[Cite as State ex rel. Young v. Lebanon City School Dist. Bd. of Edn., 2013-Ohio-1111.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
WARREN COUNTY
STATE OF OHIO ex rel. :
CHRISTINE L. YOUNG, CASE NO. CA2012-02-013
:
Relator-Appellant, OPINION
: 3/25/2013
- vs - :
:
BOARD OF EDUCATION OF LEBANON
CITY SCHOOL DISTRICT, et al., :
Respondents-Appellees. :
CIVIL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
Case No. 11CV79540
Finney, Stagnaro, Saba & Patterson, Christopher P. Finney, 2323 Erie Avenue, P.O. Box
8802, Cincinnati, Ohio 45208, for relator-appellant
The Law Firm of Curt C. Hartman, Curt C. Hartman, 3749 Fox Point Court, Amelia, Ohio
45102, for relator-appellant
McCaslin, Imbus & McCaslin, R. Gary Winters and Ian R. Smith, 900 Provident Bank
Building, 632 Vine Street, Cincinnati, Ohio 45202, for respondents/appellees
Ennis, Roberts & Fischer, William M. Deters and Erin Wessendorf-Wortman, 1714 W.
Galbraith Road, Cincinnati, Ohio 45239, for respondents/appellees
S. POWELL, J.
{¶ 1} A Lebanon resident sued the Lebanon City School Board, claiming the board
violated Ohio's open meetings law when it failed to timely approve minutes of certain
Warren CA2012-02-013
meetings, exceeded the scope of the published purpose for a special meeting, and failed to
follow the required procedures to hold executive sessions at three specific meetings. The
Warren County Common Pleas Court granted summary judgment to the board. We affirm in
part, and reverse in part, and remand this case as the board was entitled to summary
judgment on only one issue, and, the resident was entitled to partial summary judgment.
{¶ 2} The Lebanon resident, relator-appellant, Christine L. Young, filed an amended
complaint for declaratory judgment, injunctive relief, civil forfeiture, and attorney fees against
respondent-appellee, Lebanon City School District Board of Education, the five members of
the school board, and the district treasurer. We will refer to the respondents collectively as
the "board."
{¶ 3} Young maintains that the board violated the open meetings act on four specific
occasions when it failed to prepare and approve the previous meeting's minutes at the next
respective meeting. Young claims that meeting minutes issued by the board fail to contain
sufficient information to enable the public to understand and appreciate the rationale behind
the board's decisions. Young asserts that the January 17, 2011 special meeting exceeded
the scope of the meeting's purpose as stated in the notice provided for the meeting. She
also claims that the board did not properly declare the specific purpose for an executive
session before it entered into an executive session on the January 17, 2011 date and two
other specific dates.
{¶ 4} Young's prayer for relief requested, in part, that the trial court enjoin the board
from continuing its practices with regard to the preparation of meeting minutes and the
manner in which it conducted its executive sessions and award $500 per each found violation
and court costs and reasonable attorney fees, as permitted by statute.
{¶ 5} Young moved for partial summary judgment, arguing that there was no dispute
of fact the board violated R.C. 121.22 by failing to timely prepare and approve meeting
-2-
Warren CA2012-02-013
minutes for four specific meetings at the next respective meeting, and by holding a special
meeting on January 17, 2011, that exceeded the scope of the specific purpose published in
the public notice for the special meeting. The school board moved for summary judgment on
all issues. The trial court denied Young's motion, and granted the school board's motion.
Young instituted this appeal, setting forth one assignment of error, with several issues for our
review.
{¶ 6} Assignment of Error:
{¶ 7} THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN GRANTING
SUMMARY JUDGMENT IN FAVOR OF THE RESPONDENTS-APPELLEES AND IN
DENYING PARTIAL SUMMARY JUDGMENT IN FAVOR OF THE RELATOR-APPELLANT.
Timeliness for Approval of Minutes
{¶ 8} Young first argues that the board violated or threatened to violate the open
meetings act when it "systematically" failed to have minutes of board meetings prepared,
corrected or approved at the board's next respective meeting. Specifically, Young argues
that R.C. 121.22, the open meetings act, and R.C. 3313.26, which deals with a school
treasurer's preparation of meeting minutes, should be read together, or in pari materia.
Young asserts that the two statutes read together require the school board to prepare,
correct, and approve the minutes of a previous meeting at the next respective meeting.
