[Cite as State ex rel. Ames v. Portage Cty. Bd. of Commrs.,

.]

IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY

STATE OF OHIO ex rel. CASE NO. 2019-P-0125 BRIAN M. AMES,

Relator, Original Action for Writs of Mandamus

-v-

PORTAGE COUNTY BOARD OF COMMISSIONERS, et al.,

Respondents.

PER CURIAM OPINION

Decided: February 7, 2022 Judgment: Petition denied

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

Victor V. Vigluicci, Portage County Prosecutor, and Christopher J. Meduri, Assistant Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Respondents).

PER CURIAM.

{¶1} This original action in mandamus is before us on remand from the Supreme

Court of Ohio. In State ex rel. Ames v. Portage Cty. Bd. of Commrs.,

,

,

(“Ames II”), the court directed us to consider (1) whether

relator, Brian M. Ames (“Mr. Ames”), is entitled to further relief for the alleged violation of

the Open Meetings Act by respondents, Portage County Board of Commissioners and

Portage County Solid Waste Management District Board of Commissioners (collectively, “respondents”), and (2) whether Mr. Ames should be awarded statutory damages under

the Public Records Act.

{¶2} Upon a careful review of the record and pertinent law, we find as follows:

{¶3} (1) Even if we assume that respondents’ use of a consent agenda violated

the Open Meetings Act, Mr. Ames has not established that he is entitled to extraordinary

relief in mandamus. Respondents already performed the requested act by ceasing use

of a consent agenda.

{¶4} (2) Mr. Ames is not entitled to statutory damages under the Public Records

Act because he has not established that respondents failed to comply with an obligation

imposed by R.C. 149.43(B).

{¶5} Thus, we grant respondents’ motion for summary judgment and overrule

Mr. Ames’s motion for summary judgment. Mr. Ames’s petition for writs of mandamus

and request for statutory damages are denied.

Background and Procedural History

{¶6} The Portage County Board of Commissioners (“the board”) established the

Portage County Solid Waste Management District (“the SWMD”) by resolution on

December 20, 1988. Ames II at ¶ 2. Pursuant to R.C. 3734.52(A), the board serves as

the SWMD’s board of directors.

The board refers to itself as the “Solid Waste

Management District Board of Commissioners” when conducting SWMD business.

{¶7} The board generally begins a regularly scheduled public meeting at 9:00

a.m., recites the Pledge of Allegiance, and immediately recesses to a public meeting of

the SWMD. Id. at ¶ 3. When the SWMD meeting is adjourned, the board immediately

reconvenes its public meeting regarding official county business. Id. This entire process

2

Case No. 2019-P-0125 is open to the public. Id. The board’s clerk keeps separate minutes for the board’s

meeting on county business and the SWMD meeting. Id.

{¶8} In 2019, the board adopted a consent-agenda procedure. Id. at ¶ 4. The

procedure allows for the approval of “routine items like the approval of minutes, approval

of bills/ACH payments as presented by the County Auditor, approval of Then and Now

Certifications as presented by the County Auditor, as well as other items as listed on the

consent agenda rules.” Id. A “yes” vote on the consent agenda is a “yes” vote on each

of the items included on the consent agenda. Id.

September 2019 Meetings

{¶9} On September 17, 2019, the board began its regular meeting at 9:00 a.m.

and recessed at 9:01 a.m. to begin the SWMD meeting. Id. at ¶ 5. At the SWMD meeting,

the board adopted a consent agenda containing an approval of minutes from the previous

meeting and three resolutions. Id. There was no regular-agenda business at the meeting.

Id. The SWMD meeting was adjourned less than a minute after it began, after which the

board resumed its regular meeting on county business. Id.

{¶10} The September 26, 2019 meetings were conducted similarly. Id. at ¶ 6.

The board recessed its meeting at 9:00 a.m. and immediately convened an SWMD

meeting. Id. At the SWMD meeting, the board adopted a consent agenda containing an

approval of minutes from the September 17 meeting and three resolutions. Id. The board

then concluded the SWMD regular agenda, adjourned the meeting at 9:02 a.m., and

immediately resumed its meeting regarding county business. Id.

{¶11} On December 26, 2019, Mr. Ames submitted a public-records request by

email to the board’s clerk for “the meeting minutes of September 17 and 26, 2019 for the

3

Case No. 2019-P-0125 Portage County Board of Commissioners and the Portage County Solid Waste

Management District Board of Commissioners.” Id. at ¶ 7. The following day, the board’s

clerk emailed the minutes of the September 17 and September 26 meetings to Mr. Ames.

Id.

