[Cite as State ex rel. Dunlap v. Violet Twp. Bd. of Trustees,

.]

COURT OF APPEALS FAIRFIELD COUNTY, OHIO FIFTH APPELLATE DISTRICT

: JUDGES: STATE OF OHIO EX REL. : Patricia A. Delaney, P.J. SCOTT DUNLAP : W. Scott Gwin, J. : William B. Hoffman, J. Relator : : -vs- : : Case No. 12-CA-8 : VIOLET TOWNSHIP BOARD OF : TRUSTEES, ET AL. : OPINION

Respondents

CHARACTER OF PROCEEDING: Writ of Mandamus

JUDGMENT: Writ Granted in part; Denied in part.

DATE OF JUDGMENT ENTRY: May 30, 2013

APPEARANCES:

For Relator: For Respondents:

WESLEY T. FORTUNE PAUL-MICHAEL LA FAYETTE Fortune & Associates, LLC Poling and Petrello 421 Hill Road, North 300 East Broad Street, Suite 350 Pickerington, Ohio 43147 Columbus, Ohio 43215 [Cite as State ex rel. Dunlap v. Violet Twp. Bd. of Trustees,

.]

Delaney, P.J.

{¶1 } Relator Scott Dunlap has filed a petition for writ of mandamus for alleged

violations of Ohio’s Sunshine Laws, R.C. 121.22 (Public Meetings Act) and R.C. 149.43

(Public Records Act). Respondents are the Violet Township Board of Trustees as well

as the individual trustees, and they have filed an answer to the complaint. Both Relator

and Respondents have filed motions for summary judgment. Said motions are now

before this Court for consideration.

{¶2 } Essentially, Relator raises two arguments: (1) Respondents kept minutes

which were “inadequate or incorrect” and (2) Respondents improperly entered into

executive sessions on multiple occasions. Relator requests the writ to compel

Respondents to prepare, file, and maintain full and accurate records of township

proceedings, accounts and transactions and to conduct all meetings in public, except for

properly called executive sessions.

{¶3 } Respondents in turn admit to four violations of the Public Meetings Act in

regards to making proper motions to begin executive sessions. However, Respondents

argue some of the admitted instances are barred by the applicable statute of limitations.

Respondents further argue the remaining instances comply in all respects with the

Sunshine laws.

{¶4 } SUMMARY JUDGMENT STANDARD

{¶5 } The Supreme Court of Ohio in State ex rel. Zimmerman v. Tompkins,

,

, 1996–Ohio–211,

explained the

standard for summary judgment: “Civ.R. 56(C) provides that before summary judgment

may be granted, it must be determined that (1) no genuine issue as to any material fact Fairfield County, Case No. 12-CA-8 3

remains to be litigated, (2) the moving party is entitled to judgment as a matter of law,

and (3) it appears from the evidence that reasonable minds can come to but one

conclusion, and viewing such evidence most strongly in favor of the nonmoving party,

that conclusion is adverse to the party against whom the motion for summary judgment

is made. State ex. rel. Parsons v. Fleming (1994),

,

, citing Temple v. Wean United, Inc. (1977),

, 4

O.O3d 466, 472,

.”

{¶6 } MANDAMUS

{¶7 } The Supreme Court has held, “R.C. 121.22(I), which affords mandatory

injunctive relief by way of a common pleas court action to enforce the provisions of the

Open Meetings Act, does not prevent a mandamus action. See State ex rel. Fairfield

Leader v. Ricketts (1990),

,

.” State ex rel. Am.

Civ. Liberties Union of Ohio, Inc. v. Cuyahoga Cty. Bd. of Commers (2011),

,

, 560. Further, the Supreme Court has held, “R.C.

121.22 and 149.43 are construed in pari materia for purposes of maintaining a record of

the proceedings of public bodies and making minutes of those proceedings available to

the public. See, e.g., State ex rel. Long v. Cardington Village Council (2001),

, 748 N.E.2d 58” Id. at 263-264.

{¶8 } To be entitled to the requested writ of mandamus, Relator must establish

a clear legal right to minutes which are more detailed, a clear legal duty on the part of

Respondents to provide those, and the lack of an adequate remedy at law. State ex rel.

Inskeep v. Staten (1996),

,

. Fairfield County, Case No. 12-CA-8 4

I.

{¶9 } In his first “objection,” Relator argues the minutes for January 20, 2010,

April 7, 2010, April 21, 2010, November 3, 2010, and August 3, 2011 have “insufficient

facts to understand and appreciate the rationale behind the Board’s decision.”

{¶10 } Respondents argue the minutes are self explanatory by referencing the

resolution numbers being approved. Further, Respondents argue Relator has provided

no evidence that any discussion took place regarding these votes other than that which

is already contained in the minutes. In other words, the resolutions were approved

without additional discussion and based upon review of the resolutions alone.

{¶11 } Relator does not offer any evidence as to any alleged missing details or

any discussions had at the meeting which were not included in the written minutes.

