State ex rel. Ames v. Mahoning Cnty. Bd. of Elections
| Docket Number | 23 MA 0037 |
| Decision Date | 20 December 2023 |
| Citation | 2023 Ohio 4747 |
| Parties | STATE EX REL. BRIAN M. AMES, Relator-Appellant, v. MAHONING COUNTY BOARD OF ELECTIONS ET AL., Respondents-Appellees. |
| Court | Ohio Court of Appeals |
Civil Appeal from the Court of Common Pleas of Mahoning County Ohio Case No. 22 CV 1528
Brian M. Ames, Pro se, Relator-Appellant and
Atty Gina DeGenova, Mahoning County Prosecutor, Atty. Linette Stratford and Atty. Jacqueline M. Johnston, Assistant Prosecuting Attorneys, Mahoning County Prosecutor's Office, for Respondents-Appellees.
BEFORE: Mark A. Hanni, Cheryl L. Waite, Carol Ann Robb Judges.
OPINION AND JUDGMENT ENTRY
{¶1} Relator-Appellant, Brian M. Ames (Appellant), pro se, appeals the February 8, 2023 judgment of the Mahoning County Court of Common Pleas granting a Civ. R. 12(B)(6) motion to dismiss his case filed against Respondents-Appellees, Mahoning County Board of Elections and David J. Betras, Sandra A. Barger, Robert L. Aurandt, and Joyce Kale-Pesta in their official capacities as members of the Board of Elections (collectively Appellees). For the following reasons, we affirm the trial court's judgment in part and reverse in part.
{¶2} On August 29, 2022, Appellant, as a taxpayer, filed a verified complaint in mandamus, declaratory judgment action, and an injunction request for enforcement of the Open Meetings Act, R.C. 121.22 (OMA) against Appellees. Appellant alleged that in four board of elections sessions, Appellees entered into executive sessions for subject matter that was not specifically excepted under the OMA. He identified the sessions held on September 7, 2021, February 12, 2022, April 14, 2022, and August 22, 2022.
{¶3} Appellant averred that the meeting minutes for September 7, 2021 reflected that a member of the public presented evidence protesting the granting of a liquor permit petition, and Appellees went into executive session for reasons not excepted under the OMA. Appellant attached a copy of a portion of those meeting minutes.
{¶4} Appellant further alleged that Appellees violated the OMA by entering into executive session "to discuss personnel and county policy" during the February 12, 2022 meeting and invited the Assistant Prosecutor into the meeting. Appellant attached a copy of a portion of those meeting minutes.
{¶5} He also averred that the April 14, 2022 meeting minutes showed that Appellees violated R.C. 121.22 by entering into executive session "to discuss personnel matters." Appellant attached the entirety of these meeting minutes.
{¶6} Appellant cited a YouTube link to a video of Appellees' August 22, 2022 meeting and alleged that it showed Appellees violating R.C. 121.22 by going into executive session "to seek legal counsel."
{¶7} Appellant contended that none of the identified executive sessions were held for a matter specifically excepted by R.C. 121.22 and the public was excluded from these sessions. He asserted that each session constituted a separate OMA violation.
{¶8} In the second count of his complaint, Appellant asserted that the meeting minutes for the identified meetings violated R.C. 121.22(C) and R.C. 149.43 because they were "barebones" summaries, rather than full and accurate minutes. He averred that the executive sessions and the content of those sessions were not mentioned in the minutes. He alleged that each failure to promptly prepare and file full and accurate minutes constituted a separate violation of R.C. 121.22 and R.C. 149.43.
{¶9} Appellant requested that the court find that Appellees violated the OMA and issue a mandatory injunction enjoining it to comply with R.C. 121.22 as mandated by R.C. 121.22(I)(1). He also requested that the court order Appellees to pay him a $500 civil forfeiture as required under R.C. 121.22(I)(2)(a) for each violation, as well as his costs and reasonable attorney fees. He further requested that the court declare invalid all resolutions, rules or actions taken in those executive meetings pursuant to R.C. 121.22(H), and order Appellees to correct the meeting minutes.
{¶10} On November 18, 2022, Appellees filed a Civ. R. 12(B)(6) motion to dismiss Appellant's complaint. Appellees asserted that each of the identified executive sessions was for a legally permissible reason or was a legally permissible gathering that was not subject to the OMA. Appellees contended that Appellant failed to overcome his burden to show that it acted outside of its duties. Appellees noted the presumption of regularity afforded when conducting ordinary duties and asserted that Appellant did not overcome that presumption.
