State ex rel. Util. Supervisors Employees' Assn. v. Cleveland

[Cite as State ex rel. Util. Supervisors Employees' Assn. v. Cleveland, 2023-Ohio-463.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE EX REL. UTILITIES :
SUPERVISORS EMPLOYEES’ ASSN.,
:
Relator, No. 111723
:
v.
:
CITY OF CLEVELAND,
:
Respondent.
JOURNAL ENTRY AND OPINION
JUDGMENT: WRIT DENIED
DATED: February 15, 2023
Writ of Mandamus
Motion No. 559456
Order No. 561628
Appearances:
Gertsburg Licata Co., LPA, Stewart D. Roll, and Oliver S.
Thomas, for relator.
Mark D. Griffin, Cleveland Director of Law, and Amy K.
Hough, Assistant Director of Law, for respondent.
MICHELLE J. SHEEHAN, J.:
Relator, Utilities Supervisors Employees’ Association (“USEA”),
seeks a writ of mandamus directing respondent, the city of Cleveland, to fulfill two
public records requests it transmitted via email on February 9, 2022. USEA claims
that the city has failed to satisfy this request. We grant the city’s motion for
summary judgment for the reasons that follow, find the request for writ of
mandamus moot, and deny USEA’s request for statutory damages, costs, and
attorney fees.
I. Background
According to USEA’s complaint, filed July 11, 2022,1 it represents
approximately 120 employees within the city’s Department of Public Works as a
result of an election held May 11, 2021. On February 9, 2022, USEA sent an email
to Mark Webber, an alleged city employee, requesting the following:
1. All agreements, proposed, unsigned, signed, executory, and either
failed or completed between the City of Cleveland and any contractor
for water and sewer related work within the last five years, including
but not limited to the following contractors: Fabrizi, Homes On-
Demand, Tri-Mor, Perk, Terrace, Allege, 216-214-3227, Digioa,
Progressive Site Work, and Fechko.
2. All City of Cleveland job descriptions for the positions identified in
Article 2 of the Collective Bargaining Agreement (“CBA”) between the
City of Cleveland and the International Union of Operating Engineers,
Local 10, effective April 1, 2019, through March 31, 2022. See attached
CBA.2
USEA’s representative received a response on February 15, 2022,
indicating that Mr. Webber forwarded the request to a city department to process
1 Along with the complaint, USEA sought an alternative writ, which was denied by
this court on September 26, 2022.
2 The complaint alleges that the International Union of Operating Engineers, Local
10, represented USEA’s 120 members employed by the city in the Department of Public
Works prior to the May 2021 election.
the public records requests. The same day, USEA received a reference number
assigned to the request for tracking purposes. The complaint alleges that as of the
time of its filing, the city failed to produce records responsive to the request.
After unsuccessful mediation and a continuance to the briefing
schedule requested by the city, the city filed an answer and motion for summary
judgment on November 4, 2022. There, it alleged that it had produced some 2,700
pages of records to USEA shortly after the present action was filed. The motion for
summary judgment stated that the city had fulfilled the request. It also argued that
the request was overly broad. However, the city attached a single affidavit to the
summary judgment motion that only averred, in essence, that a public records
custodian made unspecified records electronically available to USEA’s
representative on July 15, 2022. USEA did not file a brief in opposition to the motion
for summary judgment. After the time for USEA’s response passed, this court issued
an order requiring the city to certify by way of affidavit the claims asserted in the
motion for summary judgment. On December 30, 2022, the city filed a certification
with a sworn affidavit. There, a city attorney averred that on July 15, 2022, the city
produced the following documents to USEA’s representative:
Contract with Terrace Construction Co. dated April 25, 2019, for
2018-C Water Main Renewal.
Contract with Ward and Burke Tunneling Inc. dated March 20, 2019,
for E. 185 St. and Marcella Road Relief Sewer project.
Contract with Fabrizi Recycling Inc. dated May 8, 2018, for 2018-B
Water Main Renewal.
Contract with Vallejo Company dated August 24, 2017, for E 115th
Street sewer project.
Contract with KMU Trucking dated July 25, 2019, for E 37th St. Pump
Station, et. al.
Contract with Terrace Construction dated May 11, 2017, for 2017-A
Water Main Renewal. Corp.
Contract with AAA Flexible Pipe Cleaning Corp. dated March 20, 2019,
for sewer test tee inspection, installation and snaking.
Contract with Terrace construction company dated August 24, 2017,
for E. 186 Street and Glendale sewer project.
Contract with KMU Trucking & Excavating, LLC dated August 14, 2017,
for Thrush Ave. sewer replacement project.