Relator merely avers that the minutes are too generalized. We have reviewed the

sixteen portions of the minutes cited by Relator in his Motion for Summary Judgment

and find they are sufficiently detailed to comply with the statute. We find the details

presented in the minutes reflect the entirety of the discussion which took place relative

to each vote at each meeting. The requested writ of mandamus as to this “objection” is

denied because Relator has failed to demonstrate a clear legal right to anything other

than that which already appears in the minutes provided to him.

II.

{¶12 } In Relator’s next “objection”, he argues Respondents “failed to state with

requisite specificity the purpose or purposes of convening executive sessions . . . in

both its motion and vote and if any individuals present participated in the Executive

Session during the Board’s sessions.” Fairfield County, Case No. 12-CA-8 5

{¶13 } Respondents have admitted the executive sessions entered into on

January 15, 2010 and January 16, 2010 lacked a stated statutory purpose, however,

Respondents argue these particular claims are time barred by the two year statute of

limitations found in R.C. 121.22(I)(1). The instant complaint was filed on February 21,

2012 which would make these claims outside of a two year statute of limitations.

Relator in turn argues there is a ten year statute of limitations pursuant to R.C. 2305.14.

{¶14 } R.C. 121.22(I)(1) provides in part,

{¶15 } “(I)(1) Any person may bring an action to enforce this section. An action

under division (I)(1) of this section shall be brought within two years after the date of the

alleged violation or threatened violation. Upon proof of a violation or threatened violation

of this section in an action brought by any person, the court of common pleas shall

issue an injunction to compel the members of the public body to comply with its

provisions.”

{¶16 } Relator has filed a writ of mandamus which is clearly brought as “an action

to enforce this section.” Based upon the language of the statute, we find Relator’s

claims relative to any alleged failures to comply with the Open Meetings Act are subject

to a two year statute of limitations. For this reason, Relator’s claims relative to the

January 15, 2010 and January 16, 2010 minutes are barred by the statute of limitations.

Therefore, we will not grant the writ as it relates to the January 15, 2010 and January

16, 2010 minutes even though Respondent has admitted the minutes fail to comply with

the statute. Although not raised by Respondents, we likewise hold that claims relative

to the minutes for January 20, 2010 are barred by the statute of limitations. Fairfield County, Case No. 12-CA-8 6

{¶17 } Respondents have admitted the January 4, 2011 and November 2, 2011

minutes fail to state with requisite specificity the reason for entering into executive

session. For this reason, we grant the writ of mandamus as to these two dates.

{¶18 } There remain seven claims for improper entrance into executive session:

April 7, 2010; April 21, 2010; May 5, 2010; November 3, 2010; April 28, 2011; May 18,

2011; and August 3, 2011. The minutes on each of these dates contain both a statutory

reason for entering into executive session as well as a roll call vote as required by R.C.

121.22(G)(1).

{¶19 } The minutes for April 7, 2010 and April 21, 2010 both state in relevant

part, “Mr. Meyers made a motion to go into Executive Session . . . to discuss sale or

purchase of property (according to ORC Section 121.22 G-2).”

{¶20 } The minutes for November 3, 2010 provide, “Mr. Meyers made a motion to

go into Executive Session . . . per Section of the ORC 121.22-G4 to discuss personnel

issues.” Likewise, the minutes for May 18, 2011 state, “Mr. Weltrich made a motion to

go into Executive Session . . . to discuss personnel issues per ORC Section 121.22 G4.

. .”

{¶21 } We find Respondent’s citation to an appropriate subsection on the

foregoing dates coupled with a description of the topic to be discussed in the executive

session satisfies the statutory requirements for entering an executive session.

{¶22 } On April 28, 2011, the following minutes were recorded, “Mr. Weltlich

made a motion to go into Executive Session per the ORC Section 121.22(G)(1) to

discuss legal issues,” and on August 3, 2011, the following minutes were recorded, “Mr. Fairfield County, Case No. 12-CA-8 7

Dunlap made a motion to go into Executive Session to discuss personnel issues per

ORC 121.22.G1.”

{¶23 } When an executive meeting is called, the statute clearly requires the

minutes to specifically contain one or more of the purposes listed in R.C. 121.22(G)(1) if

the meeting is called pursuant to subsection (G)(1). R.C. 121.22(G)(1) provides, “(G)

Except as provided in division (J) of this section, the members of a public body may

hold an executive session only after a majority of a quorum of the public body

determines, by a roll call vote, to hold an executive session and only at a regular or

special meeting for the sole purpose of the consideration of any of the following matters:

{¶24 } (1) To consider the appointment, employment, dismissal, discipline,

promotion, demotion, or compensation of a public employee or official, or the

investigation of charges or complaints against a public employee, official, licensee, or

regulated individual, unless the public employee, official, licensee, or regulated

individual requests a public hearing. Except as otherwise provided by law, no public

body shall hold an executive session for the discipline of an elected official for conduct

related to the performance of the elected official's official duties or for the elected

official's removal from office. If a public body holds an executive session pursuant to

division (G)(1) of this section, the motion and vote to hold that executive session shall

state which one or more of the approved purposes listed in division (G)(1) of this

section are the purposes for which the executive session is to be held, but need

not include the name of any person to be considered at the meeting.” (emphasis

added). Fairfield County, Case No. 12-CA-8 8

{¶25 } The minutes for April 28, 2011 and August 3, 2011 merely state “legal

issues” and “personnel issues” rather than citing specifically to one of the issues

provided in subsection (G)(1) such as “appointment, employment, dismissal, discipline,

etc.” For this reason, we find the minutes for these two dates do not comply with the

statute.

