[Cite as State ex rel. More Bratenahl v. Bratenahl, 2017-Ohio-8484.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 105281
STATE OF OHIO EX REL.
MORE BRATENAHL, ET AL.
RELATORS-APPELLANTS
vs.
VILLAGE OF BRATENAHL, OHIO, ET AL.
RESPONDENTS-APPELLEES
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-16-857888
BEFORE: Kilbane, J., Keough, A.J., and McCormack, J.
RELEASED AND JOURNALIZED: November 9, 2017
ATTORNEY FOR APPELLANT
Christopher P. Finney
Finney Law Firm, L.L.C.
4270 Ivy Pointe Boulevard, Suite 225
Cincinnati, Ohio 45245
ATTORNEYS FOR APPELLEE
David J. Matty
Mark B. Marong
Shana Samson
Matty Henrikson & Greve, L.L.C.
55 Public Square, Suite 1775
Cleveland, Ohio 44113
MARY EILEEN KILBANE, J.:
{¶1} Relator-appellant, state of Ohio ex rel. Patricia Meade (“Meade”), appeals
from the trial court’s decision granting summary judgment in favor of
respondents-appellees, the village of Bratenahl (“Bratenahl”), Mayor John Licastro, and
Councilmembers Mary Beckenbach, James Puffenberger, Erin Smith, Geoffrey Williams,
and Marla Murphy (collectively referred to as “Bratenahl Councilmembers”). For the
reasons set forth below, we affirm.
{¶2} In January 2016, Meade, a Bratenahl resident, and State ex rel. MORE
Bratenahl, a community news publication disseminated by Meade, filed a complaint
against Bratenahl and its councilmembers (collectively referred to as “Bratenahl
respondents”) alleging that they violated or threatened to violate various provisions of
Ohio’s Open Meetings Act (“OMA”) by casting secret ballots when selecting the
Bratenahl Council President pro tempore in January 2015. 1 The OMA, which is
popularly known as the Sunshine Law, mandates that all meetings of any public body are
to be public meetings open to the public at all times. R.C. 121.22(C). Meade sought
injunctive relief and an award of civil forfeiture and attorney fees.
{¶3} In April 2016, Meade filed an amended complaint, naming Bratenahl
Mayor John Licastro as a respondent and adding three counts that expanded on the
alleged violations of the OMA. Count 2 alleged that Licastro, Murphy, Puffenberger,
1InJuly 2016, State ex rel. MORE Bratenahl voluntarily dismissed all of its
claims against defendants, leaving Meade as the sole plaintiff.
and Williams threatened to violate the OMA by failing to keep and maintain minutes of
the Bratenahl Council Finance Committee for the meetings held on January 19, 2016,
February 16, 2016, March 14, 2016, and April 18, 2016. In Counts 3 and 4, Meade
alleges that Bratenahl Council conducted public business in illegal executive sessions in
violation of the OMA on August 19, 2015 (Count 3) and November 19, 2014 (Count 4).2
{¶4} Meade sought a declaratory judgment that the Bratenahl Councilmembers
violated or threatened to violate the OMA and sought an injunction prohibiting the
councilmembers from conducting any votes by secret ballot, unless authorized by Ohio
law, and mandating all defendants to maintain and prepare accurate council meeting
minutes. Meade further sought a civil forfeiture fee of $500 for each distinct violation or
threatened violation of the OMA, as well as court costs and attorney fees.
{¶5} In September 2016, Meade moved for summary judgment. In her motion,
Meade alleges the following three separate violations or threatened violations of the
OMA by the Bratenahl respondents:
(i) using secret ballots to conduct official business of [Bratenahl
Council];
(ii) failing to keep and maintain minutes of the [Bratenahl Council
Finance Committee,] which contain sufficient facts and information
so as to permit the public to understand and appreciate the rationale
behind the Committee’s actions; and
(iii) during the course of a public meeting [Bratenahl Council] held on
August 19, 2015, conducting public business of the Council in an
2Meade dismissed Count 4 of the amended complaint in December 2016.
illegal executive session and/or entering in such executive session in
violation of the requirements of the [OMA].
{¶6} The Bratenahl respondents opposed Meade’s motion for summary judgment
and filed their own cross-motion for summary judgment. In their motion, the Bratenahl
respondents argued that Meade failed to meet her burden of persuasion by a
preponderance of the evidence that they violated or threatened to violate the OMA.
{¶7} In December 2016, the trial court denied Meade’s motion for summary
judgment and granted summary judgment in favor of the Bratenahl respondents.
{¶8} It is from this order that Meade appeals, raising the following two
assignments of error, which shall be discussed together:
Assignment of Error One
The trial court erred in granting summary judgment in favor of [the
Bratenahl respondents].