Young cites to four meetings where she claims this did not occur, to wit: the meetings of
January 17, 2011, January 24, 2011, January 31, 2011, and February 22, 2011.
{¶ 9} The record reveals the following evidence was admitted pertinent to this issue.
Young was present when the board met for a "workshop" on January 17, 2011, to discuss the
results of a community survey that pertained, in part, to input about placing a tax levy on the
ballot. The approved written minutes indicate the board held an executive session at the
meeting.
-3-
Warren CA2012-02-013
{¶ 10} Young made a public records request to the board on January 25, 2011. The
school district treasurer responded with a letter dated March 22, 2011, which indicated that
Young had already received some items from her public records request. The letter stated
that the "last item from your public record request * * * was a request for the board minutes
from the meeting on January 17, 2011. This was a workshop which is different than a board
meeting and minutes are not typed from a board workshop." [sic] The letter concluded with
the following: "Please accept this as our acknowledgement of fulfilling your request." Less
than a month later, Young filed her complaint against the board on April 8, 2011.
{¶ 11} The evidence includes an affidavit from the district treasurer, which stated, in
essence, that he meant to inform Young that the January 17, 2011 work session was not
recorded with audio equipment, and, consequently, the minutes from that meeting were
drafted from notes. The treasurer stated that the minutes were not yet available because the
board had not approved the minutes, which he indicated the board approved on April 18,
2011. The treasurer testified that the board was in the process of transitioning from
transcribing verbatim minutes from audio recordings to written minutes taken at the meetings,
and for that reason, the board was "about three months" behind in approving the minutes for
previous meetings.
{¶ 12} We consider all of the issues raised in this appeal mindful that public records
are the people's records, and the custodians of those records are merely trustees for the
people. White v. Clinton Cty. Bd. of Commrs., 76 Ohio St.3d 416, 420 (1996). "One of the
strengths of American government is the right of the public to know and understand the
actions of their elected representatives." Id. at 419. "This includes not merely the right to
know a government body's final decision on a matter, but the ways and means by which
those decisions were reached." Id.
{¶ 13} The open meetings act of R.C. 121.22 provides that the statute shall be liberally
-4-
Warren CA2012-02-013
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(A). All meetings of any public body are declared to be public
meetings open to the public at all times, and the minutes of a regular or special meeting of
any public body shall be promptly prepared, filed, and maintained and shall be open to public
inspection. R.C. 121.22(C).
{¶ 14} In other words, where members of a public body agree to attend, in their official
capacity, a meeting where public business is to be discussed and a majority of the members
attend, R.C. 121.22(C) necessitates that minutes of the meeting be recorded. State ex rel.
The Fairfield Leader v. Ricketts, 56 Ohio St.3d 97, 102 (1990); see R.C. 121.22(B)(2)
("meeting" is any prearranged discussion of the public business of the public body by a
majority of its members).
{¶ 15} The term "promptly" prepared, filed and maintained is not defined in R.C.
121.22, nor is it defined in R.C. 149.43, the public records act. We note that courts have
used the ordinary and customary meaning of "without delay and with reasonable speed" to
define "promptly" for purposes of "promptly" prepare public records under R.C. 149.43. State
ex rel. Consumer News Serv., Inc. v. Worthington City Bd. of Edn., 97 Ohio St.3d 58, 2002-
Ohio-5311 ¶ 37 (this meaning depends largely on facts of each case).
{¶ 16} Any person may bring an action to enforce R.C. 121.22, and "[u]pon 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." R.C. 121.22(I)(1).
{¶ 17} We observe that a board of education acts by resolutions duly adopted at its
legally convened meetings and memorialized by written minutes; the memorialization of its
actions is a function of its treasurer. See Holden v. Bd. of Educ., Findlay City Sch. Dist., 3rd
-5-
Warren CA2012-02-013
Dist. No. 5-79-34, 1980 WL 352023 (Mar. 28, 1980).
{¶ 18} R.C. 3313.26, states, in pertinent part, that:
The treasurer of the board of education shall record the
proceedings of each meeting in a book to be provided by the
board for that purpose, which shall be a public record. The
record of proceedings at each meeting of the board shall be read
at its next succeeding meeting, corrected and approved, which
approval shall be noted in the proceedings. After such approval,
the president shall sign the record and the treasurer attest it.