Contract with Terrace Construction dated October 11, 2017, for repair
of water mains, hydrants, valves, service connections and
appurtenances in Area C.
Contract with the Vallejo Company dated August 24, 2017, for the
W. 123rd St. sewer project.
Contract with Terrace Construction dated January 23, 2019, for E. 85th
St. and Chester Parkway area sewer project.
Contract with Terrace Construction dated December 5, 2018, for large
valve renewal replacement, phase II.
Contract with AAA Flexible Pipe Cleaning dated January 23, 2018, for
one year of sewer test tee inspection, installation and snaking.
Contract with United Survey, Inc. dated December 9, 2017, for
rehabilitating and realigning sewers at various locations.
Contract with Perk Company, Inc. dated December 9, 2021, for
constructing and installing replacement sewers and repairing and
rehabilitating existing sewers.
Contract with Fabrizi Recycling, Inc. dated May 31, 2017, for Rocky
River Drive sewer project.
Contract with Terrace Construction dated August 23, 2019, to repair
water mains, fire hydrants, valves, service connections and
appurtenances in Area D.
Contract with Fabrizi Recycling, Inc. dated May 31, 2017, for Rockport
Ave. sewer replacement project.
Contract with Terrace Construction dated April 10, 2018, for
constructing and repairing catch basins and manholes at various
locations citywide.
Contract with Terrace Construction dated December 5, 2018, for the W.
3rd St. incinerator force main replacement project.
Contract with Terrace Construction dated August 10, 2017, for Elgin
Avenue sewer replacement project.
Contract with Fabrizi Recycling Inc. dated April 25, 2019, for 2019-B
water main renewal.
Contract with Sona Construction LLC dated April 25, 2016, for WPC
building improvements phase II garage ventilation and Windows
project.
Contract with Terrace Construction dated November 30, 2018, for the
State Road water main renewal.
Contract with United survey, Inc. dated September 28, 2021,
rehabilitating and realigning sewers at various locations citywide.
Contract with Perk Company dated July 29, 2020, for constructing and
repairing catch basins and manholes at various locations citywide.
Contract with Terrace Construction dated March 23, 2018, for 2018-A
water main renewal.
Contract with United Survey, Inc. dated August 23, 2019, for
rehabilitating and realigning sewers at various locations citywide.
Contract with perk company dated October 9, 2019, for constructing
and installing replacement sewers and repairing and rehabilitation of
existing sewers in various locations citywide.
Contract with Sona Construction dated July 5, 2019, for WPC
pavement and drainage improvement project phase II.
Contract with Terrace Construction dated December 5, 2018, for the
Almira Avenue sewer project.
Contract with Fabrizi Trucking and Paving Company dated May 20,
2021, for 2021-C water main renewal.
Contract with Terrace Construction dated August 23, 2019, to repair
water mains, fire hydrants, veils, service connections and
appurtenances in Area D.
Contract with Fabrizi Recycling, Inc. dated December 7, 2018, for
Memphis Avenue sewer replacement project.
Contract with perk company dated October 9, 2019, for constructing
and installing replacement sewers and repairing and rehabilitation of
existing sewers citywide.
Contract with Terrace Construction dated May 31, 2018, for
rehabilitation and repairing of sewer connections at various locations
citywide.
Contract with Terrace Construction dated June 20, 2017, for W. 83rd
St. sewer replacement project. Contract with Terrace Construction [sic]
Contract with Terrace Construction dated September 28, 2017, for
constructing and installing replacement sewers and rehabilitation of
existing sewers citywide.
Contract with the Fabrizi Recycling, Inc. dated December 7, 2018, for
the Henninger Road sewer replacement project.
Contract with North Electric, Inc. dated February 7, 2019, for the WPC
pump station generator project.
Contract with Terrace Construction dated July 15, 2020, for the 2020-
B water main renewal and sewer replacement.
Contract with Terrace Construction dated August 24, 2021, to repair
water mains, fire hydrants, veils, service connections and
appurtenances in Area A.
Contract with Sona Construction dated April 23, 2018, for WPC
pavement and drainage improvement project phase I.
Contract with perk company dated February 15, 2018, for the Home
Court water main renewal.
Contract with AAA Flexible Pipe Cleaning dated July 22, 2020, sewer
test tee inspection, installation and snaking.
Contract with Terrace Construction dated July 15, 2020, for 2020-B
water main renewal and sewer replacement.
Contract with Perk company dated October 28, 2020, for Muriel Ave.
sewer project.
Contract with Terrace Construction dated February 16, 2020, for E.
