State Ex Rel. American Civil Liberties Union of Ohio, Inc. v. Cuyahoga County Board of Commissioners ( 2011 )

[Cite as State ex rel. Am. Civ. Liberties Union of Ohio, Inc. v. Cuyahoga Cty. Bd. of Commrs.,
128 Ohio St. 3d 256, 2011-Ohio-625.]
THE STATE EX REL. AMERICAN CIVIL LIBERTIES UNION OF OHIO, INC. v.
CUYAHOGA COUNTY BOARD OF COMMISSIONERS ET AL.
[Cite as State ex rel. Am. Civ. Liberties Union of Ohio, Inc. v. Cuyahoga Cty.
Bd. of Commrs., 128 Ohio St. 3d 256, 2011-Ohio-625.]
Public records — Open meetings — Duty of private entities — Definitions of
“public body,” R.C. 121.22, and “public office,” R.C. 149.011 —
Functional equivalence — Quasi-agency — Prior request for public
records.
(No. 2010-0728 — Submitted January 4, 2011 — Decided February 16, 2011.)
IN MANDAMUS.
__________________
Per Curiam.
{¶ 1} This is an action for a writ of mandamus to compel respondents,
the Cuyahoga County Board of Commissioners and the individual commissioners,
the Cuyahoga County Transition Advisory Group (“TAG”) and its members, and
the Transition Executive Committee (“TEC”) and its members, to provide access
to the records and meeting minutes of TEC and its workgroups pursuant to Ohio’s
Sunshine Laws, R.C. 121.22 and 149.43. Because relator, American Civil
Liberties Union of Ohio, Inc. (“ACLU”), has not established its entitlement to the
requested extraordinary relief, we deny the writ.
Facts
{¶ 2} In November 2009, Cuyahoga County voters adopted a county
charter that replaces the county’s three-member board of commissioners with an
elected county executive and council, changes several county offices from elected
to appointed positions, and reorganizes or eliminates certain departments. The
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charter became effective in January 2010, with the new county government
effective in January 2011.
{¶ 3} Under Section 13.07 of the Cuyahoga County Charter, the board of
county commissioners created TAG, which had a duty to develop
recommendations for the transition to the new county government:
{¶ 4} “The Board of County Commissioners, not later than March 2010,
shall designate three senior administrative officials of the County to act as a
Transition Advisory Group, which shall develop recommendations for the orderly
and efficient transition to the operation of the County government under the
provisions of this Charter and shall work with the newly elected County officials.
The Board of County Commissioners shall provide necessary facilities and
support for the Transition Advisory Group and shall make provision in the budget
of the County for the salaries of the elected officers who are to take office in
January 2011 and for such other matters as shall be necessary and practicable to
provide for the transition. All County officials and employees shall cooperate
with the Transition Advisory Group by providing such information and
documents as the Transition Advisory Group shall request in connection with the
performance of its duties under this section and shall use their best efforts to assist
the newly elected County officials and their designees and representatives in
implementing the transition.”
{¶ 5} Pursuant to this section of the charter, on November 19, 2009, the
Cuyahoga County Board of Commissioners designated James McCafferty, the
county administrator, Gary Holland, the director of the county Department of
Justice Affairs, and Joseph Nanni, the county director of human resources, to act
as the TAG.
{¶ 6} At a Gund Foundation dinner in early December 2009, both
McCafferty and Martin Zanotti, the chairperson of New Cuyahoga Now (“NCN”),
a private entity that had drafted the new charter and guided the campaign for its
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passage, spoke about county-transition issues. Following discussion between
McCafferty and Zanotti, TAG invited NCN and the Greater Cleveland
Partnership1 (“GCP”) to form a comprehensive civic coalition that would
represent and work with all sectors of the community during the transition period
and beyond.
{¶ 7} NCN and GCP accepted the invitation and created a steering
committee, the TEC, to oversee the creation of workgroups as part of the
committee. TEC has eight members, including its cochairpersons, McCafferty and
Zanotti. The workgroups comprise community leaders, county employees, and
private citizens who volunteered to participate in the transition based on their
expertise and interest in the specific subject-matter areas of the workgroups.
