State ex rel. Ames v. Portage Cty. Bd. of Commrs. (Slip Opinion) , 2021 Ohio 2374 ( 2021 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Ames v. Portage Cty. Bd. of Commrs., Slip Opinion No. 2021-Ohio-2374.]
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SLIP OPINION NO. 2021-OHIO-2374THE STATE EX REL. AMES, APPELLANT, v. PORTAGE COUNTY BOARD OF
COMMISSIONERS ET AL., APPELLEES.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Ames v. Portage Cty. Bd. of Commrs., Slip
Opinion No. 2021-Ohio-2374.]
Mandamus—Public Records Act—Open Meetings Act—Solid-waste-management
district (“SWMD”) is a valid entity created under R.C. 343.01 and 3734.52
with the county board of commissioners serving as its board of directors—
Board may conduct separate meetings for SWMD business and non-SWMD
county business—Official action of the SWMD board must be taken in a
public meeting, and full and accurate minutes of the meetings must be
maintained—Board’s failure to inform the public of the resolutions being
voted on at an SWMD public meeting as part of a consent agenda raises the
question whether the use of a consent agenda in this manner constructively
closes the public meeting—Judgment affirmed in part and reversed in part
and cause remanded.
SUPREME COURT OF OHIO
(No. 2020-1120—Submitted March 30, 2021—Decided July 14, 2021.)
APPEAL from the Court of Appeals for Portage County, No. 2019-P-0125, 2020-
Ohio-4359.
__________________
Per Curiam.
{¶ 1} Appellant, Brian M. Ames, appeals the Eleventh District Court of
Appeals’ entry of summary judgment in favor of appellees, Portage County Board
of Commissioners (“the board”), Portage County Solid Waste Management District
Board of Commissioners (“SWMD”), and Portage County Court of Common Pleas.
The gravamen of Ames’s claim is that the board violated the Open Meetings Act
(R.C. 121.22) and the Public Records Act (R.C. 149.43) by failing to conduct
SWMD business in public meetings and by failing to prepare, maintain, and
produce accurate minutes of SWMD business. We affirm in part, reverse in part,
and remand for further proceedings as to the board and the SWMD.
I. Background
A. Creation of the SWMD
{¶ 2} R.C. 3734.52 requires a board of county commissioners to (1)
“establish and maintain a solid waste management district under Chapter 343. of
the Revised Code” or (2) participate in establishing and maintaining a joint solid-
waste-management district with one or more other county boards of
commissioners. The board opted for the former, establishing the SWMD by
resolution on December 20, 1988. Under R.C. 3734.52(A), the board serves as the
SWMD’s board of directors. See Danis Clarkco Landfill Co. v. Clark Cty. Solid
Waste Mgt. Dist., 73 Ohio St.3d 590, 596, 653 N.E.2d 646 (1995).
B. The September 2019 Meetings
{¶ 3} The board generally begins a regularly scheduled public meeting at
9:00 a.m., recites the Pledge of Allegiance, and immediately recesses to a public
meeting of the SWMD. When the SWMD meeting is adjourned, the board
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January Term, 2021
immediately reconvenes its public meeting regarding official county business. This
entire process is open to the public. The board’s clerk keeps separate minutes for
the board’s meeting on county business and the SWMD meeting.
{¶ 4} In 2019, the board adopted a consent-agenda procedure. The
procedure allows for the approval of “routine items like the approval of minutes,
approval of bills/ACH payments as presented by the County Auditor, approval of
Then and Now Certifications as presented by the County Auditor,[1] as well as other
items as listed on the consent agenda rules.” A “yes” vote on the consent agenda
is a “yes” vote on each of the items included on the consent agenda.
{¶ 5} On September 17, 2019, the board began its regular meeting at 9:00
a.m. and recessed at 9:01 a.m. to begin the SWMD meeting. At the SWMD
meeting, the board adopted a consent agenda containing an approval of minutes
from the previous meeting and three resolutions. There was no regular-agenda
business at the meeting. The SWMD meeting was adjourned less than a minute
after it began, after which the board resumed its regular meeting on county business.
