Fox v. City of Lakewood

• Decision Date: 05 October 1988
• Docket Number: No. 87-1363,87-1363
• Citation: 39 Ohio St.3d 19,528 N.E.2d 1254
• Parties: FOX, Appellant, v. CITY OF LAKEWOOD et al., Appellees.
• Court: Ohio Supreme Court

Page 19

39 Ohio St.3d 19

528 N.E.2d 1254

FOX, Appellant, v. CITY OF LAKEWOOD et al., Appellees.

No. 87-1363.

Supreme Court of Ohio.

Submitted April 20, 1988.

Decided Oct. 5, 1988.

Syllabus by the Court

Adoption of an amendment to a city charter by the electors of the city cures the city council's failure to open to the public its deliberations regarding the amendment, as required by the city's charter.

On September 3, 1985, defendants-appellees, members of Lakewood City Council, in open session, unanimously adopted Ordinance 56-85 authorizing placement of a proposed amendment to the Lakewood City Charter on the November ballot. Thereafter passed by the citizens of Lakewood, the charter amendment authorized the Lakewood City Council to lease Lakewood Hospital to a private, non-sectarian, non-profit corporation. Accordingly, council adopted Ordinance 63-86 to authorize a lease agreement which was then entered into between defendant-appellee, the city of Lakewood, and Lakewood Hospital Association.

Plaintiff-appellant, John P. Fox, a taxpayer and resident of Lakewood, filed his complaint for declaratory judgment on December 17, 1985, seeking a declaration that Lakewood Ordinance 56-85 and Lakewood Charter, Article XX, adopted pursuant thereto, are invalid. Fox alleges that Ordinance 56-85 was passed by Lakewood City Council as a result of closed discussions which occurred at a private dinner meeting at Lakewood Hospital on August 27, 1985, attended by the Mayor of Lakewood, all members of council, the Clerk of City Council, a few members of Lakewood Hospital, and others. Fox claims that the deliberations at this dinner meeting violated local and state open-meeting or sunshine laws, including the Lakewood City Charter, Lakewood ordinances, and R.C. 121.22. Fox also seeks to enjoin further actions by the city to effectuate the lease with Lakewood Hospital Association.

The trial court granted defendants' Civ.R. 12(B)(6) motion for failure to state a claim and dismissed Fox's action with prejudice. The court of appeals affirmed, holding that Ohio's sunshine law is inapplicable to charter municipalities and was not otherwise incorporated by reference into the Lakewood City Charter. The court of appeals further held that, even assuming a violation of local open-meeting laws occurred, that Chapter 109 of the Lakewood Codified Ordinances does not provide for invalidation of subsequently adopted ordinances or charter amendments.

The cause is now before this court pursuant to the allowance of a motion to certify the record.

Phillips & Co., L.P.A., and Gerald W. Phillips, Cleveland, for appellant.

Calfee, Halter & Griswold, Mark I. Wallach, Kenneth S. Cline, William E. Blackie, Director of Law, Cleveland, and Fred M. DeGrandis, Lakewood, for appellees.

MOYER, Chief Justice.

The legal question presented by this appeal is whether the private dinner meeting between all members of Lakewood City Council, the mayor, a few Lakewood Hospital officers, and others at which they allegedly discussed a prospective charter amendment authorizing the lease of Lakewood Hospital to a private entity constitutes a violation of any duty to hold open meetings, and, if so, whether such violation invalidates the ordinances, charter amendment, and lease with the Lakewood Hospital Association.

I

Fox's claims are premised on the open-meeting requirements of Section 5, Article III of the Lakewood City Charter, R.C. 121.22, Ohio's sunshine law, and his constitutional rights to assemble and petition the government and exercise freedom of speech under Sections 3 and 11, Article I, Ohio Constitution and the First Amendment to the United States Constitution.

The city of Lakewood is a chartered municipality exercising homerule powers under Sections 3 and 7, Article XVIII, Ohio Constitution.

An examination of pertinent sections of the Lakewood Charter and ordinances reveals that both the charter and Codified Ordinances Section 109.01 set forth open-meeting requirements. Lakewood Charter, Section 2, Article I requires that: "All powers shall be exercised in the manner prescribed by this Charter, or if not prescribed herein, then in such manner as shall be provided by ordinance or resolution of the Council. The powers of the Municipality may also be exercised, except if a contrary intent or implication appears in this Charter or in the enactments of the Council, in such manner as may now or may hereafter be provided by the general laws of Ohio." The charter, Section 4, Article III, describes three categories of city council meetings. In pertinent part, Section 5, Article III mandates that: " * * * All meetings of the Council or committees thereof shall be public * * *." ¹

We have interpreted identical language to that found in Section 5, Article III of the Lakewood City Charter in State, ex rel. Plain Dealer Publishing Co., v. Barnes (1988), 38 Ohio St.3d 165, 527 N.E.2d 807. There, we held that "meetings" of the city council or any of its committees means any assemblage of the city council or its committees where a majority of members constituting the body are in attendance and the gathering is arranged for the purpose of discussing public business. We apply that definition to city council "meetings" as the term is used in Section 4, Article III of the Lakewood City Charter. We also concluded in State, ex rel. Plain Dealer Publishing Co., supra, that the plain and ordinary meaning of such charter language restricts a municipal legislative authority from exercising whatever implied power it may have to engage in the practice of closed or executive sessions.

The Lakewood City Council has provided in Section 109.01 of the Codified Ordinances, in pertinent part, that: "Unless otherwise provided in the Codified Ordinances, all meetings of Council * * * and other similar public bodies of the City * * * shall be open to the public, unless an executive session is expressly authorized under the applicable provisions of State law.

"Nothing herein contained shall mandate that any public body permit public participation in such meetings unless specifically required by the provisions of the Amended Charter or the Codified Ordinances."

On its face, Codified Ordinances Section 109.01, which purports to permit council to hold executive sessions, is in conflict with Section 5, Article III of the Lakewood City Charter, which requires that all meetings of council and its committees shall be public.

If there were no conflict, the language of the ordinance would incorporate applicable provisions of state law, i.e., R.C. 121.22, which authorizes certain executive sessions of council. However, because "[n]o ordinance can conflict with the provisions of a city charter and be effective," Reed v. Youngstown (1962), 173 Ohio St. 265, 19 O.O.2d 119, 181 N.E.2d 700, paragraph two of the syllabus, the language of the ordinance does not have the effect of incorporating applicable provisions of R.C. 121.22. This conclusion is also directed by the language of Section 109.01 itself which states: "Nothing herein contained shall mandate that any public body permit public participation in such meetings unless specifically required by the provisions of the Amended Charter or the Codified Ordinances." (Emphasis added.) Furthermore, any attempt to incorporate provisions of R.C. 121.22 authorizing certain executive sessions into Ordinance 56-85 would conflict with the charter and, therefore, would also be without effect. Thus, we conclude that R.C. 121.22 is inapplicable here.

This court has previously observed that "[i]t is clear that the public has no common-law right to attend meetings of governmental bodies." Beacon Journal Publishing Co. v. Akron (1965), 3 Ohio St.2d 191, at 198, 32 O.O.2d 183, at 187, 209 N.E.2d 399, at 404. However, the citizens of Lakewood, as the citizens of many communities, have codified by charter the fundamental principle that the deliberations of public institutions in a democratic society must be open to the public if the confidence of people in those institutions is to be maintained.

We hold that the plain and ordinary meaning of Section 5, Article III, Lakewood City Charter, which states that "[a]ll meetings of the Council or committees thereof shall be public,"...