Thirteen workgroups were ultimately created: Public Engagement Committee,
County Government Collaboration Committee, Code of Ethics Workgroup,
Finance & Administration Workgroup, Justice Services Workgroup, Human
Services Workgroup, Human Resources Workgroup, Human Capital/Quality
Places Workgroup, Information Technology Workgroup, Procurement & Public
Works Workgroup, Economic Development Workgroup, County Council
Planning Workgroup, and Boards & Commissions Workgroup.
{¶ 8} Under the general transition structure, TEC was to review and
approve recommendations offered by the workgroups and forward approved
recommendations to TAG for review, approval, and submission to the newly
elected county executive and council by November 2010. But TAG is free to
disregard any recommendations made by TEC or the workgroups, and TEC and
the workgroups retain their independent right to present recommendations directly
to the county executive and council notwithstanding TAG’s disapproval.
1
The Greater Cleveland Partnership “is a membership association of Northeast Ohio companies
and organizations and one of the largest metropolitan chambers of commerce in the nation.”
http://www.gcpartnership.com/About-GCP.aspx.
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{¶ 9} Neither the commissioners nor TAG created TEC or the
workgroups, and TAG did not delegate any of its charter-mandated duties to TEC
or the workgroups. TEC receives no guidance or direction from TAG, and
although county employees serve on TEC and various workgroups, they have no
official authority to direct or make decisions on behalf of TEC or any workgroup.
{¶ 10} TAG has received $7,000,000 in funding from the county, but
none of that money has been allocated to TEC or the workgroups. The only
operational assistance provided by the board of commissioners and TAG to TEC
and the workgroups was posting information about TAG, TEC, and the
workgroups on the county website for the transition and providing meeting space
for some of the workgroups. NCN has received money entirely from private
sources to support its efforts. In essence, TEC and the workgroups are
independent of any government entity or process.
{¶ 11} On February 11, 2010, shortly after media reports that McCafferty
and Zanotti had stated that transition workgroups should be able to conduct
business in private, TAG issued a press release entitled “Transition Advisory
Group Committed to Open Meetings,” in which it “reaffirmed the importance of
transparency and openness to the formation of a new county government by
opening all work group meetings to the public.” As announced in the release,
“[m]inutes of the Transition Work Groups and scheduled meeting dates, times and
locations will also be posted on the Cuyahoga County Website.”
{¶ 12} Consistent with the press release, information about meetings of
TAG, TEC, and any committees, subcommittees, or workgroups assembled under
TEC, including the dates, times, locations, and minutes of the meetings, has been
made available to the public through regular postings on the county’s transition
website, http://charter.cuyahogacounty.us/en-US/home.aspx. For example, the
meeting dates, locations, agendas, and minutes for all of TEC’s meetings have
been posted on the website, and the meetings have been open to the public.
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{¶ 13} By letter dated February 17, 2010, relator, American Civil
Liberties Union of Ohio, Inc. (“ACLU”), submitted a request addressed to the
Cuyahoga County Board of Commissioners and County Administrator
McCafferty pursuant to R.C. 149.43 and Section 12.06 of the Cuyahoga County
Charter for certain records relating to the transition to the new county
government, including (1) “[r]ecords of whether any members of the Transition
Advisory Group (‘TAG’), its committees, subcommittees, or workgroups have
completed the public records training that is required for elected officials and their
designees pursuant to Revised Code Section 109.43,” (2) “policies or procedures
(official or unofficial) used in the formation of any committees, subcommittees,
or workgroups established by or under the TAG,” (3) a “list of the names of each
individual/volunteer who is serving or has served on a committee, subcommittee,
or workgroup under the TAG,” (4) “[f]ull copies of minutes to all TAG or
subcommittee meetings that have already been held,” and (5) “[f]ull copies of any
documents or reports created by TAG or any of its subcommittees.”
{¶ 14} A couple of weeks later, the county prosecutor’s office submitted a
response to the ACLU’s records request on behalf of the board and McCafferty.