By resolution, a board of education may waive the reading of the
record of any of its proceedings, provided that such record has
been distributed to the members of the board of education at
least two days prior to the date of the next succeeding meeting
and that copies of such record are made available to the public
and news media. Such regulation shall be in full force and effect
until such time as amended or rescinded by said board of
education.
{¶ 19} Young was not able to provide, nor were we able to find, a case in which R.C.
121.22 and R.C. 3313.26 were considered and read in pari materia. However, as Young
points out, the Ohio Supreme Court has stated that statutes relating to the same subject
matter must be construed in pari materia. State ex rel. Gains v. Rossi, 86 Ohio St.3d 620
(1999); State ex rel. Citizens for Open, Responsive & Accountable Govt. v. Register, 116
Ohio St.3d 88, 2007-Ohio-5542, ¶ 28; State ex rel. Long v. Cardington Village Council, 92
Ohio St.3d 54, 56 (2001).
{¶ 20} The Ohio Supreme Court in Register considered the open meetings act, the
public records act and R.C. 507.04, which required the fiscal officer keep an accurate record
of the proceedings of the trustees at all of their meetings, and found that construing the three
statutes together, the township had a duty to maintain a full and accurate record of
proceedings and make them available for public inspection. Id.; see Long at 61 (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
-6-
Warren CA2012-02-013
to make them available for public inspection).
{¶ 21} In White, 76 Ohio St.3d at paragraph one of the syllabus, the Ohio Supreme
Court held that "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 proceeding."
Id.
{¶ 22} In reading statutes in pari materia, this court must give a reasonable
construction that provides the proper effect to each statute; all provisions of the Revised
Code bearing upon the same subject matter should be construed harmoniously unless they
are irreconcilable. State ex rel. Cordray v. Midway Motor Sales, Inc., 122 Ohio St.3d 234,
238, 2009-Ohio-2610, ¶ 25; Blair v. Sugarcreek Twp. Bd. of Trustees, 132 Ohio St.3d 151,
2012-Ohio-2165, ¶ 18.
{¶ 23} A court's "paramount concern" when construing a statute is the statute's
legislative intent and courts should avoid adopting a construction of a statute that would
result in circumventing the evident purpose of the enactment. See State ex rel. Cincinnati
Post v. Cincinnati, 76 Ohio St.3d 540, 543-44 (1996).
{¶ 24} For White, Register and Long, the Ohio Supreme Court relied on a specific
statute – R.C. 305.10 or R.C. 507.04 or R.C. 733.27 – in conjunction with the pertinent public
records and open meetings statute to impose a duty with reference to the content of meeting
minutes or the record of proceedings. (Emphasis added.) Likewise, reading R.C. 3313.26 in
pari materia with R.C. 121.22 provides the time frame for determining when the minutes of a
board of education are "promptly prepared, filed and maintained." To find otherwise would
render the language of R.C. 3313.26 meaningless.
{¶ 25} We are aware of the board's argument and the trial court's determination with
regard to a lack of "private right of action" component of R.C. 3313.26. However, the issues
presented in this case are related to open meetings and the public's access to the decision-
-7-
Warren CA2012-02-013
making process of a public body. The Ohio Supreme Court did not limit the in pari materia
application of R.C. 305.10 or R.C. 507.04 or R.C. 733.27 because those statutes did not
expressly confer a private right of action and we see no reason to restrict the application of
R.C. 3313.26 to R.C. 121.22 in that manner.
{¶ 26} We also acknowledge that this court previously said we were not aware of any
time requirement for the preparation of minutes of public meetings in the 2005 case of In re
Removal of Kuehnle, 161 Ohio App.3d 399, 2005-Ohio-2373, ¶ 113 (12th Dist.). The
Kuehnle case involved the removal of school board members for alleged gross neglect of
duty, misfeasance, malfeasance, or nonfeasance with regard to a number of matters or
grounds, and while the trial court found the board violated the open meetings act and the
public records act when it delayed formally approving meeting minutes, the case principally
turned on those other grounds and matters.
{¶ 27} Nonetheless, the Stark County Common Pleas Court found in Schafer v. Board
of Ed. of Alliance City School Dist., Stark County, 58 Ohio Law Abs. 554, 94 N.E.2d 112
(C.P.1950), that the code has provided direction for the preparation and approval of meeting
minutes.
