State ex rel. Ames v. Portage Cty. Bd. of Commrs.

[Cite as State ex rel. Ames v. Portage Cty. Bd. of Commrs., 2019-Ohio-3730.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

PORTAGE COUNTY, OHIO

STATE OF OHIO ex rel. : OPINION
BRIAN M. AMES,
:
Relator-Appellant,
: CASE NO. 2019-P-0016
- vs -
:
PORTAGE COUNTY BOARD OF
COMMISSIONERS, :

Respondent-Appellee. :

Civil Appeal from the Portage County Court of Common Pleas, Case No. 2016 CV
00582.

Judgment: Affirmed in part, reversed in part, and remanded.

Brian M. Ames, pro se, 2632 Ranfield Road, Mogadore, OH 44260 (Relator-Appellant).

Victor V. Vigluicci, Portage County Prosecutor, and Timothy J. Piero, Assistant
Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Respondent-
Appellee).

MARY JANE TRAPP, J.

{¶1} Appellant, Brian Ames (“Mr. Ames”), appeals the judgment of the Portage

County Court of Common Pleas granting summary judgment in favor of appellees, the

Portage County Board of Commissioners (the “Board”), and denying him summary

judgment in his civil action against the Board alleging multiple violations of Ohio’s Open
Meetings Act (the “OMA”). Mr. Ames also assigns as error the trial court’s granting of

the Board’s motion for a protective order regarding his discovery requests.

{¶2} After a careful review of the record and pertinent law, we find: (1) we have

previously addressed Count LV of Mr. Ames’ complaint in Case No. 2019-P-0015, and

therefore his appeal with respect to this claim for relief is dismissed as moot; (2) the trial

court incorrectly interpreted R.C. 121.22(G)(1) and thus erred in granting summary

judgment to the Board on the remaining counts of Mr. Ames’ complaint; (3) the trial court

properly denied Mr. Ames’ motion summary judgment because he failed to meet his

burden under Civ.R. 56(C) to show the absence of a genuine issue of material fact, i.e.,

whether the Board reasonably intended to discuss all of the permissible purposes listed

in the meeting minutes; and (4) Mr. Ames did not affirmatively demonstrate that the trial

court abused its discretion in granting the Board’s motion for a protective order.

{¶3} More specifically, the trial court erred in holding that the Board necessarily

stated an acceptable purpose under R.C. 121.22(G)(1) by reading the entire list of

permissible purposes verbatim. The statute mandates that the Board specifically state in

its motions and votes the particular permitted purpose or purposes that the Board

reasonably intends to discuss during executive session.

{¶4} We understand that given the litigation history between Mr. Ames and the

Board, the Board, in good faith, sought to insulate itself from more litigation by erring on

the side of inclusiveness, but for future meetings the Board must be more precise.

{¶5} For example, if the purpose is to discuss a complaint about a public

employee, the Board should state that it is going into executive session to consider

investigation of charges or complaints against a public employee and to consider

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dismissal, discipline, or demotion of that public employee, who has not requested a public

hearing.

{¶6} Thus, we affirm in part, reverse in part, and remand to the trial court for

further proceedings consistent with this opinion.

Substantive History and Procedural Background

{¶7} On June 28, 2016, Mr. Ames, pro se, filed a verified complaint in the Portage

County Court of Common Pleas (Case No. 2016 CV 00582) alleging the Board violated

the OMA on multiple occasions.1

{¶8} Specifically, Mr. Ames alleged that on 42 separate occasions from January

5, 2016 through June 14, 2016, prior to entering executive sessions to consider personnel

matters, the Board read from R.C. 121.22(G)(1) and stated all permissible purposes set

forth in the statute without specifying which of those permissible purposes would be

discussed. Mr. Ames further alleged that the Board’s practice constituted a “threat” to

violate R.C. 121.22(G)(1).

{¶9} Mr. Ames sought: (1) a declaratory judgment that the Board violated the

OMA, (2) a $500 civil forfeiture for each violation, (3) an order to permanently enjoin the

Board from violating the OMA, (4) an order that the Board annotate the meeting minutes

to reflect the approved purposes for each executive session, and (5) court costs and

reasonable attorney fees.

