[Cite as Esrati v. Dayton City Comm., 2019-Ohio-1021.]




                            IN THE COURT OF APPEALS OF OHIO
                               SECOND APPELLATE DISTRICT
                                   MONTGOMERY COUNTY

 DAVID ESRATI                                            :
                                                         :
         Plaintiff-Appellant                             :   Appellate Case No. 28062
                                                         :
 v.                                                      :   Trial Court Case No. 2018-CV-593
                                                         :
 DAYTON CITY COMMISSION, et al.                          :   (Civil Appeal from
                                                         :   Common Pleas Court)
         Defendants-Appellees                            :
                                                         :

                                              ...........

                                              OPINION

                           Rendered on the 22nd day of March, 2019.

                                              ...........

DAVID ESRATI, 113 Bonner Street, Dayton, Ohio 45410
     Plaintiff-Appellant, Pro Se

JOHN C. MUSTO, Atty. Reg. No. 0071512, 101 West Third Street, Dayton, Ohio 45402
     Attorney for Defendants-Appellees, Dayton City Commission and Jeffrey Mims, Jr.

BRIAN L. WILDERMUTH, Atty. Reg. No. 0066303 and ZACHARY J. CLOUTIER, Atty.
Reg. No. 0097160, 50 Chestnut Street, Suite 230, Dayton, Ohio 45440
      Attorneys for Defendants-Appellees, Dayton Board of Education and Mohamed Al
      Hamdani

                                            .............
                                                                                          -2-


WELBAUM, P.J.



       {¶ 1} Plaintiff-Appellant, David Esrati, appeals pro se from a trial court judgment

dismissing his action against Defendants-Appellees, Dayton City Commission (“DCC”),

Jeffrey Mims, Jr., Dayton Board of Education (“Board”), and Mohamed Al Hamdani

(collectively, “Appellees”). In a single assignment of error, Esrati contends that the trial

court erred in granting summary judgment in Appellees’ favor and in dismissing his action.

       {¶ 2} We conclude that the trial court did not err in rendering summary judgment

in favor of Appellees. Esrati failed to provide evidence that a school facilities task force,

which was formed to gather financial information and assist the Board in making financial

decisions, engaged in deliberations as opposed to information gathering when it

participated in a private tour of a school. As a result, the alleged lack of an open meeting

did not invalidate a resolution, rule, or formal action of the Board under R.C. 121.22(H).

Accordingly, the judgment of the trial court will be affirmed.



                              I. Facts and Course of Proceedings

       {¶ 3} In November 2016, the Board ordered a reduction in staff members due to

declining enrollment in the Dayton Public Schools (“DPS”).           Over a year later, in

December 2017, the Board directed Dr. Elizabeth Lolli to study school facilities and

provide a recommendation. At the time, DPS owned 24 vacant properties and four

vacant buildings. DPS also had nine buildings that were below 50 percent capacity.

Lolli had been appointed acting DPS superintendent in late November 2017.

       {¶ 4} Lolli initially planned to meet with parents in each quadrant of the city and
                                                                                         -3-


discuss the issues. However, shortly after being appointed, Lolli became aware of a

fractured relationship between DPS leaders and Dayton city officials (the mayor and city

commissioners).    As a result, Lolli met with Dayton Mayor Nan Whaley.          After that

meeting, Lolli met with Whaley, Shelley Dickstein (Dayton City Manager), Jeffrey Mims,

(Dayton City Commissioner), and Mohamed Al-Hamdani, who had been elected to the

Board, but had not yet taken office. At the meeting, they discussed forming a task force

of business owners. This would let them gather information to help the Board and DPS

make financial decisions. DPS wanted to obtain the viewpoint of persons who had a

vested interest in DPS but were not directly connected to the school system. The mayor

helped select the majority of task force members, with help from commissioners and

Board members. As ultimately formed, the task force included three of the seven Board

members (Dr. William Harris, Jr., Dr. Robert Walker, and Al-Hamdani).

       {¶ 5} After assuring the Board agreed with the plan, the City of Dayton and DPS

held a joint press conference and set several meeting dates. The initial meeting of the

School Facilities Task Force (“Task Force”) was scheduled for January 9, 2018. Members

of the media, as well as Esrati, who had appeared for the meeting, were told that it would

be held in private. According to Lolli, the intention in holding private meetings was to let

the business people be honest and open. Lolli stated that they “also decided that it likely

would be, if the press was there, some comment could be taken out of context and

potentially be used in a manner that would not benefit those businesses that were

represented or the people, the groups, that were represented.” Transcript of March 15,

2018 Preliminary Injunction Hearing (“Tr.”), p. 85.

       {¶ 6} After Esrati objected to the lack of public access, the January 9, 2018
                                                                                        -4-


meeting did not go forward. The next meeting was scheduled for January 24, 2018, and

was open to the public. Esrati and others attended this public meeting. A private bus

tour of three schools, including Valerie Elementary School, was then set for February 6,

2018. On February 5, 2018, Esrati filed a motion for an injunction, alleging that the

Appellees had violated R.C. 121.22, which generally requires that public officials conduct

deliberations on official business in open meetings. Esrati asked the court to order

various relief, including that the Task Force be ordered to hold its meetings and the bus

tour in public.

