Steven R. Keller, Federal Public Defender for the Southern District of Ohio v. City of Columbus

• Decision Date: 19 February 2002
• Docket Number: 02-LW-0476,01AP-1045
• Citation: 2002 Ohio 622
• Parties: Steven R. Keller, Federal Public Defender for the Southern District of Ohio et al., Plaintiff-Appellants v. City of Columbus et al., Defendants-Appellees
• Court: Ohio Court of Appeals

2002-Ohio-622

Steven R. Keller, Federal Public Defender for the Southern District of Ohio et al Plaintiff-Appellants v. City of Columbus et al Defendants-Appellees

No. 01AP-1045

02-LW-0476 (10th)

Court of Appeals of Ohio, Tenth District, Franklin County.

February 19, 2002

APPEAL from the Franklin County Court of Common Pleas.

Gittes & Schulte, Frederick M. Gittes and Kathaleen B. Schulte, for appellants.

Janet E. Jackson, City Attorney, and Glenn B. Redick, for appellee City of Columbus.

Vorys Sater, Seymour & Pease, James E. Phillips and John J Kulewicz, for appellee Fraternal Order of Police, Capital City Lodge No. 9.

OPINION

TYACK P.J.

On January 19, 2000, Steven R. Keller, Federal Public Defender for the Southern District of Ohio, the Ohio Civil Rights Coalition, Copwatch, and the Columbus Employment Lawyers Association filed a complaint in the Franklin County Court of Common Pleas against the City of Columbus and James G. Jackson, in his official capacity as Chief of the Columbus Division of Police (collectively referred to as "city"). The plaintiffs averred, in essence, that the city was in violation of the Ohio Public Records Act and/or the rules of the city records commission by including in the collective bargaining agreement and negotiations thereof between the city and the Fraternal Order of Police, Capital City Lodge No. 9 ("FOP") provisions relating to the disposal of public records. On February 1, 2000, the FOP filed a motion to intervene.

On February 28, 2000, the city filed a motion to dismiss pursuant to Civ.R. 12(B)(6). The plaintiffs filed a memorandum contra. On April 12, 2000, the plaintiffs filed an amended complaint (which the trial court subsequently granted leave to file instanter) adding a petition for a writ of mandamus. The plaintiffs alleged that a request for public records had been made and that the city, pursuant to the terms of the FOP collective bargaining agreement, had failed and refused to produce all of the records requested.

On November 30, 2000, the trial court granted the FOP's motion to intervene. In addition, pursuant to the Supreme Court of Ohio's recent decision in State ex rel. Dispatch Printing Co. v. Columbus (2000), 90 Ohio St.3d 39, the trial court "resolved" the mandamus petition and ordered the defendants to comply with the public records request.

Thereafter, both the city and the FOP filed motions to dismiss the amended complaint, incorporating any previous arguments. The city and the FOP contended, in part, that if a public body violated public records law, such law provides for certain remedies, none of which permitted interference with collective bargaining rights and negotiations. The plaintiffs filed memoranda contra the motions to dismiss.

On August 7, 2001, the trial court rendered a decision granting the city's and the FOP's motions to dismiss. A judgment entry was journalized on August 15, 2001.

The plaintiffs (hereinafter "appellants") have appealed to this court, assigning two errors for our consideration:

1. The trial court committed reversible error in concluding that the collective bargaining agreement between the City and FOP calls for destruction of police personnel records pursuant to the rules promulgated by the City's Records Commission and the Public Records Act, where the factual allegations contained in the first amended complaint are that the contract terms are in conflict with the Records Retention Schedule.

2. The trial court committed reversible error in concluding that only when and if (1) the City and FOP proceed to destroy public records at the expiration of the retention period, or (2) when or if the CRC personnel record retention schedule is changed, may appellants conceivably have a viable claim for violation of R.C. 149.351, where the amended complaint alleges that the negotiations and enforcement of the FOP contract threaten the destruction of public records, in violation of the Public Records Act, and where the overwhelming case law holds that public records destruction is not a proper subject of private contracts.