1. Mr. Ames subsequently filed a separate action in the Portage County Court of Common Pleas (Case
No. 2017 CV 00415) alleging that the Board committed 76 violations of the OMA from July 19, 2016 through
April 4, 2017 and on November 4, 2015. The trial court subsequently granted summary judgment to the
Board for the same reasons discussed herein and denied summary judgment to Mr. Ames. Mr. Ames’
appeal regarding that case is before this court in Case No. 2019-P-0015.

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 {¶10} Mr. Ames also served discovery requests on the Board consisting of

requests for admission, interrogatories, and requests for production of documents.

{¶11} The Board filed an answer generally denying Mr. Ames’ allegations. The

Board also filed a motion for protective order and objection to discovery.

{¶12} Mr. Ames filed a motion to disqualify the Board’s counsel, a motion to strike

and brief in opposition to the Board’s motion/objection, a motion for “discipline” against

the Board pursuant to the trial court’s local rules, and a motion for a preliminary injunction.

{¶13} Without leave of court, Mr. Ames filed an amended complaint alleging 13

additional violations of the OMA, for a total of 55 alleged violations from January 5, 2016

through July 19, 2016 (Counts I through LV), and one alleged threat to violate the statute

(Count LVI). Count LV of Mr. Ames’ amended complaint alleges the same violation

regarding the Board’s meeting of July 19, 2016 as Count I of his complaint in Case No.

2017 CV 00415.

{¶14} The Board filed a motion to dismiss, or in the alternative, for summary

judgment, along with a memorandum in support. The Board admitted that prior to the

executive sessions referenced in Mr. Ames’ amended complaint, it read from R.C.

121.22(G)(1). The Board argued that this practice complied with the OMA.

{¶15} Mr. Ames filed a brief in opposition as well as a cross motion for summary

judgment. Mr. Ames argued that the Board’s practice of “merely reiterat[ing] the laundry

list of possible matters from R.C. 121.22(G)(1) without specifying which of those purposes

[will] be discussed in executive session” did not comply with R.C. 121.22(G)(1) based on

the Supreme Court of Ohio’s decision in State ex rel. Long v. Cardington Village Council,

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92 Ohio St.3d 54 (2001). Mr. Ames argued he was entitled to judgment as a matter of

law on “each violation” set forth in his complaint.

{¶16} Mr. Ames filed an original action in procedendo in the Supreme Court of

Ohio, which was docketed as State ex rel. Ames v. Reinbold, Case No. 2017-1483,

requesting an order that the trial judge rule on pending motions in the underlying case.

The court initially referred the matter to mediation, see 11/07/2017 Case Announcements,

2017-Ohio-8446, and subsequently dismissed the action. See 06/27/2018 Case

Announcements, 2018-Ohio-2418.

{¶17} Mr. Ames also filed an affidavit of disqualification with the Chief Justice of

the Supreme Court of Ohio alleging that the visiting trial judge was biased in favor of the

Board’s counsel, which the Chief Justice denied in In re Disqualification of Reinbold, 152

Ohio St.3d 1221, 2017-Ohio-9427.

{¶18} Following a hearing regarding, among other things, the availability of videos

of Board meetings, the trial court issued a judgment entry indicating that the Board would

confirm its contention that it did not retain copies of such videos.

{¶19} Following an additional hearing, the trial court issued a journal entry

directing the Board to make available to Mr. Ames a flash drive containing videos of the

Board’s meetings for fiscal year 2016.

{¶20} The trial court issued another order requiring the Board to provide the court

with the meeting minutes so it could determine their evidentiary value. Mr. Ames filed an

“objection,” alleging the trial court was attempting to independently investigate facts in

violation of Jud.Cond.R. 2.9(C). Mr. Ames also filed an “objection” to the trial court’s

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alleged “disregard of the Ohio Rules of Civil Procedures” relating to pending motions and

discovery.

{¶21} The trial court issued an order and journal entry converting the Board’s

motion to dismiss to a motion for summary judgment and permitting the parties to submit

evidence consistent with Civ.R. 56(C) and to file additional pleadings, if necessary.

{¶22} Mr. Ames filed a motion requesting that the trial court issue an order

compelling the Board to either complete discovery or stipulate to relevant facts.

{¶23} The Board filed an answer to Mr. Ames’ amended complaint generally

denying his allegations. The Board also filed a renewed motion for a protective order and

objection to discovery.

