The State Ex Rel. Am. Civil Liberties Union of Ohio Inc. v. Cuyahoga County Bd. of Commissioners

• Decision Date: 16 February 2011
• Docket Number: No. 2010–0728.,2010–0728.
• Citation: 128 Ohio St.3d 256,943 N.E.2d 553
• Parties: The STATE ex rel. AMERICAN CIVIL LIBERTIES UNION OF OHIO, INC.v.CUYAHOGA COUNTY BOARD OF COMMISSIONERS et al.
• Court: Ohio Supreme Court

128 Ohio St.3d 256

943 N.E.2d 553

2011 -Ohio- 625

The STATE ex rel. AMERICAN CIVIL LIBERTIES UNION OF OHIO, INC.

v.CUYAHOGA COUNTY BOARD OF COMMISSIONERS et al.

No. 2010–0728.

Supreme Court of Ohio.

Submitted Jan. 4, 2011.Decided Feb. 16, 2011.

Carrie L. Davis, Staff Counsel, James L. Hardiman, Legal Director, and Melvyn Durchslag, Michael T. Honohan, and Brian J. Laliberte, Cooperating Counsel, for relator.

William D. Mason, Cuyahoga County Prosecuting Attorney, and David G. Lambert and Charles E. Hannan, Assistant Prosecuting Attorneys, for respondents Cuyahoga County Board of Commissioners and the individual commissioners and Cuyahoga County Transition Advisory Group and its members.Thompson Hine, L.L.P., Steven S. Kaufman, Kip T. Bollin, Gary L. Walters, Lorraine Evelyn Gaulding, and Barbara A. Lum, Cleveland, for respondents Cuyahoga County Transition Executive Committee and its members.PER CURIAM.

Per Curiam.

[Ohio St.3d 256] {¶ 1} This is an action for a writ of mandamus to compel respondents, the Cuyahoga County Board of Commissioners and the individual commissioners, the Cuyahoga County Transition Advisory Group (“TAG”) and its members, and the Transition Executive Committee (“TEC”) and its members, to provide access to the records and meeting minutes of TEC and its workgroups pursuant to Ohio's Sunshine Laws, R.C. 121.22 and 149.43. Because relator, American Civil Liberties Union of Ohio, Inc. (“ACLU”), has not established its entitlement to the requested extraordinary relief, we deny the writ.

Facts

{¶ 2} In November 2009, Cuyahoga County voters adopted a county charter that replaces the county's three-member board of commissioners with an elected county executive and council, changes several county offices from elected to appointed positions, and reorganizes or eliminates certain departments. The charter became effective in January 2010, with the new county government effective in January 2011.

{¶ 3} Under Section 13.07 of the Cuyahoga County Charter, the board of county commissioners created TAG, which had a duty to develop recommendations for the transition to the new county government:

{¶ 4} “The Board of County Commissioners, not later than March 2010, shall designate three senior administrative officials of the County to act as a Transition Advisory Group, which shall develop recommendations for the orderly and efficient transition to the operation of the County government under the provisions of this Charter and shall work with the newly elected County officials. The Board of County Commissioners shall provide necessary facilities and support for [Ohio St.3d 257] the Transition Advisory Group and shall make provision in the budget of the County for the salaries of the elected officers who are to take office in January 2011 and for such other matters as shall be necessary and practicable to provide for the transition. All County officials and employees shall cooperate with the Transition Advisory Group by providing such information and documents as the Transition Advisory Group shall request in connection with the performance of its duties under this section and shall use their best efforts to assist the newly elected County officials and their designees and representatives in implementing the transition.”

{¶ 5} Pursuant to this section of the charter, on November 19, 2009, the Cuyahoga County Board of Commissioners designated James McCafferty, the county administrator, Gary Holland, the director of the county Department of Justice Affairs, and Joseph Nanni, the county director of human resources, to act as the TAG.

{¶ 6} At a Gund Foundation dinner in early December 2009, both McCafferty and Martin Zanotti, the chairperson of New Cuyahoga Now (“NCN”), a private entity that had drafted the new charter and guided the campaign for its passage, spoke about county-transition issues. Following discussion between McCafferty and Zanotti, TAG invited NCN and the Greater Cleveland Partnership ¹ (“GCP”) to form a comprehensive civic coalition that would represent and work with all sectors of the community during the transition period and beyond.