In the response, the county specified that for the second, fourth, and fifth
categories of requested records, it would provide access to records of TAG, which
it conceded was a public body for purposes of the Sunshine Laws, but it could not
provide access to the records of TEC and the various transition workgroups
because, inter alia, TAG did not create the workgroups, and the workgroups were
“private, unincorporated associations” rather than “public bodies.” The county
stated, “[N]either the [board of county commissioners] nor Mr. McCafferty can
respond * * * to those portions of your letter that are not directed to TAG, but are
instead directed to those various voluntary associations formed by interested
members of the public to provide community input to the TAG.”
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{¶ 15} Further, the county noted that it had no records for the first
category of requested records─public-records training for TAG
members─because they were not elected officials or their designees subject to
R.C. 109.43. As to the third category of requested records─lists of persons
serving on transition committees, subcommittees, or workgroups─the county
stated that although it did not believe they were public records, it would
nevertheless submit the lists to the ACLU. The county provided access to copies
of about 7,000 pages of responsive documents to the ACLU. The county’s
response included all known nonprivileged, responsive public records of the
board and TAG but did not include any records of TEC or its workgroups, which
the board and TAG did not have. On March 8, the ACLU retrieved the records
provided by the county.
{¶ 16} About a month and a half later, on April 27, the ACLU filed this
action for a writ of mandamus to compel respondents, the board of commissioners
and its members, TAG and its members, and TEC and its members, to provide it
with access to the “public records and meeting minutes of the various county
government transition committees and workgroups established by the County to
fulfill its responsibilities under Section 13.07 of the new Cuyahoga County
Charter.” The ACLU requested “a peremptory writ of mandamus directing the
Respondents to make the requested records available for inspection and copying
without further delay” and “a peremptory writ of mandamus directing the
Respondents to prepare, file, and maintain full and accurate minutes and to
conduct all meetings in public.” The board, TAG, and their members filed a
motion to dismiss, and TEC and its members filed an answer and a motion for
judgment on the pleadings. The ACLU filed a motion for leave to file an
amended complaint and a motion to strike the affidavit in the answer. The
ACLU’s amended complaint requested the same relief as its initial complaint.
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{¶ 17} On August 25, 2010, we granted the ACLU’s motion for leave to
file an amended complaint, denied the motions for judgment on the pleadings, to
dismiss, and to strike, and granted an alternative writ. 126 Ohio St. 3d 1541,
2010-Ohio-3855, 932 N.E.2d 337. The parties have submitted evidence and
briefs.
{¶ 18} This cause is now before the court for our consideration of the
merits. In addition, the ACLU has filed a motion for leave to exceed the page
limit for its reply brief, and respondents TEC and its members have filed a motion
to strike certain newspaper articles relied upon by the ACLU in its merit brief.
Legal Analysis
Motion for Leave to Exceed Page Limit
{¶ 19} S.Ct.Prac.R. 6.4(B) provides, “Except in death penalty appeals of
right, the reply brief shall not exceed twenty numbered pages, exclusive of the
table of contents, the table of authorities cited, the certificate of service, and any
appendix.” Excluding the table of contents, table of authorities, and the certificate
of service, the ACLU’s reply brief exceeds the 20-page limit by six pages.
{¶ 20} We have previously granted motions to extend the page limits for
briefs. E.g., Cope v. Metro. Life Ins. Co. (1997), 80 Ohio St. 3d 1402, 684 N.E.2d
335.
{¶ 21} We exercise our discretion here and grant the ACLU’s motion. As
the ACLU notes, it is responding to two sets of respondents’ briefs, which were
35 and 36 pages long, and one of those briefs included a constitutional argument.
Under these circumstances, allowing the ACLU to exceed the 20-page limit by a
few pages is warranted.
Mandamus
{¶ 22} The ACLU requests a writ of mandamus to compel respondents to
prepare, file, and maintain full and accurate minutes of meetings of TEC and its
transition workgroups, conduct all of these meetings in public, and provide access
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to their public records and meeting minutes. To be entitled to the writ, the ACLU
must establish a clear legal right to the requested relief, a corresponding clear
legal duty on the part of respondents, and the lack of an adequate remedy in the
ordinary course of the law. State ex rel. Brown v. Lemmerman, 124 Ohio St. 3d
296, 2010-Ohio-137, 921 N.E.2d 1049, ¶ 9.