{¶24} The trial court issued an order marking the relevant meeting minutes as “the

Court’s Exhibit AA” and admitting them into evidence. The trial court then filed the

meeting minutes with the clerk of courts.

{¶25} Without leave of court, Mr. Ames filed a proposed second amended verified

complaint. He also filed a motion to strike and an opposition to the Board’s renewed

motion for a protective order and objection to discovery, as well as renewed discovery

requests.

{¶26} The Board filed a notice of submission into evidence a flash drive containing

video of the Board’s meetings for fiscal year 2016.

{¶27} Following a hearing on discovery matters, the trial court issued a judgment

entry denying Mr. Ames’ motions to compel discovery, to amend his verified complaint,

and to strike the Board’s renewed motion for a protective order. The trial court’s entry

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also granted, in part, the Board’s motion for a protective order by limiting discovery to the

meeting minutes and the flash drive.

{¶28} The Board filed a notice of submission of its responses to Mr. Ames’

discovery requests.

{¶29} Mr. Ames filed a motion to disqualify the visiting trial judge, alleging that he

“repeatedly demonstrated an inability to uphold and apply the law.”

{¶30} The Board filed a motion for summary judgment and a brief in opposition to

Mr. Ames’ previously filed motion for summary judgment. The Board admitted in briefing

it held several meetings as indicated in Mr. Ames’ amended complaint and it “read

verbatim from R.C. 121.22(G)(1) to move into executive session,” as corroborated by the

minutes marked as Exhibit AA and the flash drive. The Board again argued that its

practice complied with the OMA.

{¶31} Mr. Ames filed original actions for writs of procedendo in this court

requesting orders that the trial judge rule on pending motions in the underlying case and

another unrelated case, which we ultimately dismissed as moot in State ex rel. Ames v.

Reinbold, 11th Dist. Portage Nos. 2019-P-0009 & 2019-P-0010, 2019-Ohio-1169.

{¶32} The trial court subsequently issued a judgment entry granting the Board’s

motion for summary judgment and denying Mr. Ames’ motion for summary judgment. The

trial court stated as follows:

{¶33} “R.C. 121.22(G)(1) is one of eight such matters for which a public body may

enter executive session. There are no sub-sections or sub-parts to R.C. 121.22(G)(1).

R.C. 121.22(G) is one paragraph that constitutes one of eight appropriate grounds for

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entering executive session under R.C. 121.22. [The Board] has used R.C. 121.22(G)(1)

including its stated purposes.

{¶34} “[Mr. Ames] admits at ¶LVI of his Complaint that [the Board] as a matter of

practice read the statutory language of R.C. 121.22(G)(1) before entering executive

session. As [the Board] has read the exact language of R.C. 121.22(G)(1), [the Board]

has necessarily stated an acceptable purpose pursuant to R.C. 121.22(G)(1).”

{¶35} The trial court concluded the Board committed no violations of the OMA and

was entitled to judgment as a matter of law.

{¶36} Mr. Ames now appeals and presents the following assignments of error for

our review:

{¶37} “[1.] The Trial Court erred in granting summary judgment in favor of the

Board and in denying summary judgment to Ames on cases 2016CV00582 and

2017CV00415 by disregarding the opinion of the Supreme Court of Ohio and substituting

its own reading of R.C. 121.22(G)(1).

{¶38} “[2.] The Trial Court erred in granting the Board’s protective order and in

denying discovery to Ames on case 2016CV00582.”

Grant of Summary Judgment to the Board

{¶39} In his first assignment of error, Mr. Ames argues the trial court erred by

granting summary judgment to the Board.

Standard of Review

{¶40} We review de novo a trial court’s order granting summary judgment.

(Citations omitted.) Sabo v. Zimmerman, 11th Dist. Ashtabula No. 2012-A-0005, 2012-

Ohio-4763, ¶9. “A reviewing court will apply the same standard a trial court is required to

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apply, which is to determine whether any genuine issues of material fact exist and whether

the moving party is entitled to judgment as a matter of law.” (Citations omitted.) Id.

{¶41} “Since summary judgment denies the party his or her ‘day in court’ it is not

to be viewed lightly as docket control or as a ‘little trial’. The jurisprudence of summary

judgment standards has placed burdens on both the moving and the nonmoving party.

