[Cite as Krueck v. Kipton Village Council,

.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF LORAIN )

RICHARD KRUECK C.A. No. 11CA009960

Appellant

v. APPEAL FROM JUDGMENT ENTERED IN THE KIPTON VILLAGE COUNCIL COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO Appellee CASE No. 09CV163428

DECISION AND JOURNAL ENTRY

Dated: April 23, 2012

CARR, Presiding Judge.

{¶1} Appellant, Richard Krueck, appeals the judgment of the Lorain County Court of

Common Pleas which granted summary judgment in favor of appellee, Village of Kipton. This

Court reverses.

I.

{¶2} The Chief of Police and another officer of the Kipton Police Department were

charged with criminal offenses which led to their resignations, leaving the village without a

police department. The issue of the status of the police department was discussed at various

village council meetings over many months before Professor James McManus of Lorain County

Community College was ultimately sworn in as the new chief of police. Mr. Krueck was a

member of the village council when the issues surrounding the status of the police department

arose and were resolved. According to council minutes, Mr. Krueck faithfully attended all

council meetings. He suspected that the mayor and various members of the council illegally met 2

with Mr. McManus to discuss matters regarding the village police department, i.e., public

business, in violation of R.C. 121.22, Ohio’s Sunshine Law.

{¶3} Mr. Krueck filed a complaint against “Kipton Village Council” in which he

alleged a violation of R.C. 121.22 which requires open meetings where public officials take

official action and conduct deliberations upon official business. The Kipton law director filed a

motion to dismiss the complaint for failure to state a claim upon which relief can be granted for

the reason that the village council is not sui juris and lacks capacity to be sued. The trial court

dismissed Kipton Village Council as a party, but granted leave to Mr. Krueck to amend his

complaint to substitute the appropriate parties. Mr. Krueck subsequently filed an amended

complaint against the Village of Kipton and five named individuals, four of whom he identified

as council members at the time of the alleged illegal meeting.

{¶4} Mr. Krueck sued pursuant to R.C. 121.22(I)(1) to enjoin the Village of Kipton and

various village councilmembers from further violation of the Ohio Sunshine Laws after members

of the village council allegedly met on or about August 13, 2007, in violation of R.C. 121.22.

The Village answered, denying the allegation of a statutory violation. Subsequently, the Village

filed a motion to dismiss the complaint pursuant to Civ.R. 12(B)(6). Mr. Krueck responded in

opposition to the motion to dismiss. The trial court granted the motion to dismiss as it related to

all the individuals named in the complaint for the reason that they had not been served with the

amended complaint, but it denied the motion as it related to the claim against the Village. Mr.

Krueck does not challenge the trial court’s ruling on the motion to dismiss.

{¶5} The Village filed a motion for summary judgment, Mr. Krueck responded in

opposition, and the Village replied. The trial court granted summary judgment in favor of the

Village after finding that “the meeting occurred spontaneously” rather than after having been 3

prearranged, and that it was “primarily fact finding in nature.” Mr. Krueck filed a timely appeal

in which he raises one assignment of error for review.

ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED WHEN IT GRANTED SUMMARY JUDGMENT TO THE DEFENDANT-APPELLEE.

{¶6} Mr. Krueck argues that the trial court erred by granting summary judgment in

favor of the Village. This Court agrees.

{¶7} This Court reviews an award of summary judgment de novo. Grafton v. Ohio

Edison Co.,

(1996). This Court applies the same standard as the trial

court, viewing the facts in the case in the light most favorable to the non-moving party and

resolving any doubt in favor of the non-moving party. Viock v. Stowe-Woodward Co.,

(6th Dist. 1983).

{¶8} Pursuant to Civ.R. 56(C), summary judgment is proper if:

No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party.

Temple v. Wean United, Inc.,

(1977).

{¶9} To prevail on a motion for summary judgment, the party moving for summary

judgment must be able to point to evidentiary materials that show that there is no genuine issue

as to any material fact, and that the moving party is entitled to judgment as a matter of law.

Dresher v. Burt,

(1996). Once a moving party satisfies its burden of

supporting its motion for summary judgment with sufficient and acceptable evidence pursuant to

Civ.R. 56(C), Civ.R. 56(E) provides that the non-moving party may not rest upon the mere

allegations or denials of the moving party’s pleadings. Rather, the non-moving party has a 4

reciprocal burden of responding by setting forth specific facts, demonstrating that a “genuine

triable issue” exists to be litigated for trial. State ex rel. Zimmerman v. Tompkins,

(1996).