{¶ 6} The September 26, 2019 meetings were conducted similarly. The
board recessed its meeting at 9:00 a.m. and immediately convened an SWMD
meeting. At the SWMD meeting, the board adopted a consent agenda containing
an approval of minutes from the September 17 meeting and three resolutions. The
board then concluded the SWMD regular agenda, adjourned the meeting at 9:02
a.m., and immediately resumed its meeting regarding county business.
{¶ 7} On December 26, 2019, Ames submitted a public-records request for
“the meeting minutes of September 17 and 26, 2019 for the Portage County Board
of Commissioners and the Portage County Solid Waste Management District Board
1. Under R.C. 5705.41(D)(1), a political subdivision may authorize payment of money due under a
contract if it receives a certificate of the fiscal officer stating that a sufficient sum had been
appropriated for that purpose, both at the time of the making of the contract and at the time of the
fiscal officer’s execution of the certificate. The “then and now certificate” of the Portage County
Auditor constitutes the certificate required under R.C. 5705.41(D)(1).
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SUPREME COURT OF OHIO
of Commissioners.” The following day, the board’s clerk e-mailed the minutes of
the September 17 and September 26 meetings to Ames. The minutes of the SWMD
meetings contain the full text of the resolutions approved by consent agenda. For
one of the resolutions passed at the September 17 SWMD meeting, the minutes
purport to include a “Then and Now Certificate” from the county auditor designated
“Exhibit A” to Resolution No. 19-137. But the exhibit was not attached to the
minutes approved by the board or produced in response to Ames’s public-records
request.
C. Ames Seeks a Writ of Mandamus
{¶ 8} On December 27, 2019, the same day he received the response to his
public-records request, Ames filed a petition for a writ of mandamus against the
board, the SWMD, and the court of common pleas. Ames alleged that the SWMD
is a “fictitious body” that “has no basis in law” and that the board violated the Open
Meetings Act by conducting SWMD business during recesses of the September
2019 board meetings. Ames further alleged that the board’s use of a consent agenda
at the SWMD meetings violated the Open Meetings Act. Ames sought a writ of
mandamus compelling the board to prepare, file, and maintain accurate minutes for
the September 2019 SWMD meetings and all future meetings and ordering all
SWMD business to be conducted in open meetings, except for properly called
executive sessions. Ames also sought a writ of mandamus compelling the court of
common pleas to grant the relief set forth in R.C. 121.22(I) for proven violations of
the Open Meetings Act.
{¶ 9} The court of appeals granted an alternative writ, and the parties filed
cross-motions for summary judgment. On September 8, 2020, the court of appeals
granted appellees’ motion, denied Ames’s motion, and denied the writs. The court
noted that “the SWMD is a valid public body authorized to conduct business with
regard to implementing a solid waste management plan that complies with R.C.
3734.55,” 2020-Ohio-4359, ¶ 11, and held that the board’s SWMD meeting
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January Term, 2021
minutes satisfy the requirements of R.C. 121.22(C). The court further found that
the use of consent agendas at the September 2019 meetings did not violate the Open
Meetings Act. Finally, the court found nothing actionable in the omission of
Exhibit A to the minutes of the September 17 SWMD meeting. The court did not
expressly address Ames’s claim for relief under the Public Records Act or his claim
against the court of common pleas.
{¶ 10} Ames appealed to this court as of right.
II. Analysis
{¶ 11} This court reviews de novo a court of appeals’ grant of summary
judgment in a mandamus action. State ex rel. Manley v. Walsh, 142 Ohio St.3d
384, 2014-Ohio-4563, 31 N.E.3d 608, ¶ 17. Summary judgment is proper when an
examination of all relevant materials filed in the action reveals that there is no
genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law. Civ.R. 56(C).
