State ex rel. Ames v. Portage Cnty. Bd. of Comm'rs

• Decision Date: 25 July 2022
• Docket Number: 2021-P-0112
• Citation: 2022 Ohio 2543
• Parties: STATE OF OHIO ex rel. BRIAN M. AMES, Relator-Appellant, v. PORTAGE COUNTY BOARD OF COMMISSIONERS, Respondent-Appellee.
• Court: Ohio Court of Appeals

2022-Ohio-2543

STATE OF OHIO ex rel. BRIAN M. AMES, Relator-Appellant, v. PORTAGE COUNTY BOARD OF COMMISSIONERS, Respondent-Appellee.

No. 2021-P-0112

Court of Appeals of Ohio, Eleventh District, Portage

July 25, 2022

Civil Appeal from the Court of Common Pleas Trial Court No. 2020 CV 00273

Judgment Affirmed

Brian M. Ames, pro se,(Relator-Appellant).

Victor V. Vigluicci, Portage County Prosecutor, and Christopher J Meduri, Assistant Prosecutor (For Respondent-Appellee).

OPINION

MATT LYNCH, J.

{¶1} Relator-appellant, Brian M. Ames, appeals the judgment of the Portage County Court of Common Pleas finding that he engaged in frivolous conduct and awarding attorney fees to respondent-appellee, Portage County Board of Commissioners. For the following reasons, we affirm the judgment of the court below.

{¶2} The course of the underlying proceedings is as follows:

On April 27, 2020, Ames filed a Verified Complaint in Mandamus, Declaratory Judgment, and Injunction against the Board of Commissioners, alleging two violations of R.C 121.22 [the Open Meetings Act] arising from a meeting held on April 9, 2020: Considering in an Executive Session a Subject Matter Not Specifically Excepted by Law (Count 1) and Failure to Keep Full and Accurate Minutes (Count 2).

The matter was tried by the court on June 15, 2021, at which the following persons testified: Janet Kovick (director of human resources); Sabrina Christian-Bennett (member of the board of commissioners); Vicki Kline (vice president of the board of commissioners); Kathleen Clyde (president of the board of commissioners); and Amy Hutchinson (clerk of the board of commissioners). During the course of the April 9 meeting, a motion was made and approved to move "into executive session to consider the employment of a public employee" (in the words of the meeting minutes). The three Commissioners along with Kovick, Chris Meduri (an attorney), and Gene Roberts (water resources department director) participated in the session. A "succession plan," developed by human resources, was discussed according to which the Deputy Director of Portage County Water Resources would be transitioned or promoted to the newly created position of Interim Director. The offer of the new position was to be made on April 15. The performance of the Deputy Director was discussed, in particular, her leadership skills demonstrated during the pandemic. After the executive session concluded, the following journal entry was adopted: "After exiting Executive Session, the Board of Commissioners agreed to stay the succession plan for the Water Resources Director for the duration of the public health emergency."

State ex rel. Ames v. Portage Cty. Bd. of Commrs., 2022-Ohio-105, 183 N.E.3d 633, ¶ 2-3.

{¶3} On June 24, 2021, the trial court ruled that the Board had not violated R.C. 121.22.

{¶4} On June 25, 2021, a Motion for a Hearing to Determine Issue of Frivolous Conduct was filed on behalf of the Board, requesting "that a hearing be set to provide Relator due process and for [the] Court to determine whether the filing of this action and/or the assertions of the claims in this action constitute frivolous conduct, and upon a finding of such conduct, for this Court to award the Respondent its reasonable attorney fees and any other reasonable expenses incurred in this action."

{¶5} The Motion was based on division (I)(2)(b) of R.C. 121.22 which provides:

If the court of common pleas does not issue an injunction pursuant to division (I)(1) of this section and the court determines at that time that the bringing of the action was frivolous conduct, as defined in division (A) of section 2323.51 of the Revised Code, the court shall award to the public body all court costs and reasonable attorney's fees, as determined by the court.

Although the statute does not provide for a hearing, this court has held that due process requires one be held. Accordingly, a trial court is required, upon the denial of injunctive relief, "to notify a party of its intention to find his or her conduct frivolous, set a date for a hearing, and conduct that hearing so the party can defend against the potential consequence of being deprived of his or her property in the form of a fee award." State ex rel. Ames v. Portage Cty. Bd. of Commrs., 11th Dist. Portage No. 2018-P-0036, 2019- Ohio-3237, ¶ 22.