{¶ 28} Specifically, the court in Schafer considered the language of Section 4834-3, a
predecessor to R.C. 3313.26, which required, in part, that the "record of proceedings at each
meeting of the board shall be read at its next succeeding meeting, corrected, if necessary,
and approved, which approval shall be noted in the proceedings." The other statute dealt
with roll call votes. Id.
{¶ 29} The Schafer court found that the two statutes were mandatory and the
proceeding at issue – the acceptance of the resignation of the superintendent – was a nullity
because the board did not comply with the "mandatory words" of the statutes. Id.
{¶ 30} In explaining its determination, the Schafer court noted that the language of
-8-
Warren CA2012-02-013
Section 4834-3 evidenced that the legislature intended the minutes of a meeting be read,
corrected and approved at the next meeting of the board, "be it special or regular [meeting],
because that is the time when the matter of the whole proceedings is fresh in the minds of
the Board members and the time when they are best able to make corrections and
approvals."
{¶ 31} The Schafer case and the in pari materia decisions cited above from the Ohio
Supreme Court persuade this court to read R.C. 121.22 and R.C. 3313.26 together in
determining whether the board prepared and approved the meeting minutes "promptly."
{¶ 32} Under Civ.R. 56, summary judgment is appropriate when no genuine issues of
material fact remain to be litigated, the moving party is entitled to judgment as a matter of
law, and reasonable minds can come to only one conclusion, and that conclusion is adverse
to the nonmoving party. Grizinski v. Am. Express Fin. Advisors, Inc., 187 Ohio App.3d 393,
2010-Ohio-1945, ¶ 14 (12th Dist.). The moving party has the burden of demonstrating there
is no genuine issue of material fact. Id. A dispute of fact can be considered "material" if it
affects the outcome of the litigation, and considered "genuine" if it is supported by substantial
evidence that exceeds the allegations in the complaint. Id. This court's review of a trial
court's ruling on a summary judgment motion is de novo. Id.
{¶ 33} Construing the evidence most favorably for the non-moving party on each
party's respective summary judgment motion, reasonable minds could come to but one
conclusion and that conclusion is adverse to the board. Young alleged that the board failed
to prepare and approve minutes at the next meeting on four occasions in January and
February 2011. The board acknowledged that it was three months behind in approving
meeting minutes and did not approve minutes for the meetings at the next respective
meeting during the two-month period at issue. Reading the statutes in pari materia, R.C.
3313.26 and R.C. 121.22 define what would constitute "promptly" prepared minutes, and the
-9-
Warren CA2012-02-013
minutes from the four specific meetings at issue were not promptly prepared in accordance
with R.C. 121.22. Therefore, Young is entitled to summary judgment on this specific issue.
The grant of summary judgment to the board on this issue is reversed.
Published Purpose of Special Meeting
{¶ 34} Young next argues that the board violated or threatened to violate the open
meetings act when it exceeded the scope of the announced and published purpose of the
special meeting on January 17, 2011.
{¶ 35} It appears uncontested that the meeting the board held on January 17 was a
special meeting and not a regular meeting. R.C. 121.22(F) states that "[e]very public body,
by rule, shall establish a reasonable method whereby any person may determine * * * the
time, place, and purpose of all special meetings. A public body shall not hold a special
meeting unless it gives at least twenty-four hours' advance notice to the news media that
have requested notification, except in the event of an emergency requiring immediate official
action."
{¶ 36} Young cites two appellate decisions for her assertion that the notice for the
special meeting must refer to those specific reasons, and those specific reasons are the only
ones that can be addressed at such a meeting. See Jones v. Brookfield Township Trustees,
11th Dist. No. 92-T-4692, 1995 WL 411842 (June 30, 1995); see also Hoops v. Jerusalem
Twp. Bd. of Trustees, 6th Dist. No. L-97-1240, 1998 WL 172819 (Apr. 10, 1998).
{¶ 37} Specifically, the Jones court noted that:
[I]n giving notice of a general meeting, a public body is not
required to state the meeting's purpose. This distinction is
obviously predicated upon the fact that such a meeting is not
being held for any specific reason, but instead is being held
because it is a regularly scheduled meeting. In contrast, the use
of the term "special meeting" implies that such a meeting can
only be held when there are specific reasons for holding it.
Given the existence of such a reason, it follows that the notice of
a special meeting must refer to those specific reasons, and that
- 10 -
Warren CA2012-02-013
those specific issues are the only ones which can be addressed
at such a meeting.
Jones at *6.