{¶26 } The minutes for May 5, 2010 provide in relevant part, “Mr. Meyers made a

motion to . . . go into Executive Session at 8:40 pm to discuss personnel issues

according to ORC Section 121.22 G-2.” ORC Section 121.22(G)(2) does not involve

personnel issues, rather, it involves the sale or purchase of property. The minutes

appear to either be inaccurate or contain a clerical error as to the correct sub section.

For this reason, the writ will issue as it relates to the entrance into executive session in

minutes for May 5, 2010.

III.

{¶27 } Finally, Relator argues he should be awarded the civil forfeiture amounts

for violations due pursuant to R.C 121.22(I) as well as attorney fees pursuant to R.C.

121.22(I) and R.C. 149.43(C).1

{¶28 } R.C. 121.22(I) provides in part,

{¶29 } “(2)(a) If the court of common pleas issues an injunction pursuant to

division (I)(1) of this section, the court shall order the public body that it enjoins to pay a

civil forfeiture of five hundred dollars to the party that sought the injunction and shall

award to that party all court costs and, subject to reduction as described in division (I)(2)

of this section, reasonable attorney's fees. The court, in its discretion, may reduce an

1 We note Relator withdrew his request for injunctive relief. Fairfield County, Case No. 12-CA-8 9

award of attorney's fees to the party that sought the injunction or not award attorney's

fees to that party if the court determines both of the following: . . .

{¶30 } (i) That, based on the ordinary application of statutory law and case law as

it existed at the time of violation or threatened violation that was the basis of the

injunction, a well-informed public body reasonably would believe that the public body

was not violating or threatening to violate this section;

{¶31 } (ii) That a well-informed public body reasonably would believe that the

conduct or threatened conduct that was the basis of the injunction would serve the

public policy that underlies the authority that is asserted as permitting that conduct or

threatened conduct.”

{¶32 } The award of a civil forfeiture pursuant to R.C. 121.22(I) is only

appropriate where an action has been brought in the court of common pleas and that

court issues an injunction. This cause was not originated in the court of common pleas

and an injunction was not issued. For these reasons, attorney fees cannot be awarded

pursuant to R.C. 121.22(I).

{¶33 } While it appears from the plain language of the statute that an award of

attorney fees would likewise be appropriate only where an injunction has been issued,

the Supreme Court has held that an award of attorney fees may be appropriate where

mandamus is issued for a violation of the open meetings act. See State ex rel. Long v.

Cardington Village Council (2001),

,

.(“Based on

the foregoing, [Relator] has established her entitlement to the requested extraordinary

relief in mandamus. She is also entitled to an award of attorney fees and costs. R.C.

149.43(C); cf. R.C. 121.22(I)(2).”). Fairfield County, Case No. 12-CA-8 10

{¶34 } The conduct by Respondents in this case was not as egregious as the

conduct where attorney fees have been awarded. Attorney fees were awarded where

the minutes were wholly incomplete and contained such errors as citing a member had

voted who was not even on the council. In the instant case, aside from the two

instances where any statutory reason was omitted, it appears Respondents attempted

to comply with the Sunshine laws by citing to a specific code section together with the

topic which was to be discussed. Of the many instances cited by Relator, only one

clerical error or omission was found. Further, the public benefit in bringing this cause is

minimal at best in this case as the majority alleged violations have not been proven.

For these reasons, we find an award of attorney fees is not warranted.

{¶35 } Relator is granted summary judgment as to the two instances admitted to

by Respondents and as to the May 5, 2010, April 28, 2011, and August 3, 2011 minutes

relative to entering into executive session. Respondents are granted summary

judgment as to all other portions of the petition. A writ of mandamus is issued requiring

Respondents to correct the errors found.

By: Delaney, P.J.

Gwin, J. and

Hoffman, J. concur

_____________________________

_____________________________

_____________________________

JUDGES IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO, EX REL. : SCOTT DUNLAP : : Relator : : : -vs- : JUDGMENT ENTRY : VIOLET TOWNSHIP BOARD : OF TRUSTEES, ET AL., : : Respondents : CASE NO. 12-CA-8

For the reasons stated in our accompanying Memorandum-Opinion on file,

summary judgment is granted in favor of Relator as to the two instances admitted to by

Respondents and as to the May 5, 2010, April 28, 2011, and August 3, 2011 minutes

relative to entering into executive session. Respondents are granted summary

judgment as to all other portions of the petition. A writ of mandamus is issued requiring

Respondents to correct the errors found. Relator’s request for attorney fees is denied.

Costs assessed to be divided equally between Relator and Respondent Violet Township

Board of Trustees.

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JUDGES