In Dresher v. Burt [75 Ohio St.3d 280 (1996)], the Supreme Court of Ohio held that the

moving party seeking summary judgment bears the initial burden of informing the trial

court of the basis for the motion and identifying those portions of the record before the

trial court that demonstrate the absence of a genuine issue of fact on a material element

of the nonmoving party's claim. The evidence must be in the record or the motion cannot

succeed. The moving party cannot discharge its initial burden under Civ.R. 56 simply by

making a conclusory assertion that the nonmoving party has no evidence to prove its

case but must be able to specifically point to some evidence of the type listed in Civ.R.

56(C) that affirmatively demonstrates that the nonmoving party has no evidence to

support the nonmoving party's claims.” Welch v. Ziccarelli, 11th Dist. Lake No. 2006-L-

229, 2007–Ohio–4374, ¶40.

{¶42} The “portions of the record * * * are those evidentiary materials listed in

Civ.R. 56(C) * * * that have been filed in the case,” which are “pleadings, depositions,

answers to interrogatories, written admissions, affidavits, transcripts of evidence, and

written stipulations of fact.” Dresher at 292; Civ.R. 56(C).

{¶43} The trial court may consider a type of document not expressly mentioned in

Civ.R. 56(C) if such document is incorporated by reference in a properly framed affidavit

pursuant to Civ.R. 56(E). HSBC Mtge. Servs., Inc. v. Edmon, 6th Dist. Erie No. E-11-

9
046, 2012-Ohio-4990, ¶8. There is no specific requirement that the materials supporting

summary judgment be attached to the motion for summary judgment as long as they have

been filed in the case prior to the entry of judgment. Millstone Condominiums Unit Owners

Assn. v. 270 Main St., 11th Dist. Lake No. 2011-L-078, 2012-Ohio-2562, ¶61.

{¶44} “If the moving party fails to satisfy its initial burden, the motion for summary

judgment must be denied. If the moving party has satisfied its initial burden, the

nonmoving party has a reciprocal burden outlined in the last sentence of Civ.R. 56(E) to

set forth specific facts showing there is a genuine issue for trial. If the nonmoving party

fails to do so, summary judgment, if appropriate shall be entered against the nonmoving

party based on the principles that have been firmly established in Ohio for quite some

time in Mitseff v. Wheeler (1988), 38 Ohio St.3d 112.” Ziccarelli at ¶40.

The OMA

{¶45} The OMA is set forth in R.C. 121.22 and provides that the statute shall be

liberally 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). The intent of the OMA is to prevent public

bodies from engaging in secret deliberations on public issues with no accountability to the

public. State ex rel. Cincinnati Post v. Cincinnati, 76 Ohio St.3d 540, 544 (1996).

{¶46} R.C. 121.22(C) sets forth the basic requirement that meetings of public

bodies in Ohio are public meetings that must be open to the public at all times. R.C.

121.22(G) recognizes that certain sensitive information is best discussed privately among

members of a public body. Cincinnati Post at 544. Thus, the statute allows for “executive

sessions” of a public body, where the public may be barred. Id.

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 {¶47} After following certain procedures, a public body may discuss certain

subject matters privately in an executive session. The permissible subject matters are

set forth in R.C. 121.22(G), subsections (1) through (8). Relevant to this case is R.C.

121.22(G)(1), which relates to an executive session to consider personnel-related issues,

and states as follows:

{¶48} “(G) * * * [T]he 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:

{¶49} “(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.)

{¶50} Courts have held that the exceptions in R.C. 121.22(G) are to be strictly

construed. See, e.g., Gannett Satellite Information Network, Inc. v. Chillicothe Bd. of

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Edn., 41 Ohio App.3d 218 (4th Dist.1988), paragraph one of the syllabus; In re Removal

of Kuehnle, 161 Ohio App.3d 399, 2005-Ohio-2373, ¶93 (12th Dist.); Maddox v. Greene

Cty. Children Servs. Bd. of Dirs., 2d Dist. Greene No. 2013-CA-38, 2014-Ohio-2312, ¶17.

Count LV

{¶51} As previously indicated, Count I of Mr. Ames’ complaint in Case No. 2017

CV 00415 and Count LV of his complaint in the underlying case allege the same violation

regarding the Board’s meeting of July 19, 2016. Since we have already addressed this

claim for relief in our opinion in Case No. 2019-P-0015, Mr. Ames’ appeal with respect to

Count LV is dismissed as moot.