{¶ 12} To prevail in his claim for mandamus relief under the Open Meetings
Act, Ames must establish, by clear and convincing evidence, (1) a clear legal right
to the requested relief, (2) a clear legal duty on the part of appellees to provide it,
and (3) the lack of an adequate remedy in the ordinary course of the law. State ex
rel. Am. Civ. Liberties Union of Ohio, Inc. v. Cuyahoga Cty. Bd. of Commrs., 128
Ohio St.3d 256, 2011-Ohio-625, 943 N.E.2d 553, ¶ 22. For Ames’s request for
relief under the Public Records Act, the first two elements are the same, but he need
not establish the lack of an adequate remedy in the ordinary course of the law. Id.
at ¶ 24.
A. Validity of the SWMD
{¶ 13} In his first proposition of law, Ames argues that the SWMD is not a
valid entity. Therefore, he contends, the board violated the Open Meetings Act by
separately conducting SWMD business during recesses of the board’s regular
meetings. And since the business of the SWMD is not contained in the minutes of
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SUPREME COURT OF OHIO
the board’s meetings related to county business, Ames argues, the board has
violated R.C. 121.22(C), 305.10, and 149.43(B) by failing to keep full and accurate
minutes of the September 2019 meetings.
{¶ 14} Ames’s contention that the SWMD is a fictitious entity is not
supported by R.C. 3734.52 and 343.01, which expressly authorize a board of county
commissioners to create a solid-waste-management district. When a board of
county commissioners establishes a solid-waste-management district under R.C.
3734.52 and 343.01, it also serves as the district’s board of directors. Danis
Clarkco Landfill Co., 73 Ohio St.3d at 596, 653 N.E.2d 646. Moreover, the General
Assembly has defined a solid-waste-management district created under R.C. 343.01
as a political subdivision unto itself, separate from a county, see R.C. 2744.01(F),
though governed by the board of county commissioners that created it.
{¶ 15} Here, the board created the SWMD by resolution in 1988, as
authorized by R.C. 343.01(A)(1), and Ames does not attack the validity of that
resolution. Furthermore, Ames cannot establish that the board’s procedure of
convening separate meetings for SWMD business and non-SWMD county business
violates the Open Meetings Act. As to the meetings at issue in this case, the
evidence shows that the board convened four meetings on September 17 and
September 26, 2019—two related to county business and two related to SWMD
business—and prepared minutes of all four meetings. There is nothing in the Open
Meetings Act or in R.C. 343.01 that prohibits the board from holding a public
meeting of the SWMD separate from the county board meeting. Ames’s first
proposition of law is without merit.
B. The Board’s Use of a Consent Agenda
{¶ 16} In his second proposition of law, Ames argues that the use of a
consent agenda during the September 2019 SWMD meetings violated the Open
Meetings Act. Ames argues that the use of a consent agenda effectively closed the
SWMD meetings because it prevented members of the public in attendance at the
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January Term, 2021
meetings from knowing which resolutions were being approved and hearing any
deliberations on those resolutions.
{¶ 17} The Open Meetings Act “shall be liberally construed to require
public officials to take official action and to conduct all deliberations upon official
business only in open meetings unless the subject matter is specifically excepted by
law.” R.C. 121.22(A). Thus, a majority of members of a public body cannot
discuss public business in private, prearranged discussions that are later ratified at
a public meeting. See White v. King, 147 Ohio St.3d 74, 2016-Ohio-2770, 60
N.E.3d 1234, ¶ 15, 24-25 (discussions conducted by e-mail between a majority of
board members and action taken based on those discussions and later ratified at a
public meeting may violate the Open Meetings Act); State ex rel. Cincinnati Post
v. Cincinnati, 76 Ohio St.3d 540, 668 N.E.2d 903 (1996) (a public body may not
circumvent the Open Meetings Act by conducting back-to-back, in-person
gatherings with less than a majority of its members in attendance at each gathering
and discussing the same topics of public business each time). Nor can a public
body take an official action by secret ballot of its members, even if the balloting is
done at an open meeting and the ballot slips are maintained as public records. State
ex rel. MORE Bratenahl v. Bratenahl, 157 Ohio St.3d 309, 2019-Ohio-3233, 136
N.E.3d 447, ¶ 20-21. A public body also violates the Open Meetings Act when its
members conceal their deliberations by whispering among themselves or secretly
passing notes between one another during a public meeting. See Manogg v. Stickle,
5th Dist. Licking No. 97 CA 104, 1998 Ohio App. LEXIS 1961, *6-7 (Apr. 8,
1998), cited with approval in MORE Bratenahl at ¶ 16.