{¶10} It is axiomatic that the non-moving party’s reciprocal burden does not arise until

after the moving party has met its initial evidentiary burden. To do so, the moving party must set

forth evidence of the limited types enumerated in Civ.R. 56(C), specifically, “the pleadings,

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

and written stipulations of fact[.]” Civ.R. 56(C) further provides that “[n]o evidence or

stipulation may be considered except as stated in this rule.”

{¶11} Mr. Krueck first argues that the trial court erred by failing to consider any

evidentiary materials he submitted in opposition to the Village’s motion for summary judgment.

The trial court asserted, however, that it based its decision on a consideration of “the pleadings,

depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in

the pending case, and written stipulations of fact, if any[.]” Accordingly, there is no indication

from the record that the trial court failed to consider all proper Civ.R. 56(C) evidence.

{¶12} Ohio’s Sunshine Law, as enunciated in R.C. 121.22, states in relevant part:

This section 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.

***

(C) All meetings of any public body are declared to be public meetings open to the public at all times. A member of a public body shall be present in person at a meeting open to the public to be considered present or to vote at the meeting and for purposes of determining whether a quorum is present at the meeting.

***

(F) Every public body, by rule, shall establish a reasonable method whereby any person may determine the time and place of all regularly scheduled meetings and 5

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. In the event of an emergency, the member or members calling the meeting shall notify the news media that have requested notification immediately of the time, place, and purpose of the meeting.

{¶13} The statute defines “public body” to include a council of any political subdivision.

R.C. 121.22(B)(1)(a). A “meeting” is “any prearranged discussion of the public business of the

public body by a majority of its members.” R.C. 121.22(B)(2); accord State ex rel. Cincinnati

Post v. Cincinnati,

(1996) (holding that the “elements of the statutory

definition of a meeting are (1) a prearranged discussion, (2) a discussion of the public business of

the public body, and (3) the presence at the discussion of a majority of the members of the public

body.”)

{¶14} This Court has recognized that a public body violates the Sunshine Law where it

simultaneously conducts a meeting while deliberating over public business. Berner v. Woods,

9th Dist. No. 07CA009132,

, citing Holeski v. Lawrence,

(11th Dist. 1993). We have acknowledged, however, that “deliberations”

contemplate more than mere investigation, fact-finding, or information-gathering.

, citing Holeski,

. Specifically, we have stated that “[q]uestion-and-

answer sessions between board members and other persons who are not public officials do not

constitute ‘deliberations’ unless a majority of the board members also entertain a discussion of

public business with one another. In this context, ‘discussion’ entails an ‘exchange of words,

comments or ideas by the board.’ A conclusive decision among board members on any measure,

however, is not necessary to prove a violation.” (Internal citations omitted.)

. 6

{¶15} In its motion for summary judgment, the Village did not dispute that a majority of

council members got together with Mayor Watson and Mr. McManus around the time alleged in

the complaint. Instead, it raised the following three arguments in support of its motion.

{¶16} First, the Village argued that no “public body” was involved because all

individual council members had been dismissed as parties to the action. By definition, the

village council constitutes a “public body.” R.C. 121.22(B)(1)(a). Moreover, the Ohio Supreme

Court has recognized that a political subdivision’s council is not sui juris and, therefore, cannot

sue or be sued. State ex rel. Cleveland Municipal Court v. Cleveland City Council,

(1973). The high court noted that “[a]n action involving the council should be

brought against the [political subdivision], or against the existing councilmen.” (Emphasis

added.)

Because the village council is a public body, and Mr. Krueck properly brought this

action against the Village, there is no evidentiary or legal support for the Village’s first

argument.

{¶17} Second, the Village argued that there was no “meeting” as that term is statutorily

defined because of the spontaneous, rather than prearranged, nature of the coming together of

various council members with the mayor and Mr. McManus. In support, the Village presented

Mr. Krueck’s deposition in which he testified that “the meeting occurred spontaneously,

apparently[.]” However, when village counsel sought clarification of Mr. Krueck’s use of the

term “spontaneously,” Mr. Krueck testified that he in fact did not know how the meeting

occurred. He testified, “[A]ll I know is that the meeting that had been originally set up had been

cancelled and this other meeting occurred and the clerk and myself were not invited to the

meeting.” Mr. Krueck further testified during his deposition that another council member, 7

Amanda Anderson, told him that the council president had approached her on the street and

asked her to come to the meeting but that she was unable to do so at the time.

{¶18} Copies of the minutes from seven village council meetings were admitted and

appended to Mr. Krueck’s deposition. The minutes of a regular council meeting held on

September 10, 2007, state that the mayor, council president, “and others” met with Mr.

McManus of Lorain County Community College “to discuss the future of the police dept.”