{¶6} "Frivolous conduct" is statutorily defined as the conduct of a party to a civil action that satisfies any of the following:

(i) It obviously serves merely to harass or maliciously injure another party to the civil action or appeal or is for another improper purpose, including, but not limited to, causing unnecessary delay or a needless increase in the cost of litigation.

(ii) It is not warranted under existing law, cannot be supported by a good faith argument for an extension, modification, or reversal of existing law, or cannot be supported by a good faith argument for the establishment of new law.

(iii) The conduct consists of allegations or other factual contentions that have no evidentiary support or, if specifically so identified, are not likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.

R.C. 2323.51(A)(2)(a).

{¶7} The Board's Motion for a Hearing did not describe or otherwise identify the conduct claimed to be frivolous, but quoted divisions (A)(2)(a)(ii) and (iii) of the foregoing statute.

{¶8} On September 16, 2021, the Board filed a Brief Concerning the Hearing to Determine the Issue of Frivolous Conduct. The principal argument advanced in the Brief was that Ames' Complaint was frivolous under R.C. 2323.51 (A)(2)(a)(ii), and secondarily that division (iii) was implicated.

{¶9} Attached to the Brief were emails sent by Ames to Christopher Meduri, counsel for the Board, on August 13, 2021. In them, Ames indicates that he filed the lawsuit at the request of one of the County Commissioners who opposed the staying of the succession plan. Ames further disclosed that the Commissioner in question arranged for the Complaint to be notarized so that it could be filed as soon as possible.^[1] Based on these emails, the Board argued that Ames did not file the lawsuit for a legitimate purpose under the Open Meetings Act:

The OMA is essentially a public rights statute. Like public rights statutes for which representative standing exists the people are the "real party in interest." * * * Invoking the judicial process remains a serious matter. The OMA should not be used as a "pretext" to bring a lawsuit (under the R.C. 121.22) when the person does not like the policy decision of the board. This is an abuse of the court's process. The pro se litigant in this case now alleges that a commissioner wanted him to file this case, the same commissioner that voted against the succession plan. The Relator is the responsible party because he filed the case under the "any person" standing provision of the OMA; however, there is no rational basis supported by legal authority warranted under existing law, nor is there a rational basis supported by at least some type of case law that would support a good faith argument for the extension of existing law or the establishment of new [law].

Respondent's Brief Concerning the Hearing to Determine the Issue of Frivolous Conduct at 42-43; also at 10 ("the OMA and the Court should not be exploited by the filing of an OMA claim * * * for which, as Relator himself now states, another person wanted him to file as soon as possible"), 23 ("the OMA should not be used as a weapon when there is a policy dispute among members of the board"), and 29 ("[t]his is a case of using the OMA for a purpose it was not intended to be used for").

{¶10} On October 12, 2021, a hearing was held to determine the issue of frivolous conduct. There is no transcript of this hearing in the record before this court.

{¶11} On October 26, 2021, the trial court issued a Judgment Entry determining that Ames' lawsuit constituted frivolous conduct:

Upon reexamination of Mr. Ames' original complaint and evidence relating to it the Court finds the allegations to be trivial, unfounded and brought for an improper purpose. The action is based upon political opposition to a decision of the majority of the Board to take certain personnel action. The evidence reveals the action was filed by Mr. Ames at the direction of a member of the Respondent Board. This constitutes a violation of R.C. 2323.51 (A)(2)(a)(i), improper purpose. The OMA claim was not made in good faith. The purpose of the statute is to ensure openness and transparency in the manner in which the government conducts business. It is not a tool to litigate policy or political disputes.

In addition, the Court finds Relator's claims to be frivolous because they are unwarranted under existing law and cannot be supported by a good faith argument for the establishment of new law. (See: R.C. 2323.51 (A)(2)(a)(ii).) Specifically here the Court refers to a plain reading of the Board's minutes of 4-9-20 stating the purpose of executive session was to consider the employment of a public employee. The Board's subsequent action to stay a human resource department's succession plan relates directly and clearly to the stated reason for the executive session.

Finally the Court finds from the evidence [that] Respondents are entitled to attorney fees in the amount of $330.98; costs to be paid by Relator.

{¶12} On October 28, 2021, Ames filed a Notice of Appeal. On appeal, he raises the following assignments of error:

[1.] The trial court erred by finding, sua sponte, a violation of R.C. 2323.51 (A)(2)(a)(i), improper purpose thereby denying Mr. Ames his rights to due process of law under the Fourteenth Amendment of the United States

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