Assignment of Error Two
The trial court erred in denying summary judgment in favor of [Meade].
{¶9} Within these assigned errors, Meade argues that the evidence establishes
multiple violations or threatened violations of the OMA by the Bratenahl respondents.
Specifically, the Bratenahl respondents: (1) used secret ballots to conduct official
business of council; (2) failed to keep and maintain minutes of the Bratenahl Council
Finance Committee; and (3) conducted public business in an illegal session on August 19,
2015. As a result, Meade contends that trial court erred when it denied her summary
judgment motion and granted summary judgment in favor of the Bratenahl respondents.
Standard of Review — Summary Judgment
{¶10} Appellate review of summary judgment is de novo. Grafton v. Ohio Edison
Co., 77 Ohio St.3d 102, 105, 1996-Ohio-336, 671 N.E.2d 241. Summary judgment is
appropriate under Civ.R. 56 when: (1) there is no genuine issue of material fact; (2) the
moving party is entitled to judgment as a matter of law; and (3) viewing the evidence
most strongly in favor of the nonmoving party, reasonable minds can come to but one
conclusion and that conclusion is adverse to the nonmoving party. Temple v. Wean
United, Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1977), citing Civ.R. 56(C).
{¶11} Once the moving party satisfies its burden, the nonmoving party “may not
rest upon the mere allegations or denials of the party’s pleadings, but the party’s response,
by affidavit or as otherwise provided in this rule, must set forth specific facts showing
that there is a genuine issue for trial.” Civ.R. 56(E); Mootispaw v. Eckstein, 76 Ohio
St.3d 383, 385, 1996-Ohio-389, 667 N.E.2d 1197. Doubts must be resolved in favor of
the nonmoving party. Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 358-359,
1992-Ohio-95, 604 N.E.2d 138.
The OMA
{¶12} R.C. 121.22 requires public bodies in Ohio to take official action and
conduct all deliberations on official business in open meetings where the public can
attend and observe such deliberations. Public bodies must provide advance notice to the
public, indicating where and when the meetings will occur and, in the case of special
meetings, state the specific topics the body will discuss. R.C. 121.22(F). “A plain
reading of R.C. 121.22 reveals the legislature’s intent to require that all public bodies
generally conduct their meetings in the open so that the public can have access to the
business discussed or transacted therein.” Wyse v. Rupp, 6th Dist. Fulton No.
F-94-19,1995 Ohio App. LEXIS 4008,11-12 (Sept. 15, 1995). “Its purpose is to assure
accountability of elected officials by prohibiting their secret deliberations on public
issues.” State ex rel. Cincinnati Enquirer v. Hamilton Cty. Commrs., 1st Dist. Hamilton
No. C-010605, 2002-Ohio-2038, ¶ 2, citing State ex rel. Cincinnati Post v. Cincinnati, 76
Ohio St.3d 540, 668 N.E.2d 903 (1996). However, if specific procedures are followed,
public officials may discuss certain sensitive information privately in conformity with
R.C. 121.22(G). Id. at ¶ 2-3.
{¶13} The party alleging a violation of the OMA must establish that the public
body held a meeting with a majority of its members and that the meeting improperly
excluded the public. State ex rel. Hardin v. Clermont Cty. Bd. of Elections,
2012-Ohio-2569, 972 N.E.2d 115, ¶ 22-24 (12th Dist.), citing State ex rel. Stern v. Butler,
7th Dist. Jefferson No. 98-JE-54, 2001-Ohio-3404; State ex rel. Sigall v. Aetna, 45 Ohio
St.2d 308, 345 N.E.2d 61 (1976). The burden then shifts to the public body to produce
evidence demonstrating that the meeting at issue properly fell within one of the statutory
exceptions. Id. at ¶ 25.
Election of President Pro Tempore
{¶14} Meade first argues that the Bratenahl respondents violated the OMA at the
January 21, 2015 Bratenahl Council meeting when the Bratenahl councilmembers used
“secret written ballots” to elect the president pro tempore.
{¶15} In the instant case, a review of the record reveals that two councilmembers
were nominated to serve as president pro tempore at the January 2015 meeting.
Councilmember Beckenbach then expressed her desire to take the vote by secret ballot.
In response, then-Councilmember Laura Bacci inquired as to whether voting by secret
ballot was legal. The members of the Bratenahl Council proceeded to vote by
handwriting their respective votes and names on a piece of paper and handing their votes
to David Matty (“Matty”), Bratenahl’s Solicitor. Matty reviewed and counted the
ballots. After counting the votes, Matty declared that another vote had to be taken
because a vote had been cast for an individual who was not nominated for president pro
tempore. Matty advised the councilmembers that they could only vote for one of the two
individuals that had been nominated for president pro tempore.
