in order
for the trial court to provide an analysis applying the two-part statutory test in R.C.
121.22(I)(2)(a).
FACTS
{¶5} In March of 2020, Governor Michael DeWine closed public schools in Ohio
in favor of remote learning due to the COVID-19 outbreak. On June 19, 2020, H.B. 164
was enacted and required school districts in Ohio to provide certain plan information to
the Department of Education (“ODE”) should the school district plan to utilize remote
learning during any part of the 2020-2021 school year.
{¶6} The ODE provided guidance to local school boards regarding the
requirements in H.B. 164 in a publication captioned “Planning for Blended or Remote
Learning,” which was admitted into evidence at the bench trial. The final inquiry under
the caption, “Frequently Asked Questions,” reads, in its entirety:
ARE SCHOOLS REQUIRED TO OBTAIN LOCAL SCHOOL BOARD
APPROVAL FOR REOPENING PLANS OR REVISIONS TO REOPENING
PLANS?
Obtaining local school board approval for reopening plans is not a statutory
requirement, although doing so is advisable and would be considered by
the [ODE] to be the best practice.
{¶7} On July 27, 2020, the Board held a special meeting in order to review,
approve, and adopt a comprehensive school reopening plan. Approximately 100 people
Case No. 20 MA 0128
–4–
were in attendance. The presentation of the proposed plan was made almost exclusively
by the Superintendent and he conducted an interactive question-and-answer session with
both the Board and the public.
{¶8} The plan, which was adopted by the Board at the July 27, 2020 special
meeting, included an option for either in-person attendance or remote learning for the
entirety of the rapidly-approaching school year. A deadline of August 10, 2020 was set
for parents to select either the in-school or online modality for their child or children.
{¶9} However, the reopening plan adopted at the July 27, 2020 special meeting
reads, in pertinent part:
This is a working document. Any and all future changes will be made in
accordance to changing health recommendations, state guidelines, or
district needs as determined by Superintendent of Schools. Also, these
guidelines were developed today and knowingly, at any given date and/or
time, let alone four weeks out, an increased outbreak and/or spike in
numbers and/or local infection(s) can change the opening of the 2020-2021
school year. PLEASE, read the plan regularly for changes and feel free to
call the Superintendent * * * if you have any questions.
(Emphasis added).
{¶10} The reopening plan was submitted on an ODE Form, dated July 22, 2020,
and was admitted into evidence. The form language reads, in pertinent part:
NOTE: As the school year proceeds and circumstances evolve, school
districts are able to amend their respective remote learning plans to address
changing needs. District superintendents are able to make amendments to
the remote learning plan on behalf of school districts without any additional
local school board approval. Amended plans, however, must be
resubmitted to ODE by email * * *
{¶11} The Superintendent testified that he decided to amend the reopening plan
due to safety concerns and financial issues. After a conversation with the teachers’ union
Case No. 20 MA 0128
–5–
president, the Superintendent learned that many teachers were at risk and unable to
participate in the in-class modality. Further, as of August 10, 2020, twenty to twenty five
percent of the students had reported that they suffered from underlying health conditions.
{¶12} The Superintendent further testified that he determined the cost to hire
substitute teachers would be overwhelming, in excess of $1,000,000.00, a problem
compounded by the shortage of substitute teachers in Mahoning County, as well as
statewide, for many years. The Superintendent also cited cleaning costs ($1.50 per
square foot for a 100,000 square foot building), in the event of an outbreak.
{¶13} On August 10, 2020, the Board held a special meeting, which the trial court
concluded was conducted in violation of the statutory notice provisions of the OMA. R.C.
121.22(A) reads that the OMA is to 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. R.C. 121.22(F) reads, in
pertinent part, “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 the
time, place, and purpose of all special meetings.”
{¶14} The Board rule concerning public notice of special meetings reads, in
relevant part, “Notice of the time, place and purpose must also be given at least 24 hours
in advance of the meeting to all news media and individuals who have requested such
notice.” Testimony at the trial established that notice was published in the local
newspaper and the agenda for special meetings was posted on the school district’s
website. Further, both the Superintendent and the Treasurer testified that the Board rule
was adopted without revision from a model rule drafted by the Ohio School Board
Association.