{¶ 7} NCN and GCP accepted the invitation and created a steering committee, the TEC, to oversee the creation of workgroups as part of the committee. TEC has eight members, including its cochairpersons, McCafferty and Zanotti. The workgroups comprise community leaders, county employees, and private citizens who volunteered to participate in the transition based on their expertise and interest in the specific subject-matter areas of the workgroups. Thirteen workgroups were ultimately created: Public Engagement Committee, County Government Collaboration Committee, Code of Ethics Workgroup, Finance & Administration Workgroup, Justice Services Workgroup, Human Services Workgroup, Human Resources Workgroup, Human Capital/Quality Places Workgroup, Information Technology Workgroup, Procurement & Public Works Workgroup, Economic Development Workgroup, County Council Planning Workgroup, and Boards & Commissions Workgroup.

{¶ 8} Under the general transition structure, TEC was to review and approve recommendations offered by the workgroups and forward approved recommendations[Ohio St.3d 258] to TAG for review, approval, and submission to the newly elected county executive and council by November 2010. But TAG is free to disregard any recommendations made by TEC or the workgroups, and TEC and the workgroups retain their independent right to present recommendations directly to the county executive and council notwithstanding TAG's disapproval.

{¶ 9} Neither the commissioners nor TAG created TEC or the workgroups, and TAG did not delegate any of its charter-mandated duties to TEC or the workgroups. TEC receives no guidance or direction from TAG, and although county employees serve on TEC and various workgroups, they have no official authority to direct or make decisions on behalf of TEC or any workgroup.

{¶ 10} TAG has received $7,000,000 in funding from the county, but none of that money has been allocated to TEC or the workgroups. The only operational assistance provided by the board of commissioners and TAG to TEC and the workgroups was posting information about TAG, TEC, and the workgroups on the county website for the transition and providing meeting space for some of the workgroups. NCN has received money entirely from private sources to support its efforts. In essence, TEC and the workgroups are independent of any government entity or process.

{¶ 11} On February 11, 2010, shortly after media reports that McCafferty and Zanotti had stated that transition workgroups should be able to conduct business in private, TAG issued a press release entitled “Transition Advisory Group Committed to Open Meetings,” in which it “reaffirmed the importance of transparency and openness to the formation of a new county government by opening all work group meetings to the public.” As announced in the release, “[m]inutes of the Transition Work Groups and scheduled meeting dates, times and locations will also be posted on the Cuyahoga County Website.”

{¶ 12} Consistent with the press release, information about meetings of TAG, TEC, and any committees, subcommittees, or workgroups assembled under TEC, including the dates, times, locations, and minutes of the meetings, has been made available to the public through regular postings on the county's transition website, http:// charter. cuyahogacounty. us/ en- US/ home. aspx. For example, the meeting dates, locations, agendas, and minutes for all of TEC's meetings have been posted on the website, and the meetings have been open to the public.

{¶ 13} By letter dated February 17, 2010, relator, American Civil Liberties Union of Ohio, Inc. (“ACLU”), submitted a request addressed to the Cuyahoga County Board of Commissioners and County Administrator McCafferty pursuant to R.C. 149.43 and Section 12.06 of the Cuyahoga County Charter for certain records relating to the transition to the new county government, including (1) “[r]ecords of whether any members of the Transition Advisory Group (‘TAG’), its committees, subcommittees, or workgroups have completed the public records [Ohio St.3d 259] training that is required for elected officials and their designees pursuant to Revised Code Section 109.43,” (2) “policies or procedures (official or unofficial) used in the formation of any committees, subcommittees, or workgroups established by or under the TAG,” (3) a “list of the names of each individual/volunteer who is serving or has served on a committee, subcommittee, or workgroup under the TAG,” (4) “[f]ull copies of minutes to all TAG or subcommittee meetings that have already been held,” and (5) “[f]ull copies of any documents or reports created by TAG or any of its subcommittees.”

{¶ 14} A couple of weeks later, the county prosecutor's office submitted a response to the ACLU's records request on behalf of the board and McCafferty. In the response, the county specified that for the second, fourth, and fifth categories of requested records, it would provide access to records of TAG, which it conceded was a public body for purposes of the Sunshine Laws, but it could not provide access to the records of TEC and the various transition workgroups because, inter alia, TAG did not create the workgroups, and the workgroups were “private, unincorporated associations” rather than “public bodies.” The county stated, “[N]either the [board of county commissioners] nor Mr. McCafferty can respond * * * to those portions of your letter that are not directed to TAG, but are instead directed to those various voluntary associations formed by interested members of the public to provide community input to the TAG.”

{¶ 15} Further, the county noted that it had no records for the first category of requested records—public-records training for TAG members—because they were not elected officials or their designees subject to R.C. 109.43. As to the third...