{¶16} A second set of ballots was then cast by the councilmembers. Matty
reviewed and counted the second set of ballots. Thereafter, Matty announced that the
results of the second set of ballots for president pro tempore resulted in a tie vote. As a
result, the councilmembers cast a third set of ballots in the same manner as the first and
second set of votes. After Matty reviewed and counted the third set of ballots, he
announced that Councilmember Puffenberger had been elected president pro tempore of
Bratenahl Council. Councilmember Puffenberger served in the capacity of president pro
tempore until December 31, 2015. Councilmember Puffenberger was reappointed as
president pro tempore by a public vote on January 21, 2016.
{¶17} In support of her argument, Meade relies on 2011 Ohio Atty. Gen. Ops.
No. 2011-038 for the proposition that secret ballots are a violation of the OMA. In this
opinion, the Ohio Attorney General was specifically asked whether it was permissible for
the Ohio Board of Education to vote by secret ballot in an open meeting. The Attorney
General concluded that “the State Board of Education could not vote in an open meeting
by secret ballot.” Id. In reaching his decision, the Attorney General stated:
R.C. 121.22 does not address explicitly the use of secret ballots by the
members of a public body, nor does any other provision of the Revised
Code address the use of secret ballots by the Board. Voting by secret ballot
is a process of voting by slips of paper on which the voter indicates his vote.
[Robert’s Rules of Order, Newly Revised, 412 (11th Ed.2011)]; Black’s
Law Dictionary 143 (6th Ed.1990). Voting by secret ballot is “used when
secrecy of the members’ votes is desired.” Robert’s Rules of Order, Newly
Revised, at 412. When a secret ballot is used, the vote “is cast in such a
manner that the person expressing such choice cannot be identified with the
choice expressed.” Black’s Law Dictionary 143 (6th Ed.1990); see also
Webster’s Third New International Dictionary 2052 (unabr. ed. 1993)
(defining “secret” as something “kept hidden” or “kept from the knowledge
of others, concealed as part of one’s private knowledge”).
No Ohio courts and only one Attorney General opinion have confronted the
use of secret ballot voting by a public body that is subject to the
requirements of R.C. 121.22. See 1980 Op. Att’y Gen. No. 80-083
(syllabus, paragraph 4) (“R.C. 121.22 does not require a roll call vote or
prohibit voting at a meeting subject to that section by ‘secret ballot’”).
(Emphasis added.) Id. at 3.
{¶18} The Attorney General went on to state that “[i]f the votes of the individual
members of a public body are denied public scrutiny, the public is unable to properly
evaluate the decision-making of the public body and hold its members responsible for
their decisions.” Id. at 5.
{¶19} In the instant case, the ballots were handwritten in open session and
included the name of the nominated individual as well as the name of each
councilmember issuing the vote. The written ballots were then maintained by Bratenahl
as a public record and subsequently produced to Meade. Because the votes were cast in
open session, identify each councilmember’s name with each respective vote and were
made public record, the votes were not“secret” like the votes in the Attorney General’s
opinion. Here, the name of the nominated individual and the respective councilmember
were not concealed from the public, and the public was not denied the knowledge of
Bratenahl’s decision-making process. Based on these circumstances, Meade is unable to
establish her burden by the preponderance of the evidence that the Bratenahl respondents
violated or threatened to violate the OMA on January 21, 2015.
Finance Committee Minutes
{¶20} Meade next argues that the Bratenahl respondents violated or threatened to
violate the OMA when the Finance Committee’s meeting minutes failed to contain
sufficient facts and information to permit the public to understand and appreciate the
rationale behind the committee’s actions. Specifically, Meade contends certain meeting
minutes indicate that various items came before the committee, the action taken thereon,
and the votes of the committee members on a motion to effectuate that action, but when
consideration is given to the length of these meetings and the limited number of items
considered, there clearly would have been significantly more involved than simply a
motion and vote concerning each item. Meade acknowledges that the audiovisual
recordings she obtained of the meetings fully revealed the discussions and information at
each meeting.
{¶21} R.C. 121.22(C) provides that
[t]he 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. The minutes need only reflect the general subject matter of
discussions in executive sessions authorized under division (G) or (J) of this
section.
{¶22} The Ohio Supreme Court has defined “minutes” by its common definition:
“‘a series of brief notes taken to provide a record of proceedings * * *: an official record
composed of such notes. Webster’s Third New International Dictionary (1986) 1440.’”
White v. Clinton Cty. Bd. of Commrs., 76 Ohio St.3d 416, 421, 667 N.E.2d 1223, fn. 3
(1996).