Remaining Counts

{¶52} We next address the trial court’s grant of summary judgment to the Board

on the remaining counts of Mr. Ames’ complaint.

{¶53} The Board argues that its practice of reading from R.C. 121.22(G)(1), as

reflected in the meeting minutes and the flash drive, complied with the OMA.

{¶54} The record shows that the trial court filed the relevant meeting minutes with

the clerk of courts. Although these minutes were not incorporated by reference in a

properly framed affidavit, improper summary judgment evidence may be considered by

the trial court if no objection is made. (Citations omitted.) Millstone, supra, at ¶62.

{¶55} Mr. Ames objected to the trial court’s order that the Board submit the

meeting minutes for review on the grounds that the trial court was engaged in the

improper investigation of facts. However, Mr. Ames did not object to the trial court’s

subsequent order admitting the meeting minutes into evidence or file a motion to strike

12
after the trial court filed them with the clerk. Therefore, the trial court was entitled to

consider the meeting minutes in ruling on the motions for summary judgment. See id.

{¶56} The minutes reflect that at each meeting, the Board stated as follows:

{¶57} “In accordance with the [sic] Ohio Revised Code 121.22(G)(1), it was moved

by [Board member’s name], seconded by [Board member’s name] that the Board of

Commissioners move into executive session 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.”

{¶58} This language mirrors that set forth in the referenced statute. Therefore,

our review of the trial court’s grant of summary judgment to the Board on Mr. Ames’

remaining counts involves the proper interpretation of R.C. 121.22(G)(1).

Principles of Statutory Interpretation

{¶59} Venerable principles of statutory construction require that in construing

statutes, courts must give effect to every word and clause in the statute. State ex rel.

Carna v. Teays Valley Local School Dist. Bd. of Edn., 131 Ohio St.3d 478, 2012-Ohio-

1484, ¶18, citing Boley v. Goodyear Tire & Rubber Co., 125 Ohio St.3d 510, 2010-Ohio-

2550, ¶21. Courts must read words and phrases in context and construe them in

accordance with rules of grammar and common usage and may not restrict, constrict,

qualify, narrow, enlarge, or abridge the General Assembly's wording. (Citations omitted.)

Id. A court should avoid a construction that renders a provision meaningless or

inoperative. Id. at ¶19, citing State ex rel. Myers v. Spencer Twp. Rural School Dist. Bd.

of Edn., 95 Ohio St. 367, 373 (1917). Furthermore, when a statute’s language is clear

13
and unambiguous, courts apply the statute as written, giving effect to its plain meaning.

(Citations omitted.) Id. at ¶20.

{¶60} 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. (Citations omitted.)

Cincinnati Post, supra, at 543.

Interpretation of R.C. 121.22(G)(1)

{¶61} The issue before us is whether the trial court correctly interpreted R.C.

121.22(G)(1) in determining the Board necessarily stated an acceptable purpose under

R.C. 121.22(G)(1) by reading the entire list of permissible purposes prior to entering into

executive sessions. We conclude it did not.

{¶62} As previously indicated, “if a public body holds an executive session

pursuant to division (G)(1) * * *, 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[.]” (Emphasis added.)

R.C. 121.22(G)(1). The trial court’s interpretation of R.C. 121.22(G)(1) omits the statutory

language requiring the Board to state “which one or more of the approved purposes * * *

are the purposes for which the executive session is to be held.” (Emphasis added.) Id.

{¶63} Although no court has interpreted R.C. 121.22(G)(1) under these exact

circumstances, persuasive authority demonstrates a public body must specifically identify

the permitted purpose or purposes for an executive session.

{¶64} In Long, supra, the Supreme Court of Ohio held that a public body violated

R.C. 121.22(G)(1) when it used general terms such as “personnel” and “personnel and

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finances” to describe executive sessions instead of “one or more of the specified statutory

purposes.” Id. at 59. The court also wrote disapprovingly of one of the public body’s

motions that “merely reiterated the laundry list of possible matters from R.C. 121.22(G)(1)

without specifying which of those purposes would be discussed in executive session.”

(Emphasis added.) Id.

{¶65} The Long court relied on the Ohio Attorney General’s interpretation of R.C.