103rd St. and Colonial Avenue sewer project.
Contract with Terrace Construction dated May 11, 2017, for 2017-B
water main renewal.
A Spreadsheet with the title, job description and union code for each
job requested. Two job titles are clearly identified as abolished and
contain no job description.
Affidavit of Amy K. Hough, filed December 30, 2022. The affiant also averred that
the city produced
every document attached to the above referenced contracts including,
but not limited to, the bid, bid addendums, purchase orders,
specifications, authorizing ordinance[,] Board of Control resolution,
public improvement bond, City of Cleveland treasury certification, City
of Cleveland Office of Equal Opportunity evaluation, IRS Form W-9, all
prevailing wage notifications, and Bureau of Workers’ Compensation
certificates.
Id.In all, the affidavit evidences that the city produced 2,705 pages of
documents to USEA. The affidavit also stated that the city had produced all
documents in its possession responsive to the records request.
In response, USEA filed an affidavit from its attorneys claiming that
the city only produced contracts and documents from capitally funded projects and
not daily maintenance and repair work. The attorney attached printouts from a
program purportedly used by the city to track water and sewer projects that indicate
Terrace Construction and Noce/Amroc Construction assisted with repair or
maintenance on six instances that it claims are not encompassed by the records the
city produced.
II. Law and Analysis
A. Applicable Standards
A writ of mandamus is the appropriate means of forcing compliance
with Ohio’s Public Records Act, R.C. 149.43. R.C. 149.43(C)(1)(b); State ex rel.
Rogers v. Dept. of Rehab. & Corr., 155 Ohio St.3d 545, 2018-Ohio-5111, 122 N.E.3d
1208, ¶ 5. A writ will issue when relators show by clear and convincing evidence that
they have a clear legal right to the requested records and respondent has a clear legal
duty to provide them. State ex rel. Bey v. Byrd, 167 Ohio St.3d 358, 2022-Ohio-476,
192 N.E.3d 466, ¶ 9, citing State ex rel. Cincinnati Enquirer v. Sage, 142 Ohio St.3d
392, 2015-Ohio-974, 31 N.E.3d 616, ¶ 10. “[T]he Public Records Act ‘is construed
liberally in favor of broad access, and any doubt is resolved in favor of disclosure
of public records.’” State ex rel. Ware v. Wine, Slip Opinion No. 2022-Ohio-4472,
¶ 8, quoting State ex rel. Cincinnati Enquirer v. Hamilton Cty., 75 Ohio St.3d 374,
376, 662 N.E.2d 334 (1996).
The action is before the court on summary judgment. Pursuant to
Civ.R. 56(C),
[s]ummary judgment shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, written admissions, affidavits,
transcripts of evidence, and written stipulations of fact, if any, timely
filed in the action, 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. No evidence or stipulation may be considered except as stated in
this rule. A summary judgment shall not be rendered unless it appears
from the evidence or stipulation, and only from the evidence or
stipulation, that reasonable minds can come to but one conclusion and
that conclusion is adverse to the party against whom the motion for
summary judgment is made, that party being entitled to have the
evidence or stipulation construed most strongly in the party’s favor.
“Because granting summary judgment under Civ.R. 56(C) terminates litigation
without a trial on the merits, ‘[t]he requirements of the rule must be strictly
enforced.’” State ex rel. Parker v. Russo, 158 Ohio St.3d 123, 2019-Ohio-4420, 140
N.E.3d 602, ¶ 10, quoting Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 360, 604
N.E.2d 138 (1992). As a result, a court may not consider other forms of evidence
except those specified by Civ.R. 56(C). Id., citing State ex rel. Boggs v. Springfield
Local School Dist. Bd. of Edn., 72 Ohio St.3d 94, 97, 647 N.E.2d 788 (1995); Rogoff
v. King, 91 Ohio App.3d 438, 446, 632 N.E.2d 977 (8th Dist.1993).
“The Public Records Act requires a public office to make copies of
public records available to any person on request, within a reasonable period.” State
ex rel. Ware v. Kurt, Slip Opinion No. 2022-Ohio-1627, ¶ 11, citing
R.C. 149.43(B)(1). Reasonableness is something that is dependent on numerous
factors that must be analyzed in each case. State ex rel. Cincinnati Enquirer v.
Deters, 148 Ohio St.3d 595, 2016-Ohio-8195, 71 N.E.3d 1076, ¶ 23.