Appellants' assignments of error are interrelated and, therefore, will be addressed together. In essence, appellants contend the trial court erred in granting the motions to dismiss. A Civ.R. 12(B)(6) motion to dismiss tests the sufficiency of the complaint. State ex rel. Boggs v. Springfield Local School Dist. Bd. of Edn. (1995), 72 Ohio St.3d 94, 95. In reviewing a motion to dismiss, the court must take all material allegations in the complaint as admitted and construe all reasonable inferences in favor of the nonmoving party. Id. In order to grant a motion to dismiss, it must appear beyond doubt from the complaint that the plaintiff can prove no set of facts entitling him or her to recovery. Id., citing O'Brien v. Univ. Community Tenants Union, Inc. (1975), 42 Ohio St.2d 242, syllabus.

Initially, we note that the trial court considered evidence beyond the allegations set forth in the complaint. Specifically, the trial court considered the collective bargaining agreement between the city and the FOP (hereinafter collectively referred to as "appellees") and the city's records retention schedule. The trial court concluded that in terms of retention periods, the collective bargaining agreement "mirrors" the city's records retention schedule. (Trial court decision at 5.) A trial court errs when it considers matters or evidence outside the pleadings in ruling on a motion to dismiss unless, upon notice to the parties, the motion is converted into a motion for summary judgment. Boggs at 96; Estate of Sherman v. Millhon (1995), 104 Ohio App.3d 614, 617. However, an error in this regard may be considered harmless if absent consideration of the outside materials, dismissal was still proper. See Shamansky v. Massachusetts Fin. Serv. Co. (1998), 127 Ohio App.3d 400, 404, discretionary appeal not allowed in (1998), 83 Ohio St.3d 1435.

This court reviews the merits of a motion to dismiss independently from the trial court's decision. Crestmont Cleveland Partnership v. Dept. of Health (2000), 139 Ohio App.3d 928, 936, discretionary appeal not allowed in (2001), 91 Ohio St.3d 1419. In our review of appellees' motions to dismiss, this court does not consider the FOP collective bargaining agreement or the city's records retention schedule. Rather, we consider only the allegations set forth in the complaint and construe any reasonable inferences therein in favor of appellants. For the reasons that follow, we determine that the trial court correctly dismissed some of appellants' claims but that dismissal was inappropriate as to one of appellants' claims and the relief requested thereunder. Further, as to this claim, the trial court committed reversible error in considering matters outside the complaint.

First, we examine the amended complaint in order to discern the allegations and claims set forth therein. The amended complaint states, in pertinent part:

1. This is an action for injunctive and declaratory relief *** to enjoin the City from continuing to unlawfully negotiate with the *** FOP, concerning the City's disposition of public records under the Ohio Public Records Act. The action stems from the current contract negotiations between the City and the FOP in which, based on information and belief, the City and the FOP are attempting to subvert the City's duties under Ohio's public records laws by a contractual provision incorporated in the collective bargaining agreement which would unlawfully limit the discretion of the City Records Commission to determine records retention schedules for the Division of Police. Upon information and belief, the City and the FOP are also attempting to negotiate provisions which require the destruction and removal of "member identifiable information" from public records, in violation of the Public Records Act. This action arises under the common law of Ohio and Revised Code §§ 149.351, 149.39, and 149.43.

***

13. The contract between the City and the FOP expired on December 11, 1999, and, based upon information and belief the parties are negotiating the terms of a new contract.

14. Under Sections 10.10 and 10.11 of the FOP contract which just expired, the City and the FOP agreed to the destruction of personnel records and "member identifiable information" regarding FOP members in violation of the Ohio Public Records Act and the City Records Commission's duties and responsibilities.

15. For example, Section 10.11 requires the removal of "member identifiable information" from the electronic database of disciplinary action against police officers.

16. The City's Records Retention Schedule, however, does not provide any schedule for destruction or removal of such information.

17. The removal of "member identifiable information" from the electronic database would render the database unusable.

18. Section 10.10 calls for the destruction and removal of personnel records, however, under the Ohio Public Records Act and the Columbus City Code, no destruction of records can be accomplished without the approval of the State Auditor.

***

22. Pursuant to the contract, the FOP has pursued grievances concerning the removal, destruction and/or maintenance of division records. *** Such arbitrations are conducted in secret and without public participation. As a result, arbitrators have made rulings contrary to the public interest and the Ohio Public Records Act without the public having any opportunity to prevent the unlawful results of such arbitrations for lack of notice o[r] knowledge.

23. The City as an employer, subject to Ohio's collective bargaining laws, is not able to represent fully the interest of the public concerning public records. In fact, the City has multiple conflicting

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