{¶12} The minutes of the SWMD meetings contain the full text of the resolutions

approved by consent agenda. Id. For one of the resolutions passed at the September

17 SWMD meeting, the minutes purport to include a “Then and Now Certificate” from the

county auditor designated as “Exhibit A” to Resolution No. 19-137; however, the exhibit

was not attached to the minutes approved by the board or produced in response to Mr.

Ames’s public-records request. Id.

Mandamus Petition

{¶13} On December 27, 2019, the same day he received the response to his

public-records request, Mr. Ames filed a verified petition in this court for writs of

mandamus against the board, the SWMD board, and the Portage County Court of

Common Pleas. See id. at ¶ 8.

{¶14} Mr. Ames alleged that the SWMD board is a “fictitious body” that “has no

basis in law”; the board violated the Open Meetings Act (“OMA”) by conducting SWMD

business during recesses of the September 2019 board meetings; the board’s use of a

consent agenda at the SWMD meetings violated the OMA; and the board violated R.C.

121.22(C), R.C. 305.10, and R.C. 149.43(B) by failing to keep full and accurate meeting

minutes for the September 2019 meetings. See id.

{¶15} Mr. Ames sought a writ of mandamus compelling the board to prepare, file,

and maintain accurate minutes for the September 2019 SWMD meetings and future

4

Case No. 2019-P-0125 meetings and to conduct all SWMD business in open meetings of the board except for

properly called executive sessions. See id. Mr. Ames also sought a writ of mandamus

compelling the court of common pleas to grant the relief set forth in R.C. 121.22(I) for

proven violations of the OMA. See id.

{¶16} This court granted an alternative writ. The respondents filed an answer,

denying that they had violated any statutory provisions. Both sides filed cross-motions

for summary judgment.

Ames I

{¶17} In State ex rel. Ames v. Portage Cty. Bd. of Commrs., 11th Dist. Portage

No. 2019-P-0125,

(“Ames I”), this court granted the respondents’ motion,

denied Mr. Ames’s motion, and denied the writs. Id. at ¶ 16-17. This court made the

following determinations:

{¶18} First, the SWMD board is “a valid public body authorized to conduct

business with regard to implementing a solid waste management plan that complies with

R.C. 3734.55” and was subject to the OMA. Id. at ¶ 11. Second, the use of the SWMD

board and the use of consent agendas to approve routine resolutions did not conflict with

the OMA or any other law. Id. at ¶ 14. Third, the board’s failure to include Exhibit A in its

email response to Mr. Ames’s public records request did not violate the OMA. Id. at ¶ 15.

Ames II

{¶19} Mr. Ames’s appealed to the Supreme Court of Ohio as of right. In Ames II,

the Supreme Court of Ohio affirmed in part, reversed in part, and remanded for further

proceedings. Id. at ¶ 1. The court made the following determinations:

5

Case No. 2019-P-0125 {¶20} First, a solid waste management district is a political subdivision unto itself,

separate from a county, although it is governed by the board of county commissioners

that created it. Id. at ¶ 14. The board validly created the SWMD by resolution in 1988,

and the OMA does not prohibit the board from holding a public meeting of the SWMD

separate from the county board meeting. Id. at ¶ 15. Although Mr. Ames distinguished

between the SWMD and the SWMD board in his petition and filings, the Supreme Court

of Ohio did not make this distinction.

{¶21} Second, while the OMA “does not appear to prevent the board from using

consent agendas as a general matter,” Mr. Ames had raised a plausible theory sufficient

to survive a motion for summary judgment, i.e., that the board’s use of a consent agenda

constructively closed its public meetings and was an “impermissible end run around” the

OMA. Id. at ¶ 19.

{¶22} Third, the minutes for the September 2019 meetings “satisfied R.C.

121.22(C) * * * [i]n large part.” Id. at ¶ 22. However, the approved minutes of the

September 17, 2019 meeting were inaccurate in one respect – Exhibit A was not attached

to the official minutes that the board’s clerk prepared or included with the documents she

produced to Mr. Ames. Id. Therefore, the “uncontroverted evidence” showed that the

board did not produce full and accurate minutes of the September 17 SWMD meeting.

Id. at ¶ 24.

{¶23} Finally, a court of common pleas is not a proper respondent in a mandamus

action. Id. at ¶ 26. “R.C. 121.22(I) provides for issuance of an injunction and the award

of costs and attorney fees only for a violation or threatened violation of the Open Meetings

Act proven in the court of common pleas.” (Emphasis sic.) Id. at ¶ 27. Mr. Ames “cannot

6

Case No. 2019-P-0125 use mandamus as a way to bypass the statute’s requirement that a violation be proven

in an R.C. 121.22(I) proceeding in the common pleas court.” Id.