{¶15} The notice for the August 10, 2020 special meeting provided to the Tribune
Chronicle reads, in its entirety, “The Lowellville Board of Education will hold a Special
Board Meeting, Monday, August 10, 2020 at 5:30 p.m. in the Cafetorium.” Through no
fault of the Board, the Tribune failed to publish the notice.
{¶16} Further, although testimony established that the agenda for special
meetings is typically posted on the school district’s website, the agenda for the August
10th special meeting included no mention of the amendment to the original reopening
Case No. 20 MA 0128
–6–
plan. As a consequence, the trial court concluded that the Board’s rule and the notice
regarding the August 10, 2020 special meeting violated the OMA.
{¶17} The meeting began at 5:32 p.m. at which time the Board immediately moved
into an executive session, which lasted until 8:06 p.m. The stated purpose of the meeting
was the potential employment of a cafeteria worker. When the Board returned from the
roughly two-and-a-half-hour executive session, four resolutions were enacted in the three
minutes remaining in the meeting, including a unanimous resolution to approve remote
learning as the exclusive modality for the first nine weeks of the 2020-2021 school year,
and to delay the start of online classes to August 31, 2020.
{¶18} The Superintendent issued a press release, immediately following
adjournment of the August 10, 2020 meeting to announce the amendment of the original
reopening plan, which reads, in relevant part:
The Lowellville Board of Education announces that the 2020-2021 school
year will begin “remotely” the first nine weeks on August 31, 2020 (Delayed
one week from August 24th). As such we believe that the best education is
when the teachers and students are face-to-face, we want to get there as
safely and quickly as we can. Unfortunately, with the number of students
and staff members that are at-risk and not planning to return to the school
on August 24th, we were compelled to hedge on the side of caution and
safety for everyone and switch to remote learning which will allow us to
return to face-to-face instruction as soon as it is feasible (emphasis added).
{¶19} The trial court opined:
The “rule” which the Board refers to regarding the manner in which it
provides notice of special meeting actually is silent as to any method or
manner of notifying the general public of the time, place, and purpose of
special meetings. While evidence has been adduced regarding the
practices which the Board ordinarily adopts to provide notice to the public,
the same is subject to uncertainty and inconsistent application which the
legislature intended to avoid in enacting R.C. 121.22. Furthermore, in failing
Case No. 20 MA 0128
–7–
to notify the print media of the purpose of the special meetings, the Board
also acts in derogation of the statute. The Magistrate finds that [Appellants]
have established their right to injunctive relief by clear and convincing
evidence.
In light of the foregoing finding, the special meeting conducted August 10,
2020 was held in violation of the [OMA]. Therefore, under ordinary
circumstances the Magistrate would declare the action of the Board in
“approving” the decision of Superintendent Thomas to adopt remote
learning for the first nine weeks of the school year to be invalid pursuant to
R.C. 121.22(H). However, the analysis does not end there. First, the
“reopening Plan” approved unanimously by the Board on July 27, 2020
vested the Superintendent with the sole, unfettered discretion to adopt a
remote learning plan without any Board approval, whatsoever. Therefore,
any “action” taken by the Board regarding the Superintendent’s decision
was, and remains a nullity without any legal significance at all. Equity will
not permit a court to do a vain and useless thing. The decision of the
Superintendent to adopt a remote learning plan for the first nine weeks of
the school year is a legitimate exercise of this power and will not be
disturbed by the Magistrate.
(10/29/20 J.E., p. 4.)
{¶20} The trial court declined to award attorney’s fees to either party, and,
pursuant to R.C. 121.22(I)(2), awarded statutory damages in the form of civil forfeiture in
the amount of $500.00. This timely appeal followed.
ASSIGNMENT OF ERROR NO. 1
THE TRIAL COURT ERRED BY FAILING TO INVALIDATE THE
SCHOOL’S REOPENING PLAN BECAUSE IT WAS ENACTED AND
IMPLEMENTED IN DEROGATION OF THE OPEN MEETINGS ACT
(OMA).
