State ex rel. Ames v. Portage Cnty. Bd. of Commissioners, 2019-P-0016

• Citation: 132 N.E.3d 729,2019 Ohio 3730
• Decision Date: 16 September 2019
• Docket Number: NO. 2019-P-0016,2019-P-0016
• Parties: STATE of Ohio EX REL. Brian M. AMES, Relator-Appellant, v. PORTAGE COUNTY BOARD OF COMMISSIONERS, Respondent-Appellee.
• Court: Ohio Court of Appeals

132 N.E.3d 729

2019 Ohio 3730

STATE of Ohio EX REL. Brian M. AMES, Relator-Appellant,

v.PORTAGE COUNTY BOARD OF COMMISSIONERS, Respondent-Appellee.

NO. 2019-P-0016

Court of Appeals of Ohio, Eleventh District, Portage County.

Decided September 16, 2019

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

Victor V. Vigluicci, Portage County Prosecutor, and Timothy J. Piero, Assistant Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Respondent-Appellee).

MARY JANE TRAPP, J.

{¶1} Appellant, Brian Ames ("Mr. Ames"), appeals the judgment of the Portage County Court of Common Pleas granting summary judgment in favor of appellees, the Portage County Board of Commissioners (the "Board"), and denying him summary judgment in his civil action against the Board alleging multiple violations of Ohio's Open Meetings Act (the "OMA"). Mr. Ames also assigns as error the trial court's granting of the Board's motion for a protective order regarding his discovery requests.

{¶2} After a careful review of the record and pertinent law, we find: (1) we have previously addressed Count LV of Mr. Ames' complaint in Case No. 2019-P-0015, and therefore his appeal with respect to this claim for relief is dismissed as moot; (2) the trial court incorrectly interpreted R.C. 121.22(G)(1) and thus erred in granting summary judgment to the Board on the remaining counts of Mr. Ames' complaint; (3) the trial court properly denied Mr. Ames' motion summary judgment because he failed to meet his burden under Civ.R. 56(C) to show the absence of a genuine issue of material fact, i.e., whether the Board reasonably intended to discuss all of the permissible purposes listed in the meeting minutes; and (4) Mr. Ames did not affirmatively demonstrate that the trial court abused its discretion in granting the Board's motion for a protective order.

{¶3} More specifically, the trial court erred in holding that the Board necessarily stated an acceptable purpose under R.C. 121.22(G)(1) by reading the entire list of permissible purposes verbatim. The statute mandates that the Board specifically state in its motions and votes the particular permitted purpose or purposes that the Board reasonably intends to discuss during executive session.

{¶4} We understand that given the litigation history between Mr. Ames and the Board, the Board, in good faith, sought to insulate itself from more litigation by erring on the side of inclusiveness, but for future meetings the Board must be more precise.

{¶5} For example, if the purpose is to discuss a complaint about a public employee, the Board should state that it is going into executive session to consider investigation of charges or complaints against a public employee and to consider dismissal, discipline, or demotion of that public employee, who has not requested a public hearing.

{¶6} Thus, we affirm in part, reverse in part, and remand to the trial court for further proceedings consistent with this opinion.

Substantive History and Procedural Background

{¶7} On June 28, 2016, Mr. Ames, pro se, filed a verified complaint in the Portage County Court of Common Pleas (Case No. 2016 CV 00582) alleging the Board violated the OMA on multiple occasions.¹

{¶8} Specifically, Mr. Ames alleged that on 42 separate occasions from January 5, 2016 through June 14, 2016, prior to entering executive sessions to consider personnel matters, the Board read from R.C. 121.22(G)(1) and stated all permissible purposes set forth in the statute without specifying which of those permissible purposes would be discussed. Mr. Ames further alleged that the Board's practice constituted a "threat" to violate R.C. 121.22(G)(1).

{¶9} Mr. Ames sought: (1) a declaratory judgment that the Board violated the OMA, (2) a $500 civil forfeiture for each violation, (3) an order to permanently enjoin the Board from violating the OMA, (4) an order that the Board annotate the meeting minutes to reflect the approved purposes for each executive session, and (5) court costs and reasonable attorney fees.

{¶10} Mr. Ames also served discovery requests on the Board consisting of requests for admission, interrogatories, and requests for production of documents.

{¶11} The Board filed an answer generally denying Mr. Ames' allegations. The Board also filed a motion for protective order and objection to discovery.

{¶12} Mr. Ames filed a motion to disqualify the Board's counsel, a motion to strike and brief in opposition to the Board's motion/objection, a motion for "discipline" against the Board pursuant to the trial court's local rules, and a motion for a preliminary injunction.