121.22(G)(1), which stated “if the public body is going into 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.” (Emphasis added.) 1988

Ohio Atty.Gen.Ops. No. 88-029, at 2-121, fn. 1. See also 2012 Ohio Atty.Gen.Ops. No.

2012-022, at 2-187 to 2-188 (discussing its prior interpretation); State ex rel. Young v. Bd.

of Edn. of Lebanon School Dist., 12th Dist. Warren No. CA2012-02-013, 2013-Ohio-1111,

¶63 (holding same).

{¶66} The Long court also relied on our decision in Jones v. Brookfield Twp.

Trustees, 11th Dist. Trumbull No. 92-T-4692, 1995 WL 411842 (June 30, 1995), where

we held that a public body’s reference to “police personnel issues” did not comply with

R.C. 121.22(G)(1) because it did not “specify which of the approved purposes was

applicable in [that] instance.” (Emphasis added.) Id. at *3. We recognized that the public

body’s statement was “so broad that it could be used to refer to any of the stated

purposes.” Id. We concluded that adopting such an interpretation of the statute “would

render the express requirement in the statute meaningless” because “a public body would

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never be required to refer to any of the stated purposes prior to holding an executive

session to discuss ‘personnel matters.’” Id.

{¶67} Similarly, in Weisbarth v. Geauga Park Dist., 11th Dist. Geauga No. 2007-

G-2780, 2007-Ohio-6728, we stated R.C. 121.22(G)(1) requires the public body “to be

more specific [than stating ‘personnel’ matters] by denoting the precise type of ‘personnel’

matters it would address, such as hiring, discipline, termination, etc.” (Emphasis added.)

Id. at ¶27.

{¶68} Our sister districts have interpreted R.C. 121.22(G)(1) in a similar fashion.

See Kuehnle, supra, at ¶93 (R.C. 121.22(G)(1) “requires a public body to specify, in detail,

the stated purpose for holding executive session”) (Emphasis added.); Keystone Commt.

v. Switzerland of Ohio School Dist. Bd. of Edn., 7th Dist. Monroe No. 15 MO 0011, 2016-

Ohio-4663, ¶26 (holding same); Tobacco Use Prevention & Control Found. Bd. of

Trustees v. Boyce, 185 Ohio App.3d 707, 2009-Ohio-6993, ¶64 (10th Dist.) (the public

body must “specifically identify the permissible topic”) (Emphasis added.); Maddox, supra,

at ¶18, 23 (“While a public body may not need to use exact statutory language when

stating its purpose for entering into executive session, it must make clear which specific

statutory purpose applies” such as “the dismissal or discipline of a public employee”)

(Emphasis added.); State ex rel. Dunlap v. Violet Twp. Bd. of Trustees, 5th Dist. Fairfield

No. 12-CA-8, 2013-Ohio-2295, ¶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)”) (Emphasis

added.)

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 {¶69} Based on the plain language of the statute, and considering the above

authorities, the trial court erred in holding that the Board necessarily stated an acceptable

purpose under R.C. 121.22(G)(1) by reading the entire list of permissible purposes

verbatim. The statute mandates that the Board specifically state in its motions and votes

the particular permitted purpose or purposes that the Board reasonably intends to discuss

during executive session.

{¶70} Thus, the trial court erred by granting the Board’s motion for summary

judgment with respect to the remaining counts of Mr. Ames’ complaint.

{¶71} Mr. Ames’ first assignment of error has merit in part.

Denial of Summary Judgment to Mr. Ames

{¶72} Within his first assignment of error, Mr. Ames also argues the trial court

erred by denying his motion for summary judgment.

Standard of Review

{¶73} We review a trial court’s order denying summary judgment de novo.

(Citations omitted.) Meeker R&D, Inc. v. Evenflo Co., Inc., 11th Dist. Portage Nos. 2014-

P-0060 & 2015-P-0017, 2016-Ohio-2688, ¶24.

{¶74} As previously indicated, a party moving for summary judgment “bears the

initial responsibility of informing the trial court of the basis for the motion, and identifying

those portions of the record before the trial court which demonstrate the absence of a

genuine issue of fact.” Dresher, supra, at 293.

Burden Shifting in an OMA Case

{¶75} A party who files a complaint alleging a violation of the OMA has the ultimate

burden to prove by a preponderance of the evidence that a public body violated (or

17
threatened to violate) the OMA. (Citations omitted.) State ex rel. Hardin v. Clermont Cty.