{¶23} White involved a request of certain meeting minutes of the Clinton County
Board of Commissioners, and the court’s interpretation of R.C. 305.10 (Record of
proceedings by Board of County Commissioners) and its interplay with R.C. 121.22 and
149.43 (Ohio Public Records Act).3 White argued that these statutes impose a duty on
boards of county commissioners to prepare minutes that reflect the substance of their
3Whitesought a writ of mandamus compelling the Clinton County Board of
Commissioners to prepare complete and accurate minutes of all Board policies.
The minutes provided by the Board failed to document new policies adopted by the
Board and were missing a page.
meetings and provide some indication of the nature and direction of their discussions.
The court agreed, and concluded that these statutes, when read together, impose a duty on
boards of county commissioners to maintain a full and accurate record of their
proceedings. Id. at 418. In reaching its decision, the White court stated:
We recognize that it is not the business of this court to micro-manage the
public record-keeping procedures of local governments; public bodies
should be trusted with a certain degree of latitude in the preparation of
minutes and other records of their proceedings. Accordingly, we resist the
temptation to prescribe any particular means of satisfying R.C. 121.22 and
305.10. Audio- or videotape recordings, word-for-word transcripts, even
abstracts of the discussions indicating the identity of the speakers and the
chronology and substance of their statements, are all legitimate means of
satisfying the requirements of R.C. 121.22 and 305.10. Accordingly, we
refrain from laying down specific guidelines, other than the dictate that for
public records maintained under R.C. 121.22 and 305.10, full and accurate
minutes must contain sufficient facts and information to permit the public to
understand and appreciate the rationale behind the relevant public body’s
decision.
Id. at 424.
{¶24} In the instant case, the meeting minutes in question provide an accurate and
adequate record of the Finance Committee’s proceedings, recommendations, and the
Bratenahl Council’s actions on the same. The minutes at issue reference the ordinance
and resolution numbers being considered for recommendation to council, identification of
each motion, some discussion, and the votes of the committee members. Additionally,
Meade acknowledges that the meetings were audio recorded and fully revealed the
discussions and information at each meeting. Under White, “[a]udio- or videotape
recordings * * * are all legitimate means of satisfying the requirements of R.C. 121.22.”
Id. at 424.
{¶25} Based on these circumstances, Meade failed to establish a violation or
threatened violation with regard to the Finance Committee’s minutes.
Executive Session
{¶26} Lastly, Meade argues that the Bratenahl respondents did not comply with the
conditions precedent for holding an executive session at the August 19, 2015 Bratenahl
Council meeting.
{¶27} An executive session is a closed-door conference convened by a public
body, after a roll call vote, that is attended by only the members of the public body (and
those they invite), that excludes the public. R.C. 121.22(G). The OMA allows for
executive sessions in certain limited circumstances. R.C. 121.22(G)(1)-(8); State ex rel.
Long v. Cardington Village Council, 92 Ohio St.3d 54, 2001-Ohio-130, 748 N.E.2d 58.
As relevant here, they include the consideration of the purchase of property for public
purposes and conferences with an attorney concerning disputes involving the public body
that is the subject of pending or imminent court action. R.C. 121.22(G)(2)-(3).
{¶28} Meade acknowledges that the record provides an after-the-fact assertion that
a motion to enter executive session was made, but contends that the official record fails to
indicate whether the motion to enter executive session stated an actual purpose and
whether there was a roll call vote.
{¶29} However, a review of the audio recording of the August 19, 2015 Bratenahl
Council Meeting evidences that the motion and roll call vote to hold executive session
were clearly taken. The motion and roll call vote took place before the court reporter
began transcribing the record. The roll call vote is also reflected in the Bratenahl Clerk’s
notes, which was provided during discovery. Additionally, the transcript of the August
19, 2015 meeting indicates council’s entrance into executive session. Mayor Licastro
asked that the record reflect that council went into executive session to talk about
acquisition of land and threatened litigation, which is permissible under R.C.
121.22(G)(2)-(3). Mayor Licastro also states that the motion to enter executive session
was made by Councilmember Puffenberger and seconded by Councilmember Murphy.
Mayor Licastro then states that Councilmember Puffenberger made the motion to return
to the public session and the motion was seconded by then-Councilmember Bacci. The
foregoing satisfies the statutory requirements for entering an executive session.
{¶30} In light of the foregoing, we find that Meade offered no evidence to rebut
the presumption that the Bratenahl respondents did not comply with the OMA.
Therefore, we find that the trial court properly granted summary judgment in favor of the
Bratenahl respondents and properly denied Meade’s motion for summary judgment.
{¶31} The first and second assignments of error are overruled.
{¶32} Judgment is affirmed.
It is ordered that appellees recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
MARY EILEEN KILBANE, JUDGE
KATHLEEN ANN KEOUGH, A.J., and
TIM McCORMACK, J., CONCUR