Lack of Adequate Remedy in the Ordinary Course of Law
{¶ 23} Mandamus will not issue if the relator has an adequate remedy in
the ordinary course of law. R.C. 2731.05.
{¶ 24} The ACLU bases its entitlement to the requested extraordinary
relief on R.C. 121.22 and 149.43. “Ohio’s ‘Sunshine Laws’ govern public
records and open meetings.” Dream Fields, L.L.C. v. Bogart, 175 Ohio App. 3d
165, 2008-Ohio-152, 885 N.E.2d 978, ¶ 3. For the ACLU’s public-records
mandamus claim, “[m]andamus is the appropriate remedy to compel compliance
with R.C. 149.43, Ohio’s Public Records Act.” State ex rel. Physicians Commt.
for Responsible Medicine v. Ohio State Univ. Bd. of Trustees, 108 Ohio St. 3d 288,
2006-Ohio-903, 843 N.E.2d 174, ¶ 6. Relators in public-records mandamus cases
need not establish the lack of an adequate remedy in the ordinary course of law.
State ex rel. Morgan v. New Lexington, 112 Ohio St. 3d 33, 2006-Ohio-6365, 857
N.E.2d 1208, ¶ 41.
{¶ 25} For the ACLU’s open-meetings mandamus claim, notwithstanding
the county respondents’ contentions to the contrary, the claim is not an ill-
disguised claim for a declaratory judgment and prohibitory injunction, and neither
a declaratory judgment nor a prohibitory injunction would constitute an adequate
remedy in the ordinary course of law. A declaratory judgment would not be an
adequate remedy without a mandatory injunction ordering respondents to prepare,
file, and maintain full and accurate meeting minutes of past closed meetings of
TEC and its workgroups and to compel them to conduct all TEC and workgroup
meetings in public. A mandatory injunction, however, is an extraordinary remedy
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that does not preclude a writ of mandamus. See State ex rel. Ohio Liberty
Council v. Brunner, 125 Ohio St. 3d 315, 2010-Ohio-1845, 928 N.E.2d 410, ¶ 28.
Similarly, R.C. 121.22(I), which affords mandatory injunctive relief by way of a
common pleas court action to enforce the provisions of the Open Meetings Act,
does not prevent a mandamus action. See State ex rel. Fairfield Leader v.
Ricketts (1990), 56 Ohio St. 3d 97, 102, 564 N.E.2d 486. And a prohibitory
injunction would not provide the ACLU with the relief it requests: an order to
compel respondents to comply with R.C. 121.22 by preparing, filing, and
maintaining full and accurate meeting minutes and to hold all of the TEC and
workgroup meetings in public. Ohio Liberty Council at ¶ 28.
{¶ 26} Therefore, the ACLU’s amended complaint properly invokes our
original jurisdiction, and a common pleas court action for a declaratory judgment
and either a mandatory or a prohibitory injunction would not provide an adequate
remedy in the ordinary course of law so as to preclude its mandamus claims.
Clear Legal Right and Clear Legal Duty: Prospective Mandamus Relief
{¶ 27} In its amended complaint, the ACLU has requested “a peremptory
writ of mandamus directing the Respondents to prepare, file, and maintain full
and accurate minutes and to conduct all meetings in public.” Insofar as the
ACLU’s request for relief could be construed as requesting a writ of mandamus to
compel compliance with R.C. 121.22 by respondents in the future, they are not
entitled to this relief. A “writ of mandamus will not issue to compel the general
observance of laws in the future.” State ex rel. Kirk v. Burcham (1998), 82 Ohio
St.3d 407, 409, 696 N.E.2d 582.
{¶ 28} Moreover, the evidence establishes that TEC and the transition
workgroups are complying with R.C. 121.22 by conducting open meetings and
preparing and providing minutes of the meetings. “Mandamus will not compel
the performance of an act that has already been performed.” State ex rel. Dehler
v. Kelly, 123 Ohio St. 3d 297, 2009-Ohio-5259, 915 N.E.2d 1223, ¶ 1.
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{¶ 29} For the ACLU’s claim for copies of minutes of past TEC and
workgroup meetings that were closed to the public, the Open Meetings Act, “R.C.
