State ex rel. Dunlap v. Violet Twp. Bd. of Trustees

[Cite as State ex rel. Dunlap v. Violet Twp. Bd. of Trustees, 2013-Ohio-2295.]
COURT OF APPEALS
FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
: JUDGES:
STATE OF OHIO EX REL. : Patricia A. Delaney, P.J.
SCOTT DUNLAP : W. Scott Gwin, J.
: William B. Hoffman, J.
Relator :
:
-vs- :
: Case No. 12-CA-8
:
VIOLET TOWNSHIP BOARD OF :
TRUSTEES, ET AL. : OPINION
Respondents
CHARACTER OF PROCEEDING: Writ of Mandamus
JUDGMENT: Writ Granted in part; Denied in part.
DATE OF JUDGMENT ENTRY: May 30, 2013
APPEARANCES:
For Relator: For Respondents:
WESLEY T. FORTUNE PAUL-MICHAEL LA FAYETTE
Fortune & Associates, LLC Poling and Petrello
421 Hill Road, North 300 East Broad Street, Suite 350
Pickerington, Ohio 43147 Columbus, Ohio 43215
[Cite as State ex rel. Dunlap v. Violet Twp. Bd. of Trustees, 2013-Ohio-2295.]
Delaney, P.J.
{¶1 } Relator Scott Dunlap has filed a petition for writ of mandamus for alleged
violations of Ohio’s Sunshine Laws, R.C. 121.22 (Public Meetings Act) and R.C. 149.43
(Public Records Act). Respondents are the Violet Township Board of Trustees as well
as the individual trustees, and they have filed an answer to the complaint. Both Relator
and Respondents have filed motions for summary judgment. Said motions are now
before this Court for consideration.
{¶2 } Essentially, Relator raises two arguments: (1) Respondents kept minutes
which were “inadequate or incorrect” and (2) Respondents improperly entered into
executive sessions on multiple occasions. Relator requests the writ to compel
Respondents to prepare, file, and maintain full and accurate records of township
proceedings, accounts and transactions and to conduct all meetings in public, except for
properly called executive sessions.
{¶3 } Respondents in turn admit to four violations of the Public Meetings Act in
regards to making proper motions to begin executive sessions. However, Respondents
argue some of the admitted instances are barred by the applicable statute of limitations.
Respondents further argue the remaining instances comply in all respects with the
Sunshine laws.
{¶4 } SUMMARY JUDGMENT STANDARD
{¶5 } The Supreme Court of Ohio in State ex rel. Zimmerman v. Tompkins, 75
Ohio St.3d 447, 448, 663 N.E.2d 639, 1996–Ohio–211, 663 N.E.2d 639 explained the
standard for summary judgment: “Civ.R. 56(C) provides that before summary judgment
may be granted, it must be determined that (1) no genuine issue as to any material fact
Fairfield County, Case No. 12-CA-8 3
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 nonmoving party,
that conclusion is adverse to the party against whom the motion for summary judgment
is made. State ex. rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511, 628 N.E.2d
1377, 1379, citing Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4
O.O3d 466, 472, 364 N.E.2d 267, 274.”
{¶6 } MANDAMUS
{¶7 } The Supreme Court has held, “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.” State ex rel. Am.
Civ. Liberties Union of Ohio, Inc. v. Cuyahoga Cty. Bd. of Commers (2011), 128 Ohio
St.3d 256, 261, 943 N.E.2d 553, 560. Further, the Supreme Court has held, “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” Id. at 263-264.
{¶8 } To be entitled to the requested writ of mandamus, Relator must establish
a clear legal right to minutes which are more detailed, a clear legal duty on the part of
Respondents to provide those, and the lack of an adequate remedy at law. State ex rel.
Inskeep v. Staten (1996), 74 Ohio St.3d 676, 677, 660 N.E.2d 1207, 1208.
Fairfield County, Case No. 12-CA-8 4
I.
{¶9 } In his first “objection,” Relator argues the minutes for January 20, 2010,
April 7, 2010, April 21, 2010, November 3, 2010, and August 3, 2011 have “insufficient
facts to understand and appreciate the rationale behind the Board’s decision.”
{¶10 } Respondents argue the minutes are self explanatory by referencing the
resolution numbers being approved. Further, Respondents argue Relator has provided
no evidence that any discussion took place regarding these votes other than that which
is already contained in the minutes. In other words, the resolutions were approved
without additional discussion and based upon review of the resolutions alone.
{¶11 } Relator does not offer any evidence as to any alleged missing details or
any discussions had at the meeting which were not included in the written minutes.
