[Cite as White v. King,

.]

COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT

ADAM J. WHITE JUDGES: Hon. William B. Hoffman, P. J. Plaintiff-Appellant Hon. Sheila G. Farmer, J. Hon. John W. Wise, J. -vs- Case No. 14 CAE 02 0010 DAVID E. KING, et al.

Defendants-Appellees OPINION

CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common Pleas, Case No. 13 CVH 04 0352

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: September 5, 2014

APPEARANCES:

For Plaintiff-Appellant For Defendants-Appellees

PHILLIP L. HARMON JOHN C. ALBERT 6649 North High Street CRABBE, BROWN & JAMES Suite 105 500 South Front Street, Room 1200 Worthington, Ohio 43085 Columbus, Ohio 43215

Amicus Curiae Common Cause Ohio and League of Women Voters

NANCY G. BROWN 17 South High Street, Suite 650 Columbus, Ohio 432315 [Cite as White v. King,

.]

Wise, J.

{¶1}. Plaintiff-Appellant Adam J. White appeals the decision of the Court of

Common Pleas, Delaware County, which entered a dismissal on the pleadings

regarding appellant's complaint under R.C. 121.22 against his fellow school board

members, Appellees herein. The relevant facts leading to this appeal are as follows.

{¶2}. At the times pertinent to the matter, Appellant White and Appellee King

were members of the Olentangy Local School District Board of Education ("Board"), as

were Appellees Julie Feasel, Kevin O'Brien, and Stacy Dunbar.

{¶3}. In March 2012, Appellant White commenced an independent investigation

into certain expenditures by two athletic directors employed by the District. As a result of

the information uncovered by Appellant White, one of the athletic directors resigned and

both of them were required to reimburse the District for improper spending.

{¶4}. On September 25, 2012, the Board voted four-to-one to amend Board

Policy No. 0148.1(B) to require that all future communications between Board members

and staff must first pass through the District Superintendent or Treasurer. Appellant

White voted against the changes to Board Policy No. 0148.1(B).

{¶5}. On October 11, 2012, the Columbus Dispatch newspaper published an

editorial entitled: "Role reversal: School boards, not superintendents, are the boss and

should act like it." The editorial essentially criticized policies restricting direct access by

school board members to administrators and personnel, and it favorably mentioned

Appellant White's decision to vote against the Olentangy Local School District's

aforesaid revised policy. Delaware County, Case No. 14 CAE 02 0010 3

{¶6}. Appellee King, who was serving as Board President, thereupon proposed

to the other Board members, Appellees Feasel, O'Brien, and Dunbar, that a public

response to the Dispatch editorial should be made. A series of emails between

Appellees King, Feasel, O'Brien, Dunbar and certain school district employees resulted

in a response that was submitted to the Dispatch. The final response, issued on

October 13, 2012 and published on October 27, 2012, was signed only by Appellee

David King, based on the newspaper's editorial policy, but said letter had the consent of

Appellees Feasel, O'Brien, and Dunbar. Appellant White was not consulted about the

response before it was issued or published.

{¶7}. On April 25, 2013, Appellant White filed an action against Appellees King,

Feasel, O'Brien, and Dunbar, alleging violations of Ohio's Open Meeting statute, R.C.

121.22. A Board meeting was also held on April 25, 2013 in which the Board voted to

"ratify" appellees' response letter to the editor submitted to the Columbus Dispatch.

{¶8}. Appellees filed a timely answer and amended answer.

{¶9}. Appellees filed a motion for judgment on the pleadings on June 20, 2013.

Appellant then filed a motion to add a party and for leave to file his first amended

complaint. Said leave was granted by the trial court on July 10, 2013, making appellees'

first motion for judgment on the pleadings moot. The amended complaint was filed

against Appellees King, Feasel, O'Brien and Dunbar in both their official and individual

capacities and against the Olentangy Local School District Board of Education seeking

a declaratory judgment for a violation of R. C. 121.22. Delaware County, Case No. 14 CAE 02 0010 4

{¶10}. Appellees filed a timely answer to the amended complaint. Appellees then

filed a second motion for judgment on the pleadings on or about October 4, 2013.