121.22, requires the preparation, filing, and maintenance of a public body’s
minutes. * * * Once these minutes are prepared, Ohio’s Public Records Act, R.C.
149.43, requires the public body to permit public access to the minutes upon
request.” State ex rel. Citizens for Open, Responsive & Accountable Govt. v.
Register, 116 Ohio St. 3d 88, 2007-Ohio-5542, 876 N.E.2d 913, ¶ 27.
{¶ 30} Nevertheless, the ACLU’s evidence that TEC and the workgroups
held private meetings in the past is based on a solitary February 10, 2010
Cleveland Scene newspaper article in which it was reported that McCafferty said
that “committees have already started working behind closed doors.” By contrast,
respondents’ evidence is supported by affidavits establishing that TEC meetings
have been open to the public and that information, including meeting minutes, for
TEC and the workgroups, has been made available to the public through regular
postings on the county’s website. The single newspaper article does not satisfy
the ACLU’s burden to establish its entitlement to the preparation and provision of
the requested minutes. See State ex rel. Colvin v. Brunner, 120 Ohio St. 3d 110,
2008-Ohio-5041, 896 N.E.2d 979, ¶ 59 (court need not consider two newspaper
articles as evidence in mandamus case); State ex rel. Miller v. Cuyahoga Cty. Bd.
of Elections, 103 Ohio St. 3d 477, 2004-Ohio-5532, 817 N.E.2d 1, ¶ 15, quoting
State ex rel. Flagner v. Arko (Feb. 5, 1998), Cuyahoga App. Nos. 72779 and
87263, 1998 WL 45342, *3, quoting Heyman v. Bellevue (1951), 91 Ohio App.
321, 326, 48 Ohio Op. 404, 108 N.E.2d 161 (“newspaper article ‘cannot be accepted
as [summary-judgment] evidence; it is “hearsay of the remotest character” ’ ”);
State ex rel. Boccuzzi v. Cuyahoga Cty. Bd. of Commrs., 112 Ohio St. 3d 438,
2007-Ohio-323, 860 N.E.2d 749, ¶ 20 (newspaper article rejected as evidence in
mandamus case). This conclusion renders moot respondents TEC and its
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members’ motion to strike this and another newspaper article from the ACLU’s
evidence.
{¶ 31} Therefore, the ACLU has established neither a clear legal right to a
writ of mandamus directing respondents to prepare, file, and maintain full and
accurate minutes and to conduct all meetings in public nor a corresponding clear
legal duty on the part of respondents to do so.
Clear Legal Right and Clear Legal Duty: Public-Records Claim
{¶ 32} The ACLU also claims entitlement to a writ of mandamus to
compel respondents to provide access to the public records of TEC and the
transition workgroups.
Prior Request for Records
{¶ 33} The respondents initially assert that the ACLU is not entitled to the
requested records because “R.C. 149.43(C) requires a prior request as a
prerequisite to a mandamus action.” State ex rel. Taxpayers Coalition v.
Lakewood (1999), 86 Ohio St. 3d 385, 390, 715 N.E.2d 179.
{¶ 34} Notwithstanding respondents’ assertion to the contrary, if─as the
ACLU alleges─TEC and its subordinate workgroups are merely committees or
subcommittees of TAG and the board of commissioners, serving the records
request on the board of commissioners and County Administrator McCafferty,
who is also a member of TAG and a cochairperson of TEC, would constitute a
sufficient records request. Notably, the county’s response to the ACLU’s request
reasoned that the request was proper to the extent that it sought TAG records
because McCafferty is a member of TAG, even though he was not named as a
TAG member in the records request. Similarly, although McCafferty was not
named as a TEC cochairperson and member in the ACLU’s request, the county’s
rationale would also support the sufficiency of the request for records of TEC and
its workgroups. This result is consistent with our duties to “construe the Public
Records Act liberally in favor of broad access and resolve any doubt in favor of
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disclosure of public records.” State ex rel. Rocker v. Guernsey Cty. Sheriff’s
Office, 126 Ohio St. 3d 224, 2010-Ohio-3288, 932 N.E.2d 327, ¶ 6. Therefore, the
ACLU’s public-records mandamus claim does not lack merit due to an improper
records request.