{¶24} Thus, the court affirmed summary judgment and denial of mandamus relief

as to the common pleas court but reversed it as to the board and the SWMD. Id. at ¶ 28.

The court ordered the board to “produce Exhibit A to the minutes of the September 17

SWMD meeting to [Mr.] Ames in response to his public-records request.’” Id. It remanded

the matter to this court to consider “(1) whether the SWMD’s alleged violation of the [OMA]

entitles [Mr.] Ames to further relief and (2) whether [Mr.] Ames should be awarded

statutory damages under the Public Records Act.” Id.

{¶25} Mr. Ames filed a motion for reconsideration in the Supreme Court of Ohio

based on his proposed distinction between the SWMD and the SWMD board, which the

court denied. See State ex rel. Ames v. Portage Cty. Bd. of Commrs.,

,

,

.1

{¶26} The respondents filed in this court a motion for leave to file a pre-hearing

brief, along with a proposed pre-hearing brief, in anticipation of an agreed statement of

facts or an evidentiary hearing under Loc.Adm.R. 101. Mr. Ames filed a brief in

opposition.

{¶27} We issued an alternative writ and ordered the parties to file supplemental

briefs and additional evidentiary quality material, if any. We also denied the respondents’

motion for leave as moot.

1. Justice Brunner concurred in part and dissented in part, writing that she “would grant limited reconsideration to clarify that appellee, the Portage County Board of Commissioners, may convene itself as the solid-waste-management district board of the county when no such separate board has been created in the county, and thus, any distinction between the two is substantively one without a difference and is inconsequential to the court’s prior decision.” 7

Case No. 2019-P-0125 {¶28} Both sides subsequently filed supplemental briefs and response briefs. This

matter is now before us for consideration of the merits in accordance with the Supreme

Court of Ohio’s order of remand.

Summary Judgment Standard

{¶29} Civ.R. 56(C) provides that before summary judgment is granted, it must be

determined that (1) 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 the

evidence most strongly in favor of the nonmoving party, that conclusion is adverse to the

nonmoving party. State ex rel. Levin v. Schremp,

,

(1995).

Writ of Mandamus Standard

{¶30} Appellate courts have jurisdiction to hear an original action in mandamus

pursuant to Article IV, Section 3(B)(1) of the Ohio Constitution. “Mandamus is a writ,

issued in the name of the state to an inferior tribunal, a corporation, board, or person

commanding the performance of an act which the law specifically enjoins as a duty

resulting from an office, trust, or station.” R.C. 2731.01. “‘The function of mandamus is

to compel the performance of a present existing duty as to which there is a default.’” State

ex rel. Willis v. Sheboy,

,

(1983), quoting State ex

rel. Fed. Homes Properties, Inc. v. Singer,

,

(1967).

{¶31} To be entitled to a writ of mandamus, a party must establish, by clear and

convincing evidence, (1) a clear legal right to the requested relief, (2) a clear legal duty

on the part of the respondent to provide it, and (3) the lack of an adequate remedy in the

8

Case No. 2019-P-0125 ordinary course of the law. State ex rel. Gadell-Newton v. Husted,

,

,

.

Alleged OMA Violation

{¶32} The first issue on remand is whether the SWMD’s alleged violation of the

OMA entitles Mr. Ames to further relief. See Ames II at ¶ 28.

{¶33} R.C. 121.22(A) provides that the OMA “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(C) provides that “[a]ll meetings of any public body are declared to be public

meetings open to the public at all times.” The term “meeting” means “any prearranged

discussion of the public business of the public body by a majority of its members.” R.C.

121.22(B)(2).

{¶34} The Supreme Court of Ohio described Mr. Ames’s OMA claim as follows:

{¶35} “In this case, the board approved multiple consent agenda items in a single

vote. Although the vote itself was conducted in an open meeting, [Mr.] Ames contends

that the board did not state or otherwise make public at the time of the meeting the specific

resolutions being voted on as part of the consent agenda. He asserts that by failing to

inform the public which resolutions were being voted on, this process effectively resulted

in the board voting on the individual resolutions in secret. * * * While the [OMA] does not

appear to prevent the board from using consent agendas as a general matter, [Mr.] Ames

has raised a plausible theory—sufficient to survive a motion for summary judgment—that

the board’s use of a consent agenda in this manner constructively closes its public

meetings and is an impermissible end run around the [OMA].” Ames II at ¶ 19.