{¶ 18} We have granted writs of mandamus directing a public body to
“prepare, file, and maintain full and accurate minutes and to conduct all meetings
in public, except for properly called executive sessions.” State ex rel. Long v.
Council of Cardington, 92 Ohio St.3d 54, 61, 748 N.E.2d 58 (2001); see also State
ex rel. Inskeep v. Staten, 74 Ohio St.3d 676, 678, 660 N.E.2d 1207 (1996) (granting
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SUPREME COURT OF OHIO
writ of mandamus to compel a city council “to open all council meetings to the
public”).
{¶ 19} In this case, the board approved multiple consent agenda items in a
single vote. Although the vote itself was conducted in an open meeting, Ames
contends that the board did not state or otherwise make public at the time of the
meeting the specific resolutions being voted on as part of the consent agenda. He
asserts that by failing to inform the public which resolutions were being voted on,
this process effectively resulted in the board voting on the individual resolutions in
secret. See MORE Bratenahl at ¶ 14 (holding that the Open Meetings Act requires
that any official action take place in an open meeting). While the Open Meetings
Act does not appear to prevent the board from using consent agendas as a general
matter, Ames has raised a plausible theory—sufficient to survive a motion for
summary judgment—that the board’s use of a consent agenda in this manner
constructively closes its public meetings and is an impermissible end run around
the Open Meetings Act. We therefore conclude that the court of appeals erred in
finding, as a matter of law, that the use of a consent agenda in the manner described
did not violate the Open Meetings Act.
C. Full and Accurate Minutes of the SWMD Meetings
{¶ 20} For ease of discussion, we next address Ames’s fourth proposition
of law. Ames contends that the minutes of the September 2019 SWMD meetings
were not prepared and maintained as required by law and that full and accurate
copies of those minutes were not provided in response to his public-records request.
{¶ 21} R.C. 121.22(C) requires a public body to prepare, file, and maintain
minutes of its meetings. Long, 92 Ohio St.3d at 56, 748 N.E.2d 58. Once prepared,
R.C. 149.43(B) requires that the public body provide public access to the minutes
upon request. Id. In addition, R.C. 305.10 requires that the clerk of a county board
of commissioners keep a full record of the board’s proceedings. State ex rel. White
v. Clinton Cty. Bd. of Commrs., 76 Ohio St.3d 416, 422, 667 N.E.2d 1223 (1996).
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January Term, 2021
Mandamus is a proper remedy to compel compliance with a public office’s duty to
prepare, file, and maintain full and accurate meeting minutes. See Long at 60-61.
{¶ 22} In large part, the minutes for the two SWMD meetings at issue here
satisfied R.C. 121.22(C). Ames is correct, however, that the approved minutes of
the September 17, 2019 meeting are inaccurate in one respect. The minutes state
that a list of expenditures totaling $1,794.42, related to Resolution No. 19-137 on
the consent agenda, is “attached hereto as Exhibit ‘A’ and incorporated herein by
reference.” It is undisputed that Exhibit A was not attached to the official minutes
prepared by the board’s clerk or included with the documents produced to Ames in
response to his public-records request.
{¶ 23} The court of appeals held that the omission of Exhibit A from the
minutes of the September 17 meeting did not warrant relief in mandamus, because
“Ames makes no accusation that the Board intentionally withheld the document”
and uncontroverted affidavit testimony on behalf of the board establishes that the
document is available in the county auditor’s office, upon request, to any member
of the public. 2020-Ohio-4359 at ¶ 15. The court of appeals erred in its reasoning.