Public Body Under R.C. 121.22
{¶ 35} The ACLU next asserts that it is entitled to the requested writ of
mandamus because R.C. 121.22 and 149.43 relate to the same subject matter and
must be construed in pari materia so that if TEC and the transition workgroups
meet the definition of “public body” and are subject to the Open Meetings Act,
each necessarily satisfies the definition of “public office” and is subject to the
Public Records Act as well.
{¶ 36} As noted previously, the court has recognized that R.C. 121.22 and
149.43 are construed in pari materia for purposes of maintaining a record of the
proceedings of public bodies and making minutes of those proceedings available
to the public. See, e.g., State ex rel. Long v. Cardington Village Council (2001),
92 Ohio St. 3d 54, 56, 748 N.E.2d 58 (“Construing R.C. 121.22, 149.43, and
733.27 in pari materia, respondents, * * * [including] the village clerk * * *, have
a duty to prepare, file, and maintain full and accurate minutes for council
meetings, and to make them available for public inspection”); White v. Clinton
Cty. Bd. of Commrs. (1996), 76 Ohio St. 3d 416, 667 N.E.2d 1223, paragraph one
of the syllabus (“R.C. 121.22, 149.43, and 305.10, when read together, impose a
duty on all boards of county commissioners to maintain a full and accurate record
of their proceedings”).
{¶ 37} R.C. 121.22 and 149.43 are also arguably incorporated by
reference in the applicable provisions of the Cuyahoga County Charter regarding
open meetings and public records. See Cuyahoga County Charter, Sections 12.05
(“All meetings of the Council and any committee, board, commission, agency or
authority of the County, as well as any similar body created by this Charter or by
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the Council, shall be open to the public as provided by general law”) and 12.06
(“Records of the County shall be open to the public as provided by general law”).
{¶ 38} Nevertheless, we have never expressly held that once an entity
qualifies as a public body for purposes of R.C. 121.22, it is also a public office for
purposes of R.C. 149.011(A) and 149.43 so as to make all of its nonexempt
records subject to disclosure. In fact, R.C. 121.22 suggests otherwise because it
contains separate definitions for “public body,” R.C. 121.22(B)(1), and “public
office,” R.C. 121.22(B)(4), which provides that “ ‘[p]ublic office’ has the same
meaning as in section 149.011 of the Revised Code.” Had the General Assembly
intended that a “public body” for purposes of R.C. 121.22 be considered a “public
office” for purposes of R.C. 149.011(A) and 149.43, it would have so provided.
{¶ 39} R.C. 121.22(B)(1) defines a “public body” subject to the Open
Meetings Act to include the following:
{¶ 40} “(a) Any board, commission, committee, council, or similar
decision-making body of a state agency, institution, or authority, and any
legislative authority or board, commission, committee, council, agency, authority,
or similar decision-making body of any county, township, municipal corporation,
school district, or other political subdivision or local public institution.
{¶ 41} “(b) Any committee or subcommittee of a body described in
division (B)(1)(a) of this section.”
{¶ 42} The parties agree that TAG, which was created by Section 13.07 of
the Cuyahoga County Charter as a decision-making body of the county, is a
public body. At issue is whether TEC and the transition workgroups are also
public bodies for purposes of R.C. 121.22. If TEC and the workgroups are
committees or subcommittees of TAG, they are public bodies pursuant to R.C.
121.22(B)(1)(b).
{¶ 43} In construing this statute, “our obligation is to ascertain and give
effect to the intent of the legislature as expressed in the statute.” Hudson v.
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Petrosurance, Inc., 127 Ohio St. 3d 54, 2010-Ohio-4505, 936 N.E.2d 481, ¶ 30.
“[W]e determine the legislative intent by reading words and phrases in context
and construing them in accordance with rules of grammar and common usage.”