9

Case No. 2019-P-0125 {¶36} Even if we assume that the board’s use of a consent agenda constitutes a

violation of the OMA, Mr. Ames must establish his entitlement to the requested

extraordinary relief in mandamus.

{¶37} The Supreme Court of Ohio most recently considered an open-meetings

mandamus claim in State ex rel. Am. Civ. Liberties Union of Ohio, Inc. v. Cuyahoga Cty.

Bd. of Commrs.,

,

,

(“ACLU”). In that

case, a committee and workgroups developed recommendations regarding Cuyahoga

County’s transition to a charter form of government. See id. at ¶ 2-9. The ACLU filed an

original action in the Supreme Court of Ohio, requesting, in relevant part, “a peremptory

writ of mandamus directing the Respondents * * * to conduct all meetings in public.” Id.

at ¶ 16, 27.

{¶38} The court rejected the respondents’ argument that the ACLU’s claim was

“an ill-disguised claim for a declaratory judgment and prohibitory injunction.” Id. at ¶ 25.

The court determined that the ACLU’s complaint properly invoked its original jurisdiction

and that the ACLU did not have an adequate remedy in the ordinary course of law. Id. at

¶ 26. According to the court, the injunctive relief that R.C. 121.22(I) affords does not

prevent a mandamus action. Id. Further, a prohibitory injunction would not provide the

ACLU with the relief it requested, i.e., an order compelling the respondents to hold all of

the committee and workgroup meetings in public. Id.

{¶39} However, the court determined that the ACLU had not established a clear

legal right or a corresponding clear legal duty. See id. at ¶ 27-31. The court found that

“[i]nsofar as the ACLU’s request for relief could be construed as requesting a writ of

mandamus to compel compliance with R.C. 121.22 by respondents in the future,” the

10

Case No. 2019-P-0125 ACLU was not entitled to this relief. Id. at ¶ 27. According to the court, “[a] ‘writ of

mandamus will not issue to compel the general observance of laws in the future.’” Id.,

quoting State ex rel. Kirk v. Burcham,

,

(1998).

{¶40} Further, the evidence established that the respondents were complying with

R.C. 121.22 by conducting open meetings. Id. at ¶ 28. According to the court,

“‘[m]andamus will not compel the performance of an act that has already been

performed.’” Id., quoting State ex rel. Dehler v. Kelly,

, 2009-Ohio-

5259,

.

{¶41} Thus, the court determined that the ACLU had not established “a clear legal

right to a writ of mandamus directing respondents to conduct all meetings in public” or a

“corresponding clear legal duty on the part of the respondents to do so.” Id. at ¶ 31.

{¶42} Mr. Ames requests, in relevant part, a writ of mandamus compelling the

board to conduct all SWMD business in open meetings of the board except for properly

called executive sessions.2 Based on ACLU, Mr. Ames’s OMA mandamus claim properly

invokes this court’s original jurisdiction in mandamus, and he does not have an adequate

remedy at law in the common pleas court. See id. at ¶ 25-26. Therefore, the dispositive

issue is whether Mr. Ames has established a clear legal right and a clear legal duty.

{¶43} To the extent Mr. Ames seeks to compel the board’s general compliance

with the OMA in the future, Mr. Ames is not entitled to such relief in mandamus. See

ACLU at ¶ 27;

.

2. Mr. Ames also requests a writ of mandamus compelling the board to prepare, file, and maintain accurate minutes for the September 2019 SWMD meetings and future meetings. The Supreme Court of Ohio granted the relief to which Mr. Ames is entitled in relation to the board’s minutes. See Ames II at ¶ 22, 28. Thus, this portion of Mr. Ames’s request is moot. 11

Case No. 2019-P-0125 {¶44} To the extent Mr. Ames seeks to prohibit the board from using a consent

agenda for SWMD business, that act has already been performed. The board submitted

affidavits from two of the county commissioners, who both averred that the board “no

longer uses a consent agenda process for any county business, including that concerning

[the SWMD].” Mr. Ames has not disputed these assertions. Since the board has already

performed the requested act, mandamus relief is precluded. See ACLU at ¶ 28;

.

{¶45} Accordingly, Mr. Ames has not established a clear legal right to a writ of

mandamus directing the board to conduct all meetings in public or a corresponding clear

legal duty on the part of the board to do so.

Statutory Damages

{¶46} The second issue on remand is whether Mr. Ames should be awarded

statutory damages under the Public Records Act. See Ames II at ¶ 28.