Case No. 20 MA 0128
–8–
{¶21} The trial court found that Appellant committed a violation of OMA, due to its
failure to comply with the statutory notice requirements prior to the August 10, 2020
special meeting. However, the trial court declined to invalidate the Board’s action at the
August 10, 2020 special meeting, concluding that the adoption by the Board of the
amended plan was merely ceremonial, because the Superintendent could amend or alter
the plan at any time pursuant to the discretion granted to him in the original school
reopening plan. Appellants ask us to review the trial court’s decision regarding the
requested invalidation of the Board’s adoption of the amended school reopening plan,
and corresponding arguments challenging the Superintendent’s unfettered discretion,
despite the fact that any decision rendered here would have no practical effect.
{¶22} The mootness doctrine provides, “ ‘American courts will not decide * * *
cases in which there is no longer any actual controversy.’ ” In re A.G., 139 Ohio St.3d
572, 2014-Ohio-2597, 13 N.E.3d 1146, ¶ 37, citing Black's Law Dictionary 1100 (9th
Ed.2009). “ ‘A moot case is one which seeks to get a judgment on a pretended
controversy, when in reality there is none, or a decision in advance about a right before it
has been actually asserted and contested, or a judgment upon some matter which, when
rendered, for any reason cannot have any practical legal effect upon a then-existing
controversy.’ ” Huntington Natl. Bank v. CPW Properties, Ltd., 7th Dist. Carroll No. 17 CA
0917, 2018-Ohio-1219, ¶ 5, appeal not allowed sub nom. Huntington Natl. Bank v. CPW
Properties, Ltd., 153 Ohio St.3d 1452, 2018-Ohio-3026, 103 N.E.3d 831 (2018), quoting
Culver v. City of Warren, 84 Ohio App. 373, 393, 83 N.E.2d 82, 91 (7th Dist.1948).
{¶23} “However, courts are vested with the jurisdiction to address moot issues
when such issues are capable of repetition yet evade review.” Citizens Word v. Canfield
Twp., 152 Ohio App.3d 252, 2003-Ohio-1604, 787 N.E.2d 104, ¶ 8 (7th Dist.), citing State
ex rel. Plain Dealer Publishing Co. v. Barnes, 38 Ohio St.3d 165, 527 N.E.2d 807 (1988),
paragraph one of the syllabus. “Courts are also vested with jurisdiction to address moot
issues when those issues concern an important public right or a matter of great public or
general interest.” Id., citing In re Appeal of Huffer, 47 Ohio St.3d 12, 14, 546 N.E.2d 1308(1989).
{¶24} Any possible remedy in this case was foreclosed at the conclusion of the
ninth week of the school year. Moreover, the power granted to the Superintendent to
Case No. 20 MA 0128
–9–
amend the original reopening plan, as well as the requirements of the emergency
legislation enacted to govern the reopening of the schools in Ohio for the 2020-2021
school year, terminated at the conclusion of the school year and have no continuing legal
effect. Due to the unique set of facts in this case, we find that Appellants seek an advisory
opinion on a remedy with no practical legal effect, and their first assignment of error is
moot.
ASSIGNMENT OF ERROR NO. 2
THE TRIAL COURT ERRED WHEN IT FAILED TO MAKE AN AWARD
OF ATTORNEY FEES AFTER PLAINTIFFS ESTABLISHED A CLEAR
OPEN MEETING ACT VIOLATION.
{¶25} R.C. 121.22(I) reads, in relevant part:
(1) Any person may bring an action to enforce this section. An action under
division (I)(1) of this section shall be brought within two years after the date
of the alleged violation or threatened violation. Upon proof of a violation or
threatened violation of this section in an action brought by any person, the
court of common pleas shall issue an injunction to compel the members of
the public body to comply with its provisions.