State ex rel. Shisler v. Ohio Pub. Emps. Retirement Sys., 122 Ohio St. 3d 148,
2009-Ohio-2522, 909 N.E.2d 610, ¶ 18. A “committee” is a “subordinate group
to which a deliberative assembly or other organization refers business for
consideration, investigation, oversight, or action,” Black’s Law Dictionary (9th
Ed.2009) 309, or “a body of persons delegated to consider, investigate, or take
action upon and usu. to report concerning some matter or business,” Webster’s
Third New International Dictionary (1986) 458. See Berner v. Woods, Lorain
App. No. 07CA009132, 2007-Ohio-6207, ¶ 14 (the court applies a comparable
dictionary definition to “committee” to hold that a “community block grant
committee” was a “public body” pursuant to R.C. 121.22(B)(1)).
{¶ 44} Respondents’ evidence establishes that TEC and the transition
workgroups do not fit within the definition of “committee” of TAG so as to be a
public body as defined in R.C. 121.22(B)(1). Neither the board of commissioners
nor TAG referred or delegated business to TEC and the workgroups. Instead, two
private entities, NCN and GCP, created TEC to oversee the creation of
workgroups assembled under it. TAG did not delegate any of its charter-
mandated duties to TEC and the workgroups and does not direct them. Although
the ACLU cites some language in e-mails between individual TAG members and
on the county website that suggests some assistance in providing the structure of
the first workgroups, there is no indication that TAG as an entity acted to delegate
to TEC and the workgroups its primary charter duty to “develop
recommendations for the orderly and efficient transition to the operation of
County government” under Section 13.07 of the charter. At best, the creation of
TEC and the workgroups by NCN and GCP, at the invitation of the county,
merely recognized the longstanding and important rights of private citizens to
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“petition the Government” pursuant to the First Amendment to the United States
Constitution and to “alter, reform, or abolish” government “whenever they may
deem it necessary.” Section 2, Article I, Ohio Constitution.
{¶ 45} The cases cited by the ACLU in support of its mandamus claims
are inapposite because in those cases, the evidence was uncontroverted that the
entity held to constitute a public body for purposes of the Open Meetings Act had
been established or designated by some governmental entity. Berner, 2007-Ohio-
6207 (community-block-grant committee created by township board); Wheeling
Corp. v. Columbus & Ohio River RR. Co. (2001), 147 Ohio App. 3d 460, 771
N.E.2d 263 (selection committee established by Ohio Rail Development
Commission to evaluate and score proposals to operate state-owned rail line);
Cincinnati Enquirer v. Cincinnati (2001), 145 Ohio App. 3d 335, 762 N.E.2d 1057
(urban-design-review board created by city council); Stegall v. Joint. Twp. Dist.
Mem. Hosp. (1985), 20 Ohio App. 3d 100, 20 OBR 122, 484 N.E.2d 1381 (board
of hospital governors established under R.C. 513.07 by townships); Toledo Blade,
61 Ohio Misc.2d 631, 582 N.E.2d 59 (community-action agency designated by
Ohio Department of Development). No comparable evidence is apparent here.
Functional Equivalent of a Public Office
{¶ 46} For purposes of the Public Records Act, a public office subject to
the act “includes any state agency, public institution, political subdivision, or any
other organized body, office, agency, institution, or entity established by the laws
of this state for the exercise of any function of government.” R.C. 149.011(A).
As a secondary matter, the ACLU argues that if the TEC and the workgroups are
private entities, each is the functional equivalent of a public office and is subject
to R.C. 149.43.
{¶ 47} Prior to 2006, we used different tests to determine whether a
private entity was a public office subject to the Public Records Act. See, e.g.,
State ex rel. Fox v. Cuyahoga Cty. Hosp. Sys. (1988), 39 Ohio St. 3d 108, 529
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N.E.2d 443, paragraph one of the syllabus; State ex rel. Freedom
Communications, Inc. v. Elida Community Fire Co. (1988), 82 Ohio St. 3d 578,
579, 697 N.E.2d 210.
{¶ 48} In State ex rel. Oriana House, Inc. v. Montgomery, 110 Ohio St. 3d
456, 2006-Ohio-4854, 854 N.E.2d 193, at the syllabus, however, we modified the
test for determining a private entity’s status as a public institution under R.C.
149.011(A) by holding:
{¶ 49} “1. Private entities are not subject to the Public Records Act
absent a showing by clear and convincing evidence that the private entity is the
functional equivalent of a public office.