{¶11} Appellees asserted that the September 7, 2021 minutes established that after an individual presented arguments and evidence protesting a liquor option petition, it moved to enter into executive session "to confer with Ms. Sharon Hackett, Assistant Prosecutor, our legal counsel." Appellees contended that R.C. 121.22(G)(3) allows public bodies to enter into executive session to confer with legal counsel about disputes of the public body that are the subject of pending or imminent court action. Appellees also maintained that it was acting in a quasi-judicial manner and therefore was not subject to the OMA when it entered into executive session to discuss the protest matter with legal counsel.
{¶12} Appellees asserted that the executive session entered into at the February 12, 2022 meeting was to confer with legal counsel and nothing in the minutes suggested that any action or deliberation was made as a result of discussion during this time. Appellees submitted that it may enter into executive session to discuss personnel matters under R.C. 121.22(G)(1).
{¶13} Appellees contended that the executive session held during the April 14, 2022 meeting was also to discuss personnel matters as permitted by R.C. 121.22.
{¶14} Appellees asserted that it entered into executive session on August 22, 2022 to consult with legal counsel. Appellees noted that before the motion to enter into executive session, it discussed issues relating to the liquor options, stated that it would be asking legal questions about issues relating to those options, and would potentially discuss the nominating petitions of two candidates.
{¶15} Appellees asserted that since Appellant provided the website on YouTube for the August 22, 2022 meeting, the court could refer to the YouTube videos of the other meetings that he identified. Appellees contended that the videos of those meetings supported its position as to each of the executive sessions.
{¶16} Appellees further asserted attorney-client privilege regarding the sessions in which it sought the assistance of legal counsel. It submitted that attorney-client privileged communications fall under R.C. 121.22(G)(5)'s allowance of executive session for "matters required to be kept confidential by federal law or regulations or state statutes."
{¶17} Finally, Appellees asserted that its meeting minutes were legally sufficient. It maintained that the minutes met the requirements set forth in White v. Clinton County Board of Commissioners, 76 Ohio St.3d 416, 424, 1996-Ohio-380, 667 N.E.2d 1223, because they contained "sufficient facts and information to permit the public to understand and appreciate the rationale behind the relevant public body's decision."
{¶18} In his reply brief, Appellant asserted that he had the initial burden of production and persuasion to prove that R.C. 121.22 was violated when he filed his complaint. He stated that he met the burden by showing that the meetings occurred, the public was excluded from the executive sessions, reasonable notice was not given, and minutes were not prepared and posted for public inspection. He contended that once he met this burden, the burden shifted to Appellees to produce evidence that the executive sessions fell under one of the exceptions in R.C. 121.22(G). Appellant indicated that if Appellees met that burden, the burden would shift back to him to show that the exceptions claimed by Appellees did not apply or were invalid.
{¶19} Appellant further maintained that when determining the motion to dismiss, the court could not rely on allegations outside of the complaint. Appellant contended that he did not need to provide documentation with his complaint and the court could not consider documentation, such as meeting minutes or videos, in deciding the motion to dismiss. Appellant also asserted that Appellees were not entitled to a presumption of regularity because Civ. R. 12(B)(6) requires the court to make inferences in his favor.
{¶20} On December 1, 2022, Appellees filed a notice of supplemental authority, citing the Ohio Supreme Court's decision in State ex rel. Hicks v. Clermont County Board of Commissioners, 171 Ohio St.3d 593, 2022-Ohio-4237, 219 N.E.3d 894. Appellees asserted that the Court was asked to adopt the burden-shifting standard set forth by the Twelfth District in State ex rel. Hardin v. Clermont County Board of Elections, 12th Dist. 2012-Ohio-2569, 972 N.E.2d 115, which required a public body to prove that it entered into executive session for a proper purpose once a complaint was filed alleging a violation of the OMA.
{¶21} Appellees submitted that the Ohio Supreme Court declined to adopt the Hardin burden-shifting analysis and held that a plaintiff must prove a violation of the OMA and a public body is not required to prove that no violation had occurred. Appellees concluded that Appellant's complaint in this case was based upon the Hardin burden-shifting and contained mere allegations without supporting evidence. Appellees emphasized that the Hicks Court discussed a public body's presumption of regularity while carrying out its duties. Appellees stated that the Court held that this...
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