Appellant responded on October 18, 2013. Appellees filed a reply on October 23, 2013.

{¶11}. On January 16, 2014, the trial court issued a judgment entry granting

appellees' second motion for judgment on the pleadings and a judgment entry denying

appellees' second motion to amend the case schedule.

{¶12}. On February 13, 2014, appellant filed a notice of appeal. He herein raises

the following sole Assignment of Error:

{¶13}. “I. THE TRIAL COURT ERRED AS A MATTER OF LAW BY FAILING TO

LIBERALLY CONSTRUE THE CLEAR MEANING OF THE OHIO OPEN MEETINGS

STATUTE TO THE FACTS OF THIS CASE.”

I.

{¶14}. In his sole Assignment of Error, appellant contends the trial court erred in

construing the Open Meetings Statute and thus granting appellees' motion for judgment

on the pleadings. We disagree.

{¶15}. Motions for judgment on the pleadings are governed by Civ.R. 12(C),

which states: “After the pleadings are closed but within such time as not to delay the

trial, any party may move for judgment on the pleadings.” Pursuant to Civ.R. 12(C),

“dismissal is [only] appropriate where a court (1) construes the material allegations in

the complaint, with all reasonable inferences to be drawn therefrom, in favor of the

nonmoving party as true, and (2) finds beyond doubt that the plaintiff could prove no set

of facts in support of his claim that would entitle him to relief.” State ex rel. Midwest

Pride IV, Inc. v. Pontious (1996),

,

. The Delaware County, Case No. 14 CAE 02 0010 5

very nature of a Civ.R. 12(C) motion is specifically designed for resolving solely

questions of law. See Peterson v. Teodosio (1973),

,

. Reviewing courts will reverse a judgment on the pleadings if the plaintiffs can

prove any set of facts that would entitle them to relief. Flanagan v. Williams (1993),

,

, abrogated on other grounds by Simmerer

v. Dabbas,

,

,

. The review will be

done independent of the trial court's analysis to determine whether the moving party

was entitled to judgment as a matter of law.

{¶16}. As an initial matter, we must set the parameters of the proper review of

the record before us. Appellant appears to challenge the trial court's purported reliance

on documentation attached to his complaint and amended complaint, such as copies of

e-mail correspondence between various school board members. Appellant argues that

"[w]hen a trial court relies upon evidence outside [of] the pleadings, the court effectively

converts the Civ.R. 12(C) motion to a motion for summary judgment subject to review

per the Civ.R. 56(C) standard." Appellant's Brief at 13. However, the "[d]etermination of

a motion for judgment on the pleadings is restricted solely to the allegations in the

complaint and answer, as well as any material attached as exhibits to those pleadings."

Schmitt v. Educational Serv. Ctr. of Cuyahoga Co., 8th Dist. Cuyahoga No. 97605,

,

. Under the circumstances presented, we will not

countenance appellant's challenge to the trial court's utilization of documents that

appellant presented to the court as his own complaint attachments. We thus further find

on a preliminary basis that there was no requirement that appellees' second motion for Delaware County, Case No. 14 CAE 02 0010 6

judgment on the pleadings be converted to a summary judgment motion, as appellant

suggests.

{¶17}. We also briefly note at this juncture that appellant admittedly is not

appealing the trial court's conclusion that appellees have no individual liability and are

entitled to statutory immunity. Therefore, we need not address these topics.

{¶18}. Turning to the statute at issue, R.C. 121.22, Ohio's "open meeting" or

"sunshine" law, provides in pertinent part as follows:

{¶19}. "(A) 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.

{¶20}. "***

{¶21}. "(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.

{¶22}. "***."