{¶ 50} “2. In determining whether a private entity is a public institution
under R.C. 149.011(A) and thus a public office for purposes of the Public Records
Act, R.C. 149.43, a court shall apply the functional-equivalency test. Under this
test, the court must analyze all pertinent factors, including (1) whether the entity
performs a governmental function, (2) the level of government funding, (3) the
extent of government involvement or regulation, and (4) whether the entity was
created by the government or to avoid the requirements of the Public Records
Act.”
{¶ 51} The ACLU has not established by the requisite clear and
convincing evidence that TEC and its subordinate workgroups are the functional
equivalent of public offices for purposes of the Public Records Act. They are
instead private groups comprising county leaders, county staff, and citizens; they
are not performing TAG’s charter-mandated duties but are instead submitting
recommendations to TAG and the county in their capacities as coalitions of
private citizens; they do not receive any funds or significant support from the
county; they receive no guidance or direction from TAG or any other
governmental agency and were not created by TAG or the county or to
circumvent the requirements of R.C. 149.43. Therefore, the ACLU’s functional-
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January Term, 2011
equivalence argument fails for lack of proof. See Oriana House at the syllabus;
State ex rel. Repository v. Nova Behavioral Health, Inc., 112 Ohio St. 3d 338,
2006-Ohio-6713, 859 N.E.2d 936.
Quasi-agency Theory
{¶ 52} The ACLU finally argues that it is entitled to the public records of
TEC and the transition workgroups based on the court’s quasi-agency theory
espoused in State ex rel. Mazzaro v. Ferguson (1990), 49 Ohio St. 3d 37, 550
N.E.2d 464.
{¶ 53} “R.C. 149.43(C) manifests an intent to afford access to public
records, even when a private entity is responsible for the records.” Id. at 39.
Therefore, “where (1) a private entity prepares records in order to carry out a
public office’s responsibilities, (2) the public office is able to monitor the private
entity’s performance, and (3) the public office has access to the records for this
purpose, a relator in an R.C. 149.43(C) mandamus action is entitled to relief
regardless of whether he also shows that the private entity is acting as the public
office’s agent.” Id.
{¶ 54} The ACLU has not established that TEC and the workgroups
carried out TAG’s duty to provide transition recommendations to the county
executive and county council, that TAG is able to monitor TEC’s and the
workgroups’ performance, or that TAG has access to all of TEC’s and the
workgroups’ records so that it could monitor them. Instead, it appears that TAG
would have access only to the recommendations and records that TEC and the
workgroups, within their discretion, submitted to it at the conclusion of their
review process. TEC and the workgroups thus have no duty to provide TAG or
the county with access to any of their records.
Conclusion
{¶ 55} The ACLU has not established its entitlement to the requested
extraordinary relief in mandamus for its open-meetings and public-records
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SUPREME COURT OF OHIO
mandamus claims. The ACLU has failed to meet its burden of proving a clear
legal right to the requested relief or a corresponding clear legal duty on the part of
the respondents to provide it. Therefore, we deny the writ. Based on this holding,
we need not address the claim of TEC and its members that holding them subject
to the Sunshine Laws would violate their First Amendment rights to freedom of
speech and association. See State ex rel. Miller v. Brady, 123 Ohio St. 3d 255,
2009-Ohio-4942, 915 N.E.2d 1183, ¶ 11 (court need not address constitutional
claims if it is not “absolutely necessary” to do so).
Writ denied.
O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL,
LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.
__________________
Carrie L. Davis, Staff Counsel, James L. Hardiman, Legal Director, and
Melvyn Durchslag, Michael T. Honohan, and Brian J. Laliberte, Cooperating
Counsel, for relator.
William D. Mason, Cuyahoga County Prosecuting Attorney, and David G.
Lambert and Charles E. Hannan, Assistant Prosecuting Attorneys, for respondents
Cuyahoga County Board of Commissioners and the individual commissioners and
Cuyahoga County Transition Advisory Group and its members.
Thompson Hine, L.L.P., Steven S. Kaufman, Kip T. Bollin, Gary L.
Walters, Lorraine Evelyn Gaulding, and Barbara A. Lum, for respondents
Cuyahoga County Transition Executive Committee and its members.
______________________
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