Relator merely avers that the minutes are too generalized. We have reviewed the
sixteen portions of the minutes cited by Relator in his Motion for Summary Judgment
and find they are sufficiently detailed to comply with the statute. We find the details
presented in the minutes reflect the entirety of the discussion which took place relative
to each vote at each meeting. The requested writ of mandamus as to this “objection” is
denied because Relator has failed to demonstrate a clear legal right to anything other
than that which already appears in the minutes provided to him.
II.
{¶12 } In Relator’s next “objection”, he argues Respondents “failed to state with
requisite specificity the purpose or purposes of convening executive sessions . . . in
both its motion and vote and if any individuals present participated in the Executive
Session during the Board’s sessions.”
Fairfield County, Case No. 12-CA-8 5
{¶13 } Respondents have admitted the executive sessions entered into on
January 15, 2010 and January 16, 2010 lacked a stated statutory purpose, however,
Respondents argue these particular claims are time barred by the two year statute of
limitations found in R.C. 121.22(I)(1). The instant complaint was filed on February 21,
2012 which would make these claims outside of a two year statute of limitations.
Relator in turn argues there is a ten year statute of limitations pursuant to R.C. 2305.14.
{¶14 } R.C. 121.22(I)(1) provides in part,
{¶15 } “(I)(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.”
{¶16 } Relator has filed a writ of mandamus which is clearly brought as “an action
to enforce this section.” Based upon the language of the statute, we find Relator’s
claims relative to any alleged failures to comply with the Open Meetings Act are subject
to a two year statute of limitations. For this reason, Relator’s claims relative to the
January 15, 2010 and January 16, 2010 minutes are barred by the statute of limitations.
Therefore, we will not grant the writ as it relates to the January 15, 2010 and January
16, 2010 minutes even though Respondent has admitted the minutes fail to comply with
the statute. Although not raised by Respondents, we likewise hold that claims relative
to the minutes for January 20, 2010 are barred by the statute of limitations.
Fairfield County, Case No. 12-CA-8 6
{¶17 } Respondents have admitted the January 4, 2011 and November 2, 2011
minutes fail to state with requisite specificity the reason for entering into executive
session. For this reason, we grant the writ of mandamus as to these two dates.
{¶18 } There remain seven claims for improper entrance into executive session:
April 7, 2010; April 21, 2010; May 5, 2010; November 3, 2010; April 28, 2011; May 18,
2011; and August 3, 2011. The minutes on each of these dates contain both a statutory
reason for entering into executive session as well as a roll call vote as required by R.C.
121.22(G)(1).
{¶19 } The minutes for April 7, 2010 and April 21, 2010 both state in relevant
part, “Mr. Meyers made a motion to go into Executive Session . . . to discuss sale or
purchase of property (according to ORC Section 121.22 G-2).”
{¶20 } The minutes for November 3, 2010 provide, “Mr. Meyers made a motion to
go into Executive Session . . . per Section of the ORC 121.22-G4 to discuss personnel
issues.” Likewise, the minutes for May 18, 2011 state, “Mr. Weltrich made a motion to
go into Executive Session . . . to discuss personnel issues per ORC Section 121.22 G4.
. .”
{¶21 } We find Respondent’s citation to an appropriate subsection on the
foregoing dates coupled with a description of the topic to be discussed in the executive
session satisfies the statutory requirements for entering an executive session.
{¶22 } On April 28, 2011, the following minutes were recorded, “Mr. Weltlich
made a motion to go into Executive Session per the ORC Section 121.22(G)(1) to
discuss legal issues,” and on August 3, 2011, the following minutes were recorded, “Mr.
Fairfield County, Case No. 12-CA-8 7
Dunlap made a motion to go into Executive Session to discuss personnel issues per
ORC 121.22.G1.”
{¶23 } When an executive meeting is called, the statute clearly requires the
minutes to specifically contain one or more of the purposes listed in R.C. 121.22(G)(1) if
the meeting is called pursuant to subsection (G)(1). R.C. 121.22(G)(1) provides, “(G)
Except as provided in division (J) of this section, the members of a public body may
hold an executive session only after a majority of a quorum of the public body
determines, by a roll call vote, to hold an executive session and only at a regular or
special meeting for the sole purpose of the consideration of any of the following matters:
{¶24 } (1) To consider the appointment, employment, dismissal, discipline,
promotion, demotion, or compensation of a public employee or official, or the
investigation of charges or complaints against a public employee, official, licensee, or
regulated individual, unless the public employee, official, licensee, or regulated
individual requests a public hearing. Except as otherwise provided by law, no public
body shall hold an executive session for the discipline of an elected official for conduct
related to the performance of the elected official's official duties or for the elected
official's removal from office. If a public body holds an executive session pursuant to
division (G)(1) of this section, the motion and vote to hold that executive session shall
state which one or more of the approved purposes listed in division (G)(1) of this
section are the purposes for which the executive session is to be held, but need
not include the name of any person to be considered at the meeting.” (emphasis
added).