{¶ 38} The Jones court, citing to 1988 Ohio Atty.Gen.Ops. No. 88-029, also stated
there is nothing in the wording of R.C. 121.22(F) that would support the conclusion that a
special meeting can only be held to consider only one specific issue; i.e., the language of the
division does not prohibit the holding of a special meeting for general purposes. Jones (term
"special meeting" was only intended to refer to those meetings that were not regularly
scheduled; special meeting notice can merely state that meeting is being held for general
purposes, if that is the actual reason for meeting); see also Warthman v. Genoa Twp. Bd. of
Trustees, 5th Dist. No. 10CAH040034, 2011-Ohio-1775, ¶ 118.
{¶ 39} In Hoops, the 6th District reviewed the published notices and minutes from two
separate meetings. The court observed that the notices indicated the purpose of each
special meeting was the receipt of bids on certain fire department equipment, but the minutes
reflected that other regular business of the township was conducted at those meetings. Id. at
*4. The Hoops court found that the business transacted by the trustees at those two
meetings exceeded the scope of the published purpose for those two respective meetings,
and were held in violation of R.C. 121.22(F) as a matter of law. Hoops at *5.
{¶ 40} According to the record in the instant case, the written published notice
provided before the January 17, 2011 meeting indicated the "purpose is to have a workshop
to discuss community information." The approved minutes of the meeting stated that "Mrs.
Lawrence gave a presentation of the Community Survey Results." There was no further
elaboration on that article of business in the approved minutes. The minutes also indicate
the board entered into an executive session "to discuss negotiations with public employees
concerning their compensation and other terms and conditions of their employment." Young
- 11 -
Warren CA2012-02-013
argues that the stated purpose for the executive session exceeds the published purpose of
"community information."
{¶ 41} The board offered an affidavit of the district treasurer, who explained that the
executive session was related to the published purpose of the January 17 special meeting
because negotiations with public employees concerning their compensation and other terms
and conditions of their employment was a topic in the "community information" survey
discussed in the open meeting.
{¶ 42} We determine this issue by considering the published meeting notice and the
approved written minutes of the January 17 meeting. See Holden, 3rd Dist. No. 5-79-34,
1980 WL 352023 (board acts by resolutions duly adopted at its legally convened meetings
and memorialized by written minutes); see R.C. 3313.26.
{¶ 43} We conduct this review, mindful that minutes only need to reflect the general
subject matter of discussions in executive sessions, but should encompass a more
substantial treatment of items discussed at an open meeting; or, in other words, the official
minutes must contain sufficient facts and information to permit the public to understand and
appreciate the rationale behind a public body's decisions. White, 76 Ohio St.3d at 423-424;
see also R.C. 121.22(C).
{¶ 44} Applying the standard of review required for the respective summary judgment
motions, we find no genuine issues of material fact remain and reasonable minds can come
to but one conclusion and that conclusion is adverse to the board.
{¶ 45} The published notice for the January 17 meeting indicated the purpose of the
special meeting was "community information." The approved minutes indicate an individual
discussed community survey results with the board, but no other information was provided
regarding the content of this community survey. If the discussion of "community information"
encompassed such issues as employee negotiations and employee compensation, etc., we
- 12 -
Warren CA2012-02-013
would expect the approved minutes to so state. The meeting minutes failed to provide
sufficient facts and information to relate the executive session purpose of employee
negotiations and employee compensation to "community information." The board is not
entitled to summary judgment on this issue; Young is entitled to summary judgment with
regard to the special meeting published notice.
Executive Session Procedure
{¶ 46} Young argues the board violated or threatened to violate the open meetings act
when it failed to state one or more of the statutorily-approved reasons for holding an
executive session in its motion to enter into an executive session for meetings on April 20,
2009, May 17, 2010, and January 17, 2011. Young also asserts that the treasurer should not
be permitted to supplement the written minutes of the April and May meetings with his
recollections, based on his review of audio recordings of the meetings.
{¶ 47} First, we note that the board moved for and was granted summary judgment on
this challenge to the three executive sessions; Young's motion for partial summary judgment
did not raise this issue. While we are aware the Ohio Supreme Court has stated that a court
may approve the grant of summary judgment to a nonmoving party under certain
circumstances, we decline to do so in this case. See Todd Dev. Co., Inc. v. Morgan, 116
Ohio St.3d 461, 2008-Ohio-87, ¶ 17; State ex rel. Anderson v. Vermilion, 134 Ohio St. 3d
120, 2012-Ohio-5320, ¶ 8. Accordingly, we address Young's argument solely on the basis of
whether the trial court erred in granting summary judgment to the board.