{¶19} The Ohio Supreme Court, while recognizing the statute’s purpose to prevent

secret deliberations by public bodies on public issues without accountability to the public,

acknowledged that the statute does not prohibit spontaneous or “impromptu hallway meetings

between council members[.]” Cincinnati Post,

. In this case, the Village

failed to present any evidence that the acknowledged meeting between the mayor, council

members, and Mr. McManus (who would ultimately become the chief of police for the Village)

was merely spontaneous or impromptu in nature. Indeed, the Village’s evidence (Mr. Krueck’s

deposition) demonstrates that council president Meilander approached another council member

on the street and asked her to attend the meeting.

{¶20} Finally, the Village argued that there was no violation of the Sunshine Law

because council members did not engage in “deliberations” at the meeting. The Village argued

that the meeting was solely for the purpose of gathering facts in the early stages of investigating

matters surrounding the status of the village police department. The only evidence of the

substance of the meeting, however, was the statement in the September 10, 2007 regular council

meeting minutes that the mayor and council members met with Mr. McManus “to discuss the

future of the police dept.” which was in disarray after criminal charges were brought against the

police chief and an officer. The Village presented no evidence that this meeting was merely a 8

question-and-answer session. Instead, the minutes indicate that the council members present

engaged in an “exchange of words, comments or ideas,” by discussing the future of the village

police department, i.e., public business. See

. This conclusion is bolstered by

additional information in village council minutes subsequent to the challenged meeting regarding

the many issues continuing to arise out of the problems in the police department, e.g., a vote to

accept the police chief’s resignation, a later vote to accept another officer’s resignation, Mr.

McManus’ advice and help in “get[ting] the police dept. up and running,” and the ultimate

designation of Mr. McManus as chief of police. Accordingly, the Village’s evidence

demonstrated that “the future of the police dep[artment]” was an on-going issue for discussion at

council meetings.

{¶21} Based on this Court’s de novo review, we conclude that the Village failed to

present any evidence to demonstrate that a majority of council members had not arranged to

meet for the purpose of deliberating over public business. The Village’s evidence demonstrated

that various council members met privately with a man with whom the Village had been

consulting regarding the status of the village police department and that the group discussed the

future of the police department. That no conclusive decision was reached at that meeting is

immaterial. See

. Moreover, the Village’s evidence appended to its motion for

summary judgment demonstrated that council president actively sought the attendance of a

council member at the meeting prior to its occurrence. Under these circumstances, the Village

failed to meet its initial burden under Dresher to show that no genuine issue of material fact

exists and that it is entitled to judgment as a matter of law. Accordingly, the trial court erred by

granting summary judgment in favor of the Village. 9

{¶22} Even were we to conclude that the Village met its initial burden, we would be

compelled to conclude that Mr. Krueck met his reciprocal burden of responding by setting forth

specific facts, demonstrating that a “genuine triable issue” exists to be litigated for trial.

Tompkins,

.

{¶23} Mr. Krueck appended the answers of five council members and the mayor to his

response. The mayor answered that he notified Robert Meilander (president of council) “about

the meeting in question[.]” Mr. Meilander answered that he called council member Dorothy

Collins by telephone to ask her if she would like to meet Jim McManus from the local college

after the mayor informed him that Mr. McManus was coming to Village Hall. Dorothy Collins

answered that she notified council member Jeanette Leimbach by telephone about the meeting in

question, and Ms. Leimbach’s answer confirmed that she was so notified. Council member

Carol Saccardi answered that either the mayor or the president of council called her. Although

Mr. Meilander answered in the first set of interrogatories served upon him that the meeting in

question did not violate R.C. 121.22 because it was “an informal, fact-finding gathering” with

Mr. McManus, the documents appended to his answer to interrogatories include council minutes

indicating that he and others met with Mr. McManus “to discuss the future of the police dept.,” a

statement which on its face indicates that the meeting may likely have been more than an

informal fact-finding gathering. Accordingly, Mr. Krueck’s evidence too gives rise to genuine

triable issues which precluded the trial court from granting summary judgment in favor of the

Village as a matter of law. Mr. Krueck’s sole assignment of error is sustained. 10

III.

{¶24} Mr. Krueck’s assignment of error is sustained. The judgment of the Lorain

County Court of Common Pleas is reversed and the cause remanded for further proceedings

consistent with this opinion.

Judgment reversed, And cause remanded.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellee.

DONNA J. CARR FOR THE COURT

WHITMORE, J. MOORE, J. CONCUR. 11

APPEARANCES:

MARGERET O’BRYON, Attorney at Law, for Appellee.

RICHARD A. KRUECK, pro se, Appellant.