{¶23}. The intent of the "Sunshine Law" is to require governmental bodies to

deliberate public issues in public. See Moraine v. Montgomery County Board of

Commissioners (1981),

,

. A "meeting" is defined by

the statute to mean "any pre-arranged discussion of the public business of the public

body by a majority of its members." R.C. 121.22(B)(2). Thus, a claim for a violation of

the "Sunshine Law" must set forth the existence of the following elements: a (1) pre-

arranged (2) discussion (3) of the public business of the public body in question (4) by a Delaware County, Case No. 14 CAE 02 0010 7

majority of its members. See State ex rel. Schuette v. Liberty Twp. Board of Trustees,

5th Dist. Delaware No. 03-CAH-11064,

.

{¶24}. The case of Haverkos v. Northwest Local School Dist. Bd. of Edn., 1st

Dist. Hamilton Nos. C-040578, C-040589,

,

, bears a

number of similarities to the appeal sub judice. The dispute in Haverkos also had its

genesis in a newspaper article about a school board's actions, to which four members of

said board ultimately responded with a jointly-signed letter. Id. at ¶1. Communication via

a single e-mail and a few telephone calls about formulating the response letter took

place in the meantime between certain board members, and the letter was later read

aloud at the board's next public meeting. Id. at ¶ 2. Mark Haverkos, eventually the

appellant/cross-appellee in the matter, then filed a suit under R.C. 121.22 against the

board and four members thereof. Id. at ¶ 3.

{¶25}. In ruling in favor of the board members, the First District Court in Haverkos

first found that there had been no pre-arranged meeting for purposes of the Sunshine

Law, and at no time had there been a meeting of the majority of the board. The Court

specifically concluded under the facts of the case that "[o]ne-on-one conversations

between individual board members [do] not constitute a 'meeting' under the Sunshine

Law." Id. at ¶ 7, citing State ex rel. Floyd v. Rockhill Local Bd. of Edn. (Feb. 10, 1998),

4th Dist. Lawrence No. 1862,

. The First District Court also considered

the import of an e-mail message as a form of "discussion" Ohio's Sunshine Law. Id. at ¶

9. The Court reviewed corresponding statutes from other states, and noted that

although Ohio's statute had been amended as recently as 2002, no language regarding

modern electronic communications was to be found: "Since the legislature chose not to Delaware County, Case No. 14 CAE 02 0010 8

include electronic communication in the statute, we hold Ohio's Sunshine Law does not

cover e-mails" Id. at ¶ 9. Furthermore, the Court recognized that as far as the claim of

public business being discussed privately by board members, the response letter "did

not mention any pending rule or resolution before the board." Id. at ¶ 10. Finally, the

Court noted that "*** the contacts were informal and not pre-arranged." Id. at ¶ 11.

{¶26}. We recognize that the case sub judice involves much more expansive use

of emails; perhaps several dozen if "copied" recipient formats are counted individually.

However, appellant herein never alleged that appellees improperly met in person. As in

Haverkos, we conclude that if the Generally Assembly had intended to include sporadic

emails in the statutory definition of "meeting," it would have said so. As an appellate

court, we ordinarily must presume that the legislature means what it says. See State v.

Link,

,

,

, citing State v.

Virasayachack (2000),

,

. Furthermore, at the time

the emails were exchanged, there was no pending rule or resolution before the Board.

Even if the Board "ratified" the rebuttal letter in April 2013, after appellant filed his civil

action in this case, this was six months after said letter was published in the Dispatch.

We find no merit in appellant's claim that the Board's action at that time somehow

retroactively created a prearranged discussion of public business via e-mails. Moreover,

the mere discussion of an issue of public concern does not mean there were

deliberations under the statute. See

. Delaware County, Case No. 14 CAE 02 0010 9

{¶27}. We therefore find no error as a matter of law in the granting of appellees'

motion for judgment on the pleadings under the facts and circumstances of this case.

Appellant's sole Assignment of Error is overruled.

{¶28}. For the reasons stated in the foregoing opinion, the judgment of the Court

of Common Pleas, Delaware County, Ohio, is hereby affirmed.

By: Wise, J.

Hoffman, P. J., and

Farmer, J., concur.

JWW/ 0814