State, ex rel. Kinsley, v. Berea Bd. of Edn.

• Decision Date: 17 October 1990
• Docket Number: No. 56817,56817
• Citation: 582 N.E.2d 653,64 Ohio App.3d 659
• Parties: , 71 Ed. Law Rep. 237 The STATE, ex rel. KINSLEY, v. BEREA BOARD OF EDUCATION et al.
• Court: Ohio Court of Appeals

Page 659

64 Ohio App.3d 659

582 N.E.2d 653, 71 Ed. Law Rep. 237

The STATE, ex rel. KINSLEY, v. BEREA BOARD OF EDUCATION et al.

No. 56817.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Decided Oct. 17, 1990.

Ronald G. Macala and Randall Vehar, Canton, for relator.

Mary Lentz, Cleveland, for respondents.

DYKE, Presiding Judge.

Relator, Kay Kinsley, is seeking a writ of mandamus compelling respondents, the Berea Board of Education and its individual members (the "board"), to make available for inspection pursuant to R.C. 149.43, (1) settlement agreements entered into between the board and thirteen teachers and (2) other documents depicting, among other things, salary schedules and back-pay allowances for each of the thirteen teachers. For the following reasons we allow the writ of mandamus.

On January 12, 1987, the board enacted a resolution which (1) authorized the superintendent, the director of personnel and employee relations and the board's attorneys to enter into agreements with thirteen teachers regarding back pay and placement on the school district salary schedules; (2) authorized the same parties to enter into a settlement agreement with one of the thirteen teachers to resolve issues related to an action filed by the teacher in the Cuyahoga County Court of Common Pleas; and (3) authorized the total payment of $21,050 pursuant to R.C. 121.22. Since January 1987, relator has sought to obtain copies of the agreements between the board and the teachers and copies of documents which would reveal the amount paid to each teacher, the formula used to determine the amount paid, the number of steps each teacher was raised on the salary schedule, the formula used to determine placement on the salary schedule, and any other purpose for which the January 12 resolution funds were used. The board provided a number of documents to relator, but relator claims she cannot discern from them the information sought. The board has not made the settlement agreements available.

On December 2, 1988, relator brought this mandamus action. Respondents filed a motion to dismiss which was converted to a motion for summary judgment in order to consider the attached evidentiary material. Respondents contend the settlement agreements are not subject to disclosure when R.C. 149.43, Ohio's public records law, is read in pari materia with R.C. 121.22, Ohio's open meetings law, and are specifically exempted from disclosure as trial preparation records pursuant to R.C. 149.43(A)(4). Respondents also argue the board members are not amenable to suit individually because the board acted collectively when it passed the resolution authorizing the settlement agreements. Relator moved for summary judgment, maintaining the requested documents are public records and therefore subject to inspection pursuant to R.C. 149.43. Relator also requested attorney fees and relies on the documents attached to respondents' motion to dismiss to demonstrate respondents' continuing course of bad faith noncompliance. Following an in camera inspection of the settlement agreements, we conclude the settlement agreements are public documents and not records exempted from disclosure and therefore grant a writ of mandamus compelling disclosure. Relator's request for attorney fees, however, is denied. Relator's motion for summary judgment is granted in part and denied in part and respondents' motion to dismiss is denied.

I Settlement Agreements

Any record that is kept by any governmental unit, including any school district unit, unless specifically exempted or prohibited from release by any state or federal law, must be made available for inspection to any member of the general public. R.C. 149.43. When any governmental unit refuses to release records, the burden of proving that the records are exempted from disclosure under an R.C. 149.43 exception or other state or federal law is on the governmental unit. State, ex rel. Natl. Broadcasting Co., v. Cleveland (1988), 38 Ohio St.3d 79, 526 N.E.2d 786, paragraph two of the syllabus; Woodman v. Lakewood (1988), 44 Ohio App.3d 118, 541 N.E.2d 1084. Moreover, the exceptions from disclosure are to be narrowly construed and all doubts are to be resolved in favor of disclosure. Natl. Broadcasting, supra, 38 Ohio St.3d at 83-85, 526 N.E.2d at 789-792.

A Trial Preparation Record Exception

Respondents assert the settlement agreements are trial preparation records and therefore are excepted from disclosure. They contend the settlement agreements represent subjective evaluations of litigation and were prepared in defense of existing litigation with one teacher and in reasonable anticipation of future litigation with other teachers. Relator responds that the settlement agreements are not records prepared for possible use at trial but are contracts entered into to avoid litigation, and that once a settlement is reached, the result should be open to public scrutiny.

We agree with relator's rationale. A trial preparation record is "any record that contains information that is specifically compiled in reasonable anticipation of, or in defense of, a civil or criminal action or proceeding, including the independent thought processes and personal trial preparation of an attorney." R.C. 149.43(A)(4); see Natl. Broadcasting, supra, 38 Ohio St.3d at 84-85, 526 N.E.2d at 790-792; Barton v. Shupe (1988), 37 Ohio St.3d 308, 525 N.E.2d 812. A settlement agreement is not a record compiled in anticipation of or in defense of a lawsuit. It simply does not prepare one for trial. A settlement agreement is a contract negotiated with the opposing party to prevent or conclude litigation. Consequently, although the parties and their attorneys subjectively evaluated the litigation confronting them in order to reach a settlement, the settlement agreement itself contains only the result of the negotiation process and not the bargaining discourse which took place between the parties in achieving the settlement. Moreover, under varying circumstances, courts in other states have found no valid reason for secreting documents which designate how tax dollars are spent, either directly or indirectly through insurance premiums, by public bodies to settle disputes. See Register Division of Freedom Newspapers, Inc. v. County of Orange (1984), 158 Cal.App.3d 893, 205 Cal.Rptr. 92; News & Observer Pub. Co. v. Wake Cty. Hospital System, Inc. (1981), 55 N.C.App. 1, 284 S.E.2d 542; Daily Gazette Co. v. Withrow (W.Va.1986), 350 S.E.2d 738. In light of our Supreme Court's stated philosophy to narrowly construe the R.C. 149.43 exceptions and to resolve all doubts in favor of disclosure, State, ex rel. Outlet Communications, Inc., v. Lancaster Police Dept. (1988), 38 Ohio St.3d 324, 328, 528 N.E.2d 175, 178-179, we believe that including settlement agreements as trial preparation records would amount to an overly broad interpretation of the exception and one beyond the scope anticipated by its drafters. We therefore hold that settlement agreements entered into by a governmental unit are public records and are not trial preparation records pursuant to R.C. 149.43(A)(4).

B Open Meetings Law

Respondents next contend the settlement agreements are exempted from disclosure pursuant to R.C. 121.22, which provides for open meetings of governmental bodies, when read in pari materia with R.C. 149.43. Specifically, respondents argue that R.C. 121.22(G)(3), which exempts conferences with an attorney for the public body concerning pending or imminent court action from the open meeting requirement, exempts settlement agreements from disclosure.

While R.C. 121.22(G)(3) permits a governmental body to privately discuss litigation, the statute expressly invalidates any resolution, rule or formal action adopted in the closed session unless the resolution, rule or formal action is adopted in an open meeting. See R.C. 121.22(H). Thus, once a conclusion is reached regarding pending or imminent litigation, the conclusion is to be made public, even though the deliberations leading to the conclusion were private. Since a settlement agreement contains the result of the bargaining process rather than revealing the details of the negotiations which led to the result, R.C. 121.22(G)(3), which exempts from public view only the conferences themselves, would not exempt a settlement agreement from disclosure.

II Other Documents

In addition to the settlement agreements, relator requested documents revealing the teachers' salary schedule and the formulas used to...