{¶13} Without leave of court, Mr. Ames filed an amended complaint alleging 13 additional violations of the OMA, for a total of 55 alleged violations from January 5, 2016 through July 19, 2016 (Counts I through LV), and one alleged threat to violate the statute (Count LVI). Count LV of Mr. Ames' amended complaint alleges the same violation regarding the Board's meeting of July 19, 2016 as Count I of his complaint in Case No. 2017 CV 00415.

{¶14} The Board filed a motion to dismiss, or in the alternative, for summary judgment, along with a memorandum in support. The Board admitted that prior to the executive sessions referenced in Mr. Ames' amended complaint, it read from R.C. 121.22(G)(1). The Board argued that this practice complied with the OMA.

{¶15} Mr. Ames filed a brief in opposition as well as a cross motion for summary judgment. Mr. Ames argued that the Board's practice of "merely reiterat[ing] the laundry list of possible matters from R.C. 121.22(G)(1) without specifying which of those purposes [will] be discussed in executive session" did not comply with R.C. 121.22(G)(1) based on the Supreme Court of Ohio's decision in State ex rel. Long v. Cardington Village Council , 92 Ohio St.3d 54, 748 N.E.2d 58 (2001). Mr. Ames argued he was entitled to judgment as a matter of law on "each violation" set forth in his complaint.

{¶16} Mr. Ames filed an original action in procedendo in the Supreme Court of Ohio, which was docketed as State ex rel. Ames v. Reinbold , Case No. 2017-1483, requesting an order that the trial judge rule on pending motions in the underlying case. The court initially referred the matter to mediation, see 11/07/2017 Case Announcements , 2017-Ohio-8446, 85 N.E.3d 759, and subsequently dismissed the action. See 06/27/2018 Case Announcements , 2018-Ohio-2418, 100 N.E.3d 444.

{¶17} Mr. Ames also filed an affidavit of disqualification with the Chief Justice of the Supreme Court of Ohio alleging that the visiting trial judge was biased in favor of the Board's counsel, which the Chief Justice denied in In re Disqualification of Reinbold , 152 Ohio St.3d 1221, 2017-Ohio-9427, 94 N.E.3d 570.

{¶18} Following a hearing regarding, among other things, the availability of videos of Board meetings, the trial court issued a judgment entry indicating that the Board would confirm its contention that it did not retain copies of such videos.

{¶19} Following an additional hearing, the trial court issued a journal entry directing the Board to make available to Mr. Ames a flash drive containing videos of the Board's meetings for fiscal year 2016.

{¶20} The trial court issued another order requiring the Board to provide the court with the meeting minutes so it could determine their evidentiary value. Mr. Ames filed an "objection," alleging the trial court was attempting to independently investigate facts in violation of Jud.Cond.R. 2.9(C). Mr. Ames also filed an "objection" to the trial court's alleged "disregard of the Ohio Rules of Civil Procedures" relating to pending motions and discovery.

{¶21} The trial court issued an order and journal entry converting the Board's motion to dismiss to a motion for summary judgment and permitting the parties to submit evidence consistent with Civ.R. 56(C) and to file additional pleadings, if necessary.

{¶22} Mr. Ames filed a motion requesting that the trial court issue an order compelling the Board to either complete discovery or stipulate to relevant facts.

{¶23} The Board filed an answer to Mr. Ames' amended complaint generally denying his allegations. The Board also filed a renewed motion for a protective order and objection to discovery.

{¶24} The trial court issued an order marking the relevant meeting minutes as "the Court's Exhibit AA" and admitting them into evidence. The trial court then filed the meeting minutes with the clerk of courts.

{¶25} Without leave of court, Mr. Ames filed a proposed second amended verified complaint. He also filed a motion to strike and an opposition to the Board's renewed motion for a protective order and objection to discovery, as well as renewed discovery requests.

{¶26} The Board filed a notice of submission into evidence a flash drive containing video of the Board's meetings for fiscal year 2016.

{¶27} Following a hearing on discovery matters, the trial court issued a judgment entry denying Mr. Ames' motions to compel discovery, to amend his verified complaint, and to strike the Board's renewed motion for a protective order. The trial court's entry also granted, in part, the Board's motion for a protective order by limiting discovery to the meeting minutes and the flash drive.

{¶28} The Board filed a notice of submission of its responses to Mr. Ames' discovery requests.

{¶29} Mr. Ames filed a motion to disqualify the visiting trial judge, alleging that he "repeatedly demonstrated an inability to uphold and apply the law."

{¶30} The Board filed a motion for summary judgment and a brief in opposition to Mr. Ames' previously filed motion for summary judgment. The Board admitted in briefing it held several meetings as indicated in Mr. Ames' amended complaint and it "read verbatim from R.C. 121.22(G)(1) to move into executive session," as corroborated by the minutes marked as Exhibit AA and the flash drive. The Board again argued that its practice complied with the OMA.

{¶31} Mr. Ames filed original actions for writs...