Bd. of Elections, 12th Dist. Nos. CA2011-05-045 & CA2011-06-047, 2012-Ohio-2569,

¶24.

{¶76} In an action brought under R.C. 121.22, the plaintiff or relator initially carries

his or her burden by showing that a meeting of the majority of the members of a public

body occurred and that the general public was excluded from that meeting. Id. at ¶25.

Once the plaintiff or relator demonstrates the above, the burden then shifts to the public

body to produce or go forward with evidence that the challenged meeting fell under one

of the exceptions of R.C. 121.22(G). Id. See Carver v. Deerfield Twp., 139 Ohio App.3d

64, 70 (11th Dist.2000), citing Springfield Local School Dist. Bd. of Edn. v. Ohio Assn. of

Pub. School Emp. Local 530, 106 Ohio App.3d 855, 866 (9th Dist.1995). After the public

body comes forward with such evidence, the burden then shifts to the plaintiff or relator

to come forward with evidence that the exception claimed by the public body is not

applicable or valid. Hardin at ¶24.

{¶77} If the plaintiff or relator cannot show that the exception is inapplicable or

invalid, he has failed to prove the public body violated the OMA, i.e., he has failed to meet

his burden of proof. Id. If, on the other hand, the plaintiff or relator can show that the

exception is not applicable or not valid, he has met his burden of proof. Id.

Analysis

{¶78} As previously indicated, the relevant meeting minutes are part of the

record.2 Since the meeting minutes reflect that the Board entered into executive session

2. Mr. Ames argues that these minutes have “no evidentiary value” and “should be stricken from the record
on appeal” because the Board “has not disputed any facts that Ames has set forth in his complaint and
motion for summary judgment.” However, the Board’s answers generally denied the allegations in Mr.

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at each meeting, Mr. Ames met his initial burden of showing that a meeting of the majority

of the members of a public body occurred and that the general public was excluded from

that meeting.

{¶79} Since the meeting minutes also reflect that the Board recited R.C.

121.22(G)(1) prior to entering into each executive session, the Board met its burden to

produce evidence that the challenged meetings fell under one of the exceptions of R.C.

121.22(G). The burden then shifted to Mr. Ames to come forward with evidence that R.C.

121.22(G)(1) is not applicable or valid.

{¶80} The meeting minutes reflect that the Board listed all the permissible

purposes set forth in R.C. 121.22(G)(1). We have determined as a matter of law that the

Board did not necessarily state an acceptable purpose under R.C. 121.22(G)(1) by

reading the entire list of permissible purposes. Rather, the statute mandates that the

Board specifically state in its motions and votes the particular permitted purpose or

purposes that the Board reasonably intends to discuss during executive session.

{¶81} Based on the record before us, however, the actual purpose or purposes

that the Board intended to discuss during each executive session are unclear. There is

no evidence in the record demonstrating that the Board did not reasonably intend to

discuss all of the permissible purposes listed in the meeting minutes. Thus, Mr. Ames

has not identified portions of the record before the trial court which demonstrate the

absence of a genuine issue of material fact. Accordingly, Mr. Ames has failed to meet

Ames’ complaint and amended complaints, and there are no written stipulations of fact in the record. When
a party moves for summary judgment, “evidence of the type listed in Civ.R. 56(C) * * * must be in the record
or the motion cannot succeed.” (Emphasis added.) Ziccarelli, supra, at ¶40.

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his burden under Civ.R. 56(C) and is not entitled to summary judgment on the remaining

counts of his complaint.

{¶82} The remainder of Mr. Ames’ first assignment of error is without merit.

Grant of Protective Order

{¶83} In his second assignment of error, Mr. Ames argues the trial court erred by

granting the Board’s motion for a protective order and denying him certain discovery.

{¶84} “The standard of review of a trial court's decision in a discovery matter is

whether the court abused its discretion.” (Citation omitted.) State ex rel. Denton v.

Bedinghaus, 98 Ohio St.3d 298, 2003-Ohio-861, ¶ 31. An abuse of discretion is the trial

court’s “failure to exercise sound, reasonable, and legal decision-making.” State v.

Beechler, 2d Dist. Clark No. 09-CA-54, 2010-Ohio-1900, ¶62, quoting Black’s Law

Dictionary 11 (8th Ed.2004).