{¶ 48} As previously stated, Ohio's Open Meetings Act is to be liberally construed to
require a public body to take official action and conduct deliberations upon official business in
meetings open to the public. R.C. 121.22(A). Public officials may discuss certain sensitive
information in a private executive session from which the public is excluded, if particular
procedures are followed. Tobacco Use Prevention & Control Found. Bd. of Trustees v.
- 13 -
Warren CA2012-02-013
Boyce, 185 Ohio App.3d 707, 728, 2009-Ohio-6993, ¶ 64 (10th Dist.); see Jones, 1995 WL
411842, citing 1988 Ohio Atty.Gen.Ops. No. 88-029.
{¶ 49} Specifically, 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
specific matters. R.C. 121.22(G); see also Long, 92 Ohio St.3d at 59. According to R.C.
121.22(G), and as summarized below, a public body may hold an executive session for: 1)
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; 2) the purchase or sale of property for public purposes; 3) conferences with an
attorney for the public body concerning disputes involving the public body that are the subject
of pending or imminent court action; 4) preparing for, conducting, or reviewing negotiations
with public employees concerning their compensation or other terms and conditions of their
employment; 5) matters required to be kept confidential by federal law or regulations or state
statutes; 6) details relative to the security arrangements and emergency response; 7) issues
involving a county hospital.
{¶ 50} The executive session exceptions contained in R.C. 121.22(G) are to be strictly
construed. State ex rel. Hardin v. Clermont Cty. Bd. of Elections, 12th Dist. Nos. CA2011-05-
045, CA2011-06-047, 2012-Ohio-2569, ¶ 15.
{¶ 51} Young claims the board violated the open meetings act at the executive session
on January 17, 2011, and, as previously noted, the minutes for the special meeting on that
date indicate a motion was made to enter into executive session to "discuss negotiations with
public employees concerning their compensation and other terms and conditions of their
employment." The minutes also indicate a second of the motion and a roll call vote.
{¶ 52} Young asserts that she was present at that meeting and the school
- 14 -
Warren CA2012-02-013
superintendent asked the board to enter into an executive session to discuss "time lines."
She indicated the superintendent also said that no board action would be taken and asked
someone to note the "time" when the board entered executive session. Young recalls the
superintendent said she could move to another room, or something to that effect, or he would
walk her out, if she chose to leave. Young admitted that she left at that time and did not
return, and did not hear a motion or roll call vote to enter into executive session.
{¶ 53} Young also challenges the executive sessions from the regular meetings of
April 20, 2009, and May 17, 2010. The approved written minutes for the April 20 meeting
state that a motion was made to enter into executive session to discuss "personnel." The
approved written minutes for the May 17 meeting indicate a motion to enter into executive
session was made, but no purpose was stated. Young does not assert that either of the April
or May executive sessions at issue lacked a motion for roll call vote.
{¶ 54} A board of education speaks only through its resolutions entered upon the
journal of its minutes. Cashdollar v. Bd. of Edn. of Northridge, 5th Dist. No. CA 2951, 1983
WL 6527 (July 7, 1983) (discussing whether a one-day suspension of a student was
appealable under Chapter 2506 when and if the Board of Education enters an appropriate
resolution on its minutes or its journal); see also Popson v. Danbury Local Sch. Bd. of Edn.,
152 Ohio App.3d 304, 2003-Ohio-1625 (6th Dist.); see Swafford v. Norwood Bd. of Edn., 14
Ohio App.3d 346, 348 (1st Dist.1984) (in determining time for administrative appeal, court
found that a public board, commission, or other deliberative body speaks through its minutes
or its written record of resolutions, directives, and action); contra A.M.R. v. Zane Trace Local
Bd. of Edn., 4th Dist. No. 11CA3261, 2012-Ohio-2419.
{¶ 55} The treasurer testified by deposition and by affidavit that the board possessed
audio recordings of the pertinent April and May regular meetings at issue and his review of
those recordings indicated that additional information fulfilling the requirements of R.C.
- 15 -
Warren CA2012-02-013
121.22 was provided by the board before it entered into the executive sessions on the two
dates in April and May.