{¶47} “Under R.C. 149.43(C)(2), the ‘requester shall be entitled to recover’

statutory damages if (1) he submits a written request ‘by hand delivery, electronic

submission, or certified mail,’ (2) the request ‘fairly describes the public record or class of

public records,’ and (3) ‘a court determines that the public office or the person responsible

for public records failed to comply with an obligation’ imposed by R.C. 149.43(B).”

(Emphasis added.) State ex rel. Armatas v. Plain Twp. Bd. of Trustees,

,

,

, quoting R.C. 149.43(C)(2)

{¶48} “Statutory damages accrue ‘at one hundred dollars for each business day

during which the public office or person responsible for the requested public records failed

to comply [with an obligation in accordance with division (B) of this section], beginning

12

Case No. 2019-P-0125 with the day on which the requester files a mandamus action to recover statutory

damages, up to a maximum of one thousand dollars.’” (Emphasis added.) Id. at ¶ 25,

quoting R.C. 149.43(C)(2).

{¶49} The relevant inquiry is whether the board failed to comply with an obligation

imposed by R.C. 149.43(B). Mr. Ames contends that the Supreme Court of Ohio already

made this determination in Ames II. He further contends that the court’s discussion

indicates that the board failed to comply with R.C. 149.43(B)(2), which provides, in

relevant part, that “[t]o facilitate broader access to public records, a public office or the

person responsible for public records shall organize and maintain public records in a

manner that they can be made available for inspection or copying in accordance with

division (B) of this section.”

{¶50} We disagree with Mr. Ames’s assertions. The Supreme Court did not state

that the board failed to comply with a specific obligation in division (B) of R.C. 149.43.

Rather, the court determined that “the uncontroverted evidence shows that the board did

not produce full and accurate minutes of the September 17 SWMD meeting in response

to [Mr.] Ames’s public-records request * * *.” Id. at ¶ 24.

{¶51} The court’s precedent indicates that this obligation arises from the court’s

in pari materia construction of the OMA, the Public Records Act, and R.C. 305.10. See

White v. Clinton Cty. Bd. of Commrs.,

,

(1996),

paragraph one of the syllabus (“R.C. 121.22, 149.43 and 305.10, when read together,

impose a duty on all boards of county commissioners to maintain a full and accurate

record of their proceedings”); State ex rel. Long v. Cardington Village Council,

,

(2001) (“Construing R.C. 121.22, 149.43, and 733.27 in pari

13

Case No. 2019-P-0125 materia, respondents, * * * have a duty to prepare, file, and maintain full and accurate

minutes for council meetings, and to make them available for public inspection”).

{¶52} As the court explained in Ames II, “R.C. 121.22(C) requires a public body

to prepare, file, and maintain minutes of its meetings. * * * Once prepared, R.C. 149.43(B)

requires that the public body provide access to the minutes upon request. * * * In addition,

R.C. 305.10 requires that the clerk of a county board of commissioners keep a full record

of the board’s proceedings. * * * Mandamus is a proper remedy to compel compliance

with a public office’s duty to prepare, file, and maintain full and accurate meeting minutes.”

Id. at ¶ 21.

{¶53} In addition, there is no evidence suggesting that the “manner” in which the

board organized and maintained its meeting minutes was faulty pursuant to R.C.

149.43(B)(2). The board’s clerk averred that the SWMD’s minutes are maintained in

separate journals at the county administration building, and it is undisputed that the board

responded to Mr. Ames’s public records request the next day.

{¶54} Rather, the evidence establishes that the board failed to prepare full and

accurate minutes for the September 17 meeting by neglecting to attach a referenced

exhibit. As a result, the September 17 minutes that the board approved and produced to

Mr. Ames were necessarily not full and accurate. The fact that the minutes the board

produced to Mr. Ames contained an inaccuracy does not constitute a failure to comply

with R.C. 149.43(B). See State ex rel. Citizens for Open, Responsive & Accountable

Govt. v. Register,

,

,

, ¶ 34 (finding that

a township fiscal officer “fully complied with her duties under R.C. 507.04, 121.22, and

14

Case No. 2019-P-0125 149.43” by certifying resolutions and including mistakes that had been approved by the

board).

{¶55} Accordingly, Mr. Ames has not established that the board failed to comply

with an obligation imposed by R.C. 149.43(B). Therefore, he is not entitled to statutory

damages under the Public Records Act.

{¶56} For the foregoing reasons, respondents’ motion for summary judgment is

granted, and Mr. Ames’s motion for summary judgment is overruled. Mr. Ames’s petition

for writs of mandamus and request for statutory damages are denied.

CYNTHIA WESTCOTT RICE, J., MARY JANE TRAPP, J., JOHN J. EKLUND, J., concur.

15

Case No. 2019-P-0125