(2)(a) If the court of common pleas issues an injunction pursuant to division
(I)(1) of this section, the court shall order the public body that it enjoins to
pay a civil forfeiture of five hundred dollars to the party that sought the
injunction and shall award to that party all court costs and, subject to
reduction as described in division (I)(2) of this section, reasonable attorney’s
fees. The court, in its discretion, may reduce an award of attorney’s fees to
the party that sought the injunction or not award attorney’s fees to that party
if the court determines both of the following:
(i) That, based on the ordinary application of statutory law and case law as
it existed at the time of violation or threatened violation that was the basis
Case No. 20 MA 0128
– 10 –
of the injunction, a well-informed public body reasonably would believe that
the public body was not violating or threatening to violate this section;
(ii) That a well-informed public body reasonably would believe that the
conduct or threatened conduct that was the basis of the injunction would
serve the public policy that underlies the authority that is asserted as
permitting that conduct or threatened conduct.
Attorney’s fees are mandatory unless the trial court concludes that neither of the prongs
in R.C. 121.22(I)(2)(a) applies.
{¶26} We review a decision regarding attorney’s fees in an OMA case for an
abuse of discretion. State ex rel. Jones v. Dayton Pub. Schools Bd. Of Edn., 2nd Dist.
No. 28637, 2020-Ohio-4931, 160 N.E.3d 777, ¶ 50, cause dismissed sub nom. State ex
rel. Jones v. Dayton Pub. Schools Bd. of Edn., 163 Ohio St.3d 1422, 2021-Ohio-1580,
167 N.E.3d 991, ¶ 50, and appeal not allowed sub nom. State ex rel. Jones v. Dayton
Pub. Schools Bd. of Edn., 163 Ohio St.3d 1422, 2021-Ohio-1580, 167 N.E.3d 991, ¶ 50;
see also Specht v. Finnegan, 149 Ohio App.3d 201, 2002-Ohio-4660, 776 N.E.2d 564,
¶ 42 (6th Dist.); Mathews v. E. Local School Dist., 4th Dist. Pike No. 00CA647, 2001-Ohio-
2372. An abuse of discretion means that the court's attitude is “unreasonable, arbitrary
or unconscionable.” Huffman v. Hair Surgeon, Inc., 19 Ohio St.3d 83, 87, 482 N.E.2d
1248 (1985). “[M]ost instances of abuse of discretion will result in decisions that are simply
unreasonable, rather than decisions that are unconscionable or arbitrary.” Id. Decisions
are unreasonable where no sound reasoning process would support them.” Id.{¶27} The magistrate’s decision merely parrots the statutory language regarding
attorney’s fees and costs, but offers no explanation for the refusal to award attorney’s
fees and costs in this case. Insofar as the trial court parrots the magistrate’s decision into
the judgment entry, the judgment entry likewise contains no rationale for the trial court’s
decision. As a consequence, we find that Appellant’s second assignment of error has
merit as the trial court acted unreasonably in summarily denying attorney’s fees.
Accordingly, this matter is remanded with instructions to the trial court to apply the two-
part statutory test in R.C. 121.22(I)(2)(a).
Case No. 20 MA 0128
– 11 –
CONCLUSION
{¶28} For the foregoing reasons, we find that the above-captioned appeal is moot,
to the extent that it is predicated upon the trial court’s refusal to void the Board’s adoption
of the amended school reopening plan for the 2020-2021 school year. We reverse the
trial court’s decision to deny attorney’s fees and remand the matter in order for the trial
court to apply the two-part statutory test in R.C. 121.22(I)(2)(a).
Donofrio, P.J., concurs.
Waite, J., concurs.
Case No. 20 MA 0128
– 12 –
For the reasons stated in the Opinion rendered herein, we find that the appeal
of the trial court’s refusal to void the Board’s adoption of the amended school reopening
plan for the 2020-2021 school year is moot. We reverse the trial court’s denial of
Appellant’s request for attorney’s fees, and remand this matter to the Court of Common
Pleas of Mahoning County, Ohio, for further proceedings according to law and
consistent with this Court’s Opinion. Costs to be taxed against the Appellee.
A certified copy of this opinion and judgment entry shall constitute the mandate
in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that
a certified copy be sent by the clerk to the trial court to carry this judgment into
execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.
Case No. 20 MA 0128