B. Mootness — Fulfillment of the Records Requests
Generally, producing requested records renders a public records
action moot. State ex rel. Cincinnati Enquirer v. Ohio Dept. of Pub. Safety, 148
Ohio St.3d 433, 2016-Ohio-7987, 71 N.E.3d 258, ¶ 29; State ex rel. Toledo Blade Co.
v. Seneca Cty. Bd. of Commrs., 120 Ohio St.3d 372, 2008-Ohio-6253, 899 N.E.2d
961, ¶ 43. The city has averred in a sworn statement that it has fully complied with
the public records requests made by USEA by producing over 2,700 pages of
documents responsive to USEA’s two records requests.3
The city has alleged that the claim for mandamus in this case is moot.
This triggers USEA’s reciprocal burden to show a genuine issue of material fact that
its claim for mandamus is not moot. USEA has not provided evidence to the contrary
to create a material question of fact on this point. In fact, USEA did not respond to
the city’s motion for summary judgment at all.4 Therefore, we find that the request
for writ of mandamus is moot in light of the city’s production of the records in its
possession responsive to the request.
3 USEA did not make any assertions that its second records request was not satisfied.
Therefore, there is no dispute that this records request for job descriptions is moot.
USEA had the opportunity to file its own motion for summary judgment, oppose
4
respondent’s motion for summary judgment, or both. It did neither.
USEA did file a certification that alleged that the city did not provide
all records responsive to the request in that the records cover only capitally funded
projects and not daily work. The last statement in the affidavit of USEA’s attorney
provides, “None of the documents produced by Respondent contained copies of the
Daily Work Records between Respondent, and either Terrace Construction
Company and Noce/Amroc Construction Inc.” However, the public records request
did not request such records. The records request asked for
[a]ll agreements, proposed, unsigned, signed, executory, and either
failed or completed between the City of Cleveland and any contractor
for water and sewer related work within the last five years, including
but not limited to the following contractors: Fabrizi, Homes On-
Demand, Tri-Mor, Perk, Terrace, Allega, 216-214-3227, Digioa,
Progressive Site Work, and Fechko.
It is not clear that “Daily Work Records” are encompassed by the records request.
And if USEA’s records request does cover all daily work records, then such a
voluminous request for a five-year period would very likely be improper.5 See State
ex rel. Dehler v. Spatny, 127 Ohio St.3d 312, 2010-Ohio-5711, 939 N.E.2d 831, ¶ 3;
and State ex rel. Mitchell v. Byrd, 8th Dist. Cuyahoga No. 111205, 2022-Ohio-2700,
¶ 10-11. If USEA seeks different records that were not encompassed in its records
request and the city’s reasonable interpretation of the request, it is free to make a
more precise request.
5 In the motion for summary judgment, the city asserts that USEA’s public records
request is overly broad. The city did not inform USEA that it’s request was ambiguous or
overly broad when it was made or prior to providing records and did not ask USEA to
narrow its records request as is required by R.C. 149.43(B)(2).
Further, the attachments to the certification of six printouts from a
program purportedly used by the city to manage water and sewer projects do not
create a material question of fact. These printouts do not evidence that other
documents responsive to the records request exist that were not produced by the
city. These printouts are not accompanied by sufficient elaboration or explanation
such that the averments in the city’s affidavit are contradicted.
Accordingly, we find USEA’s request for writ of mandamus moot.
C. Damages, Costs, and Attorney Fees
A relator may still be entitled to statutory damages, costs, or attorney
fees when a court determines that a public records mandamus action is moot. State
ex rel. Kesterson v. Kent State Univ., 156 Ohio St.3d 13, 2018-Ohio-5108, 123 N.E.3d
887, ¶ 13. In its complaint, USEA sought statutory damages, costs, and attorney
fees.
Pursuant to R.C. 149.43(C)(3)(a)(i), if a court orders a public office or
person to comply with the Public Records Act, the court shall include an award of all
costs in the action. A court may also award costs if it finds the public office or person
acted in bad faith. R.C. 149.43(C)(3)(a)(ii) and 149.43(C)(3)(b)(iii).6
Under R.C. 149.43(C)(2), an award of statutory damages requires a
court to determine that the public office or person responsible for
the public records failed to comply with an obligation under R.C.
6The version of the statute in effect at the time that a records request is made
controls this action. See State ex rel. McDougald v. Sehlmeyer, 162 Ohio St.3d 578, 2020-
Ohio-4428, 166 N.E.3d 1127, ¶ 15. The Act was amended effective April 29, 2022, by 2022
H.B. 93 and September 12, 2022, by 2022 H.B. 99, but these amendments did not modify
these subsections of the Act.