{¶ 56} The existence of audio recordings of the April and May meetings adds an
additional element to this case. We acknowledge the Ohio Supreme Court in Long reviewed
audiotapes submitted in that case. Long 92 Ohio St.3d at 57. However, the Long court
rejected the public body's attempt to offer the audio recordings to satisfy the requirements of
R.C. 121.22. Id. In explaining its rejection, the Long court cited the existence of inaudible
passages in the tapes, the inability to identify the speakers without a transcript, and, more
pertinent to this case, the public body did not tape all of its meetings and did not treat the
audiotapes as the official minutes, when typewritten minutes were prepared, reviewed, and
approved by the public body. Id. at 57-58. Therefore, we will limit our review to the
approved, written minutes of the board to determine whether the board properly entered into
executive session at the three challenged meetings.
{¶ 57} With regard to the executive session on January 17, 2011, the written minutes
indicate the board voted to hold an executive session about negotiations with employees,
compensation and other terms and conditions of employment. No one alleges that this
stated purpose was not a proper basis for entering into an executive session.
{¶ 58} In previous aspects of this appeal, the parties asked this court to address
certain issues by reviewing the approved minutes of the January 17, 2011 meeting. Young
argued that the stated purpose of the executive session on that date was not sufficiently
related to the published purpose of the special meeting. Therefore, all of the issues raised by
way of summary judgment will be reviewed with these minutes as approved.
{¶ 59} Construing the evidence most favorably for Young, the non-moving party, we
find that reasonable minds could only conclude that the board entered into an executive
session on January 17, 2011, to consider negotiations with employees and their
- 16 -
Warren CA2012-02-013
compensation, etc. The board is entitled to summary judgment on this issue.
{¶ 60} Turning now to the specific executive sessions for the meetings on April 20,
2009, and May 17, 2010, we find the board was not entitled to summary judgment. As we
previously noted, a public body may convene in executive session only after a motion and a
vote that identifies the permissible topic, and the executive session may then be held for the
sole purpose of the consideration of the enumerated exceptions. See R.C. 121.22(G); Long,
92 Ohio St.3d at 59.
{¶ 61} The written and approved minutes of the May 17, 2010 meeting indicate no
stated purpose for the executive session at issue. Clearly, this executive session was held in
violation of R.C. 121.22, and the board was not entitled to summary judgment.
{¶ 62} The written and approved minutes for the meeting of April 20, 2009, indicate
the board held an executive session to consider "personnel" issues.
{¶ 63} If a public body will hold an executive session for the purpose of discussing one
or more of the matters listed in R.C. 121.22(G)(1) concerning personnel, the public body
must specify in its motion and vote, which of the particular matters listed in subdivision (G)(1)
the public body will discuss. See Jones, 1995 WL 411842 (reference to "police personnel
issues" insufficient to satisfy the notice requirement of R.C. 121.22[G][1]).
{¶ 64} The Ohio Supreme Court in Long stated that the public body that uses such
general terms as "personnel" or "personnel and finances," instead of one or more of the
specified statutory purposes, violates R.C. 121.22(G)(1). Long at 59; see Boyce, 2009-Ohio-
6993 at ¶ 70 (executive session called "to consider confidential legal matters" is insufficient
notice the public body intended to discuss "pending or imminent court action" under R.C.
121.22[G][3]).
{¶ 65} Accordingly, we find that the board was not entitled to summary judgment on
the issues pertaining to the April 20, 2009, and May 17, 2010, executive sessions. The grant
- 17 -
Warren CA2012-02-013
of summary judgment to the board is reversed.
{¶ 66} The assignment of error is sustained in part, and overruled in part.
{¶ 67} The summary judgment granted to the board is affirmed to the extent of the
finding that the board did not violate the open meetings act and properly stated the purpose
of the executive session of their January 17, 2011 special meeting, and reversed in all other
respects. Summary judgment is granted to Young to the extent the board violated the open
meetings act by exceeding the scope of the published purpose of its January 17, 2011
special meeting and failing to approve minutes of its January 17, 2011, January 24, 2011,
January 31, 2011, and February 22, 2011, meetings according to law. This cause is, in all
other respects, reversed and remanded for further proceedings according to law.
HENDRICKSON, P.J., and RINGLAND, J., concur.
- 18 -
State ex rel. Young v. Lebanon City School Dist. Bd. of Edn.
Combined Opinion