Fairfield County, Case No. 12-CA-8 8
{¶25 } The minutes for April 28, 2011 and August 3, 2011 merely state “legal
issues” and “personnel issues” rather than citing specifically to one of the issues
provided in subsection (G)(1) such as “appointment, employment, dismissal, discipline,
etc.” For this reason, we find the minutes for these two dates do not comply with the
statute.
{¶26 } The minutes for May 5, 2010 provide in relevant part, “Mr. Meyers made a
motion to . . . go into Executive Session at 8:40 pm to discuss personnel issues
according to ORC Section 121.22 G-2.” ORC Section 121.22(G)(2) does not involve
personnel issues, rather, it involves the sale or purchase of property. The minutes
appear to either be inaccurate or contain a clerical error as to the correct sub section.
For this reason, the writ will issue as it relates to the entrance into executive session in
minutes for May 5, 2010.
III.
{¶27 } Finally, Relator argues he should be awarded the civil forfeiture amounts
for violations due pursuant to R.C 121.22(I) as well as attorney fees pursuant to R.C.
121.22(I) and R.C. 149.43(C).1
{¶28 } R.C. 121.22(I) provides in part,
{¶29 } “(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
1
We note Relator withdrew his request for injunctive relief.
Fairfield County, Case No. 12-CA-8 9
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: . . .
{¶30 } (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 of the
injunction, a well-informed public body reasonably would believe that the public body
was not violating or threatening to violate this section;
{¶31 } (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.”
{¶32 } The award of a civil forfeiture pursuant to R.C. 121.22(I) is only
appropriate where an action has been brought in the court of common pleas and that
court issues an injunction. This cause was not originated in the court of common pleas
and an injunction was not issued. For these reasons, attorney fees cannot be awarded
pursuant to R.C. 121.22(I).
{¶33 } While it appears from the plain language of the statute that an award of
attorney fees would likewise be appropriate only where an injunction has been issued,
the Supreme Court has held that an award of attorney fees may be appropriate where
mandamus is issued for a violation of the open meetings act. See State ex rel. Long v.
Cardington Village Council (2001), 92 Ohio St.3d 54, 60, 748 N.E.2d 58, 64.(“Based on
the foregoing, [Relator] has established her entitlement to the requested extraordinary
relief in mandamus. She is also entitled to an award of attorney fees and costs. R.C.
149.43(C); cf. R.C. 121.22(I)(2).”).
Fairfield County, Case No. 12-CA-8 10
{¶34 } The conduct by Respondents in this case was not as egregious as the
conduct where attorney fees have been awarded. Attorney fees were awarded where
the minutes were wholly incomplete and contained such errors as citing a member had
voted who was not even on the council. In the instant case, aside from the two
instances where any statutory reason was omitted, it appears Respondents attempted
to comply with the Sunshine laws by citing to a specific code section together with the
topic which was to be discussed. Of the many instances cited by Relator, only one
clerical error or omission was found. Further, the public benefit in bringing this cause is
minimal at best in this case as the majority alleged violations have not been proven.
For these reasons, we find an award of attorney fees is not warranted.
{¶35 } Relator is granted summary judgment as to the two instances admitted to
by Respondents and as to the May 5, 2010, April 28, 2011, and August 3, 2011 minutes
relative to entering into executive session. Respondents are granted summary
judgment as to all other portions of the petition. A writ of mandamus is issued requiring
Respondents to correct the errors found.
By: Delaney, P.J.
Gwin, J. and
Hoffman, J. concur
_____________________________
_____________________________
_____________________________
JUDGES
IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO, EX REL. :
SCOTT DUNLAP :
:
Relator :
:
:
-vs- : JUDGMENT ENTRY
:
VIOLET TOWNSHIP BOARD :
OF TRUSTEES, ET AL., :
:
Respondents : CASE NO. 12-CA-8
For the reasons stated in our accompanying Memorandum-Opinion on file,
summary judgment is granted in favor of Relator as to the two instances admitted to by
Respondents and as to the May 5, 2010, April 28, 2011, and August 3, 2011 minutes
relative to entering into executive session. Respondents are granted summary
judgment as to all other portions of the petition. A writ of mandamus is issued requiring
Respondents to correct the errors found. Relator’s request for attorney fees is denied.
Costs assessed to be divided equally between Relator and Respondent Violet Township
Board of Trustees.
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_________________________________
_________________________________
JUDGES