{¶85} Initially, we note that Mr. Ames did not properly appeal the trial court’s entry

regarding the motion for a protective order. The only judgment entry designated in and

attached to Mr. Ames’ notice of appeal is the trial court’s entry regarding summary

judgment. See App.R. 3(D) (“The notice of appeal * * * shall designate the judgment,

order or part thereof ap[p]ealed from”); Loc.R. 3(D)(2) (“The appellant shall attach to the

Notice of Appeal, a copy of the judgment entry or entries being appealed”). In the interest

of justice, we will review this assignment of error.

{¶86} Civ.R. 26(C), which governs protective orders, provides in part:

{¶87} “Upon motion by any party or by the person from whom discovery is sought,

and for good cause shown, the court in which the action is pending may make any order

that justice requires to protect a party or person from annoyance, embarrassment,

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oppression, or undue burden or expense, including one or more of the following: (1) that

the discovery not be had; (2) that the discovery may be had only on specified terms and

conditions, including a designation of the time or place; (3) that the discovery may be had

only by a method of discovery other than that selected by the party seeking discovery; (4)

that certain matters not be inquired into or that the scope of the discovery be limited to

certain matters; (5) that discovery be conducted with no one present except persons

designated by the court; (6) that a deposition after being sealed be opened only by order

of the court; (7) that a trade secret or other confidential research, development, or

commercial information not be disclosed or be disclosed only in a designated way; (8)

that the parties simultaneously file specified documents or information enclosed in sealed

envelopes to be opened as directed by the court.”

{¶88} Mr. Ames’ argument focuses on the Board’s alleged motivations and actions

in seeking the order. For instance, Mr. Ames asserts that the Board moved for a

protective order as a “ruse” to “delay” or “avoid” discovery, that the Board’s motion was

deficient because the Board failed to recite its efforts to resolve the matter through

discussion, that the Board’s stated legal basis was invalid, and that the Board engaged

in frivolous conduct. Mr. Ames does not address how any of these issues are relevant to

whether the trial court abused its discretion.

{¶89} Mr. Ames asserts that the trial court denied the “discovery of evidence that

would militate the gravity of the Board’s willful and continuing violations of the OMA” and

that he was prejudiced by the Board’s “failure to preserve much of that evidence.”

{¶90} However, Mr. Ames does not identify the evidence to which he is referring

and how he was prejudiced by its omission. The record demonstrates that the trial court

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held at least two hearings to discuss discovery issues and ultimately determined particular

evidence was sufficient for the parties to prepare dispositive motions and responses: a

flash drive containing videos of the Board’s meetings for fiscal year 2016 and the meeting

minutes referenced in Mr. Ames’ complaint. The record also demonstrates that the Board

eventually submitted responses to Mr. Ames’ discovery requests.

{¶91} In fact, Mr. Ames moved for summary judgment before any evidence was

submitted into the record. And curiously, Mr. Ames opposed the trial court’s efforts to

facilitate Mr. Ames’ receipt of evidence that would support his claims, such as the Board’s

meeting minutes. Further, when the Board moved for summary judgment, Mr. Ames did

not move for a continuance to obtain additional discovery pursuant to Civ.R. 56(F).

{¶92} An appellant “bears the burden of affirmatively demonstrating error on

appeal.” (Citations omitted.) State v. Herron, 11th Dist. Lake No. 2009-L-119, et al.,

2010-Ohio-2050, ¶16. “It is not the obligation of an appellate court to search for authority

to support an appellant's argument as to an alleged error.” (Citations omitted.) Id. Mr.

Ames has not affirmatively demonstrated that the trial court abused its discretion in

granting the protective order.

{¶93} Mr. Ames’ second assignment of error is without merit.

{¶94} Based on the foregoing, (1) we dismiss as moot Mr. Ames’ appeal with

respect to Count LV of his complaint; (2) we reverse the trial court’s grant of summary

judgment to the Board on the remaining counts of Mr. Ames’ complaint; (3) we affirm the

trial court’s denial of summary judgment to Mr. Ames; (4) we affirm the trial court’s grant

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of the Board’s motion for a protective order; and (5) we remand this matter to the trial

court for further proceedings consistent with this opinion.

THOMAS R. WRIGHT, P.J.,
TIMOTHY P. CANNON, J.,
concur.

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