State ex rel. Mun. Constr. Equip. Operators' Labor Council v. Cleveland , 2019 Ohio 1889 ( 2019 )


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  • [Cite as State ex rel. Mun. Constr. Equip. Operators' Labor Council v. Cleveland, 
    2019-Ohio-1889
    .]
    COURT OF APPEALS OF OHIO
    EIGHTH APPELLATE DISTRICT
    COUNTY OF CUYAHOGA
    STATE EX REL. MUNICIPAL
    CONSTRUCTION EQUIPMENT
    OPERATORS’ LABOR COUNCIL,                                  :
    Relator,                              :
    No. 107585
    v.                                    :
    CITY OF CLEVELAND, ET AL.,                             :
    Respondents.                          :
    _______________________________________
    JOURNAL ENTRY AND OPINION
    JUDGMENT: DENIED
    DATED: May 10, 2019
    Writ of Mandamus
    Motion No. 520481
    Order No. 527374
    Appearances:
    Climaco Wilcox Peca Tarantino & Garfield, and Roll D.
    Stewart, for relator.
    Barbara A. Langhenry, Director of Law, and Mark V.
    Webber, Assistant Director of Law, for respondent.
    EILEEN T. GALLAGHER, P.J.:
    {¶ 1}        On August 23, 2018, the relator, the Municipal Construction Equipment
    Operators’ Labor Council (“the Union”), commenced this public records mandamus action
    against the respondents, the city of Cleveland and its Civil Service Commission (“Cleveland”), to
    compel them to produce the application files of, and test reports for, 16 specified individuals for
    a noted position.      The Union had made this request through email on August 1, 2018, and had
    asked that the records be sent by email.
    {¶ 2}        The court referred this case to its mediation office, which appeared to mediate a
    successful resolution of the matter including the release of the requested records. In order to
    establish on the record what had been resolved, the court ordered the parties to certify the status
    of the case by stating for each record request what records have been released and when and how
    they were released. Additionally, the respondents were to state what, if any, redactions had been
    made with supporting legal authority for the redactions. If the Union believed that its requests
    had not been satisfied, it was to support that belief with substantiation.
    {¶ 3}        Cleveland certified that, by August 20, 2018, it had provided requested records
    through emails with a link to the requested records. Furthermore, Cleveland certified that in
    August and September 2018, it had reprovided the link to the records. Additionally, in an
    exhibit accompanying the certification, Cleveland attached approximately 200 pages of records,
    including 16 pages explaining redactions.
    {¶ 4}        The Union certified that there were deficiencies in the released records. First, it
    was the Union’s understanding that the tests were scored twice; the first scoring showed only
    four or five applicants passing the test. This first score had not been produced. Second, there
    were no answers to the supplemental questions on the application about education, certifications,
    and experience. Third, Cleveland did not provide its investigation of the applicants’ resumes
    and work history. Finally, the Union complained that Cleveland had not complied with the
    requests, because it had provided a link to the records that was hard to open and had not
    transmitted the records directly. The Union did not contest any redaction.
    {¶ 5}      In a February 26, 2019 journal entry, the court noted that it had examined the
    released records and that they appeared to be complete and consistent. Moreover, most of the
    Union’s objections were not well-founded. The court’s examination of the records showed that
    the 16 individuals had answered the supplemental questions.                The difference between
    transmitting the records and providing a link to the records was de minimis.         Next, the court
    ruled that the failure to release records of the respondents’ investigation of the applicants or of an
    independent analysis of the applicants’ work history was beyond the scope of the original
    request. Furthermore, the court declined to expand the original request, especially because there
    was no evidence that the respondents had made such investigations.
    {¶ 6}      Finally, the court examined the last objection that the tests were scored twice.
    Because of the careful wording of the objections, the court noted that it is easy to speculate that it
    is based on hearsay, rather than the substantiation sought by the court. Thus, the court directed
    the Union to show cause with evidentiary-quality material why the case should not be considered
    moot and why it believes that there are outstanding records that come within the scope of its
    initial request.
    {¶ 7}      On March 4, 2018, the Union replied that there were no records that reflected an
    Experience Evaluation for any applicant. The court finds this unpersuasive. Pages 127 through
    155 of Cleveland’s December 6, 2018 response, exhibit No. 3, Part 2, contains “Experience
    and/or Academic Training Evaluation.” This score sheet awards points for meeting minimum
    qualifications and additional points for directly and indirectly related work experience.
    {¶ 8}     The other objection was that the Equipment/Practical Test results state that the
    tests were administered July 10-13, 2018, but the final list says an examination date of July 20,
    2018. The Union states that there are no records explaining the inconsistency.          As with all
    writs, a relator in a public records mandamus action must establish the right to the writ by clear
    and convincing evidence. State ex rel. Pressley v. Indus. Comm. of Ohio, 
    11 Ohio St.2d 141
    ,
    
    228 N.E.2d 631
     (1967), and State ex rel. Pietrangelo v. Avon Lake, 
    149 Ohio St.3d 273
    ,
    
    2016-Ohio-5725
    , 
    74 N.E.2d 419
    . Pointing out different dates in mid-July on two government
    records does not establish by clear and convincing evidence that there are additional records.
    {¶ 9}     Accordingly, the court finds that this public records mandamus action is moot
    because the records have been produced.         The court denies the application for a writ of
    mandamus. Each side to bear its costs. The court rules that there is no just reason for delay
    pursuant to Civ.R. 54(B). This court directs the clerk of courts to serve all parties notice of this
    judgment and its date of entry upon the journal as required by Civ.R. 58(B).
    {¶ 10}    Writ denied.
    _________________________________
    EILEEN T. GALLAGHER, PRESIDING JUDGE
    EILEEN A. GALLAGHER, J., and
    RAYMOND C. HEADEN, J., CONCUR
    

Document Info

Docket Number: 107585

Citation Numbers: 2019 Ohio 1889

Judges: Gallagher

Filed Date: 5/10/2019

Precedential Status: Precedential

Modified Date: 5/16/2019