149.43(B). [State ex rel.] Rogers [v. Dept. of Rehab. & Corr.], 155 Ohio
St.3d 545, 2018-Ohio-5111, 122 N.E.3d 1208, at ¶ 23. Similarly, “R.C.
149.43(C)(2)(b)(i) requires an award of reasonable attorney fees when
the public office or person responsible for the public records failed to
timely respond, pursuant to R.C. 149.43(B), to the public-
records request.” [Kesterson at] ¶ 24.
State ex rel. Mun. Constr. Equip. Operators’ Labor Council v. Cleveland, 162 Ohio
St.3d 195, 2020-Ohio-3197, 165 N.E.3d 214, ¶ 23. See also Wine, Slip Opinion
No. 2022-Ohio-4472, at ¶ 13.
i. Costs
This court has not ordered the city to comply with the Public Records
Act because the city has produced records responsive to the request, rendering the
mandamus claim moot. We also do not find that the city acted in bad faith nor has
USEA argued that the city acted in bad faith. Therefore, we decline to award costs
in this action.
ii. Statutory Damages
We further find that statutory damages are not appropriate in this
case because the city has complied with the Public Records Act. Under the Act, the
city was required to produce records within a reasonable period of time.7 A
determination of what is reasonable depends on the facts and circumstances of each
case. State ex rel. Morgan v. Strickland, 121 Ohio St.3d 600, 2009-Ohio-1901, 906
7Even though given the opportunity to file for summary judgment on the issue,
USEA did not argue in summary judgment that the city failed to produce records in a timely
manner.
N.E.2d 1105, ¶ 10, citing State ex rel. Consumer News Servs., Inc. v. Worthington
City Bd. of Edn., 97 Ohio St.3d 58, 2002-Ohio-5311, 776 N.E.2d 82, ¶ 37-38.
The records requests were made on February 9, 2022. Soon after, the
city provided a reference number, but did not produce records by the time the
complaint was filed on July 11, 2022. The city, on July 15, 2022, produced 2,705
pages of document responsive to the records requests. These records required
minor redaction of private information. It took the city approximately four months
to prepare and produce records responsive to a broadly worded records request that
covered a five-year period. Given the limited nature of the arguments before us, we
find that the city produced records in reasonable period of time. See Easton Telecom
Servs., L.L.C. v. Woodmere, 8th Dist. Cuyahoga No. 107861, 2019-Ohio-3282. The
city did not violate its obligation under the Act to promptly produce records.
Therefore, we decline to award statutory damages.
iii. Attorney Fees
For the same reasons, we decline to award attorney fees in this case.
An award of attorney fees is appropriate where a court determines that the public
office or person has failed to comply with the Act or:
(i) The public office or the person responsible for the public records
failed to respond affirmatively or negatively to the public records
request in accordance with the time allowed under division (B) of this
section.
(ii) The public office or the person responsible for the public records
promised to permit the relator to inspect or receive copies of the public
records requested within a specified period of time but failed to fulfill
that promise within that specified period of time.
(iii) The public office or the person responsible for the public records
acted in bad faith when the office or person voluntarily made the public
records available to the relator for the first time after the relator
commenced the mandamus action, but before the court issued any
order concluding whether or not the public office or person was
required to comply with division (B) of this section. No discovery may
be conducted on the issue of the alleged bad faith of the public office or
person responsible for the public records. This division shall not be
construed as creating a presumption that the public office or the person
responsible for the public records acted in bad faith when the office or
person voluntarily made the public records available to the relator for
the first time after the relator commenced the mandamus action, but
before the court issued any order described in this division.
R.C. 149.43(C)(3)(b)(i) through 149.43(C)(3)(b)(iii).
Based on the limited arguments before this court, the city timely
responded to the records requests at issue here. It took the city four months to
respond and only after USEA filed its mandamus action. However, given the limited
argument, broad scope of the records request, and the voluminous records that were
produced, we do not find that the city’s production of records was done in an
unreasonable time. Further, we do not find that any of the provisions of
R.C. 149.43(C)(3)(b)(i) through 149.43(C)(3)(b)(iii) apply. Therefore, we decline to
award attorney fees in this case.
We grant the city’s motion for summary judgment and deny USEA’s
request for writ of mandamus as moot. The request for costs, attorney fees, and
statutory damages is also denied. Each party to bear its own costs. The clerk is
directed to serve on the parties notice of this judgment and its date of entry upon
the journal. Civ.R. 58(B).
Writ denied.
_________________________
MICHELLE J. SHEEHAN, JUDGE
KATHLEEN ANN KEOUGH, P.J., and
MARY J. BOYLE, J., CONCUR