The board is required to keep full and accurate minutes of its meetings under the
Open Meetings Act and to permit public access to those minutes under the Public
Records Act. See Long at 56. In this case, the minutes of the September 17 meeting
expressly incorporate an “Exhibit A” that the board has admitted is not included in
the approved minutes and was not produced to Ames in response to his public-
records request. The fact that Exhibit A is available from another source is
immaterial. The board has a duty to maintain a full and accurate record of its
proceedings. See White at paragraph one of the syllabus.
{¶ 24} Mandamus is an appropriate remedy to compel a public body to
prepare and produce full and accurate meeting minutes under R.C. 121.22 and
149.43. See Long, 92 Ohio St.3d at 61, 748 N.E.2d 58; Am. Civ. Liberties Union
of Ohio, Inc., 128 Ohio St.3d 256, 2011-Ohio-625, 943 N.E.2d 553, at ¶ 24.
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SUPREME COURT OF OHIO
Because the uncontroverted evidence shows that the board did not produce full and
accurate minutes of the September 17 SWMD meeting in response to Ames’s
public-records request, the court of appeals erred in granting summary judgment on
Ames’s mandamus claim as it relates to the minutes of that meeting.
D. Mandamus Claim Against the Court of Common Pleas
{¶ 25} In his third proposition of law, Ames contends that a writ of
mandamus should issue directing the court of common pleas to grant relief under
R.C. 121.22(I) for a proven violation of the Open Meetings Act. R.C. 121.22(I)
requires the court of common pleas to issue an injunction and award court costs and
attorney fees upon proof of a violation or threatened violation of the Open Meetings
Act. This proposition of law is without merit.
{¶ 26} As a fundamental matter, a court of common pleas is not a proper
respondent in a mandamus action. A court is not sui juris and, absent express
statutory authority, can neither sue nor be sued in its own right. State ex rel.
Cleveland Mun. Court v. Cleveland City Council, 34 Ohio St.2d 120, 121, 296
N.E.2d 544 (1973). For this reason alone, Ames is not entitled to the mandamus
relief he seeks against the court of common pleas. See State ex rel. Armatas v. Fifth
Dist. Court of Appeals, 158 Ohio St.3d 1516, 2020-Ohio-2976, 145 N.E.3d 305.
{¶ 27} In any event, Ames’s argument is flawed on the merits. He seeks a
writ of mandamus ordering the court of common pleas to grant the relief provided
in R.C. 121.22(I) on the ground he has proven a violation of the Open Meetings
Act in this case. But R.C. 121.22(I) provides for issuance of an injunction and the
award of costs and attorney fees only for a violation or threatened violation of the
Open Meetings Act proven in the court of common pleas. Ames cannot use
mandamus as a way to bypass the statute’s requirement that a violation be proven
in an R.C. 121.22(I) proceeding in the common pleas court.
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January Term, 2021
III. Conclusion
{¶ 28} For the foregoing reasons, we affirm the court of appeals’ summary
judgment and denial of mandamus relief as to the court of common pleas but
reverse it as to the board and the SWMD. We order that the board produce Exhibit
A to the minutes of the September 17 SWMD meeting to Ames in response to his
public-records request. We remand this cause to the court of appeals to consider
(1) whether the SWMD’s alleged violation of the Open Meetings Act entitles Ames
to further relief and (2) whether Ames should be awarded statutory damages under
the Public Records Act.
Judgment affirmed in part
and reversed in part,
and cause remanded.
O’CONNOR, C.J., and KENNEDY, FISCHER, DEWINE, DONNELLY, STEWART,
and BRUNNER, JJ., concur.
_________________
Brian M. Ames, pro se.
Victor V. Vigluicci, Portage County Prosecuting Attorney, and Christopher
J. Meduri, Assistant Prosecuting Attorney, for appellees.
_________________
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