       {¶ 7} The following morning, Esrati filed a motion for a temporary restraining order

(“TRO”), asking the court to prevent the Task Force from touring school buildings in

private. However, the motion was not scheduled to be heard until February 7, 2018. In

the meantime, the Task Force began its tour on the morning of February 6, 2018, with the

intention of visiting three schools. About 20 Task Force members were on the bus, as

well as a few school employees and three or four members of the media who were not

allowed to record the proceedings. While the bus had room for more people, Esrati was

not allowed to come, nor was he allowed to tour the first school (Valerie Elementary),

where the tour began. There was also no process by which members of the public could

ask to attend the school tour.

       {¶ 8} Al-Hamdani boarded the bus to go on the bus tour, but asked to exit before

the bus arrived at Valerie Elementary. Al-Hamdani had learned that Esrati had just filed

for an injunction, and he wanted to confer with attorneys. Esrati followed the bus, and

when it arrived at Valerie Elementary, Esrati filmed the Task Force members, including

Lolli, entering the building. Esrati protested, claiming several times that this was an
                                                                                        -5-


“illegal secret meeting.” At the end of the Valerie Elementary tour, Lolli learned that the

trial judge had asked for the bus tour to be stopped. As a result, the rest of the stops

were cancelled.

       {¶ 9} On February 9, 2018, the trial court concluded that the motion for a TRO was

moot because the Defendants-Appellees had said they were no longer going to tour

Dayton schools. After the parties filed memoranda concerning the interplay between

Civ.R. 65 and R.C. 121.22, the court scheduled an evidentiary hearing for March 15,

2018. The court limited the hearing to two issues: “(1) whether the Dayton School

Facilities Task Force was a public body as set forth in R.C. 121.22(B)(1)(a)(b); and if so,

(2) whether it violated the Open Meetings Act.” Doc. #44, p. 1.

       {¶ 10} At the hearing, the court heard testimony from Esrati and Dr. Lolli, and also

admitted some documents into evidence. A few days later, the court filed a decision

denying the motion for a preliminary injunction. The court agreed with Esrati and found

“as a matter of law that the Task Force consisting of three Board members and others

suggested by the Mayor of Dayton [was] a Committee or Sub-Committee of the decision-

making body, the Board of Education” and met the definition of a “public body” under the

Open Meetings law. Doc. #52, p. 4.

       {¶ 11} However, the court also concluded that Esrati had failed to prove that the

Board violated the Open Meetings law during the bus tour. This conclusion was based

on the fact that Esrati failed to offer any evidence that the Task Force had deliberated or

discussed the closure issues during the bus tour. Id. at p. 5.

       {¶ 12} Subsequently, the court scheduled a trial for August 2018 and also set a

deadline of June 1, 2018, for filing summary judgment motions.            All Defendants-
                                                                                       -6-


Appellees filed motions for summary judgment, but Esrati did not submit any additional

evidence, even though he was given an opportunity to do so. Consequently, the trial

court entered summary judgment in favor of Appellees and dismissed the action. This

appeal followed.



                             II. Was Summary Judgment Proper?

      {¶ 13} Esrati’s single assignment of error states that:

             The Trial Court Erred in Granting Motions for Summary Judgment

      and Dismissing the Plaintiff’s Action.

      {¶ 14} According to Esrati, the trial court erred because it required him to prove

that deliberations occurred during a meeting that was closed to the public.         Esrati

contends that this defies logic because individuals excluded from meetings have no ability

to know what happened, i.e., to know whether discussions or deliberations occurred.

      {¶ 15} Esrati’s action was brought under R.C. 121.22, which provides that “[a]ll

meetings of any public body are declared to be public meetings open to the public at all

times.” R.C. 121.22(C). A party bringing an action for violation of the Open Meetings

Act has the burden to establish the violation. Steingass Mechanical Contracting, Inc. v.

Warrensville Hts. Bd. of Edn., 151 Ohio App.3d 321, 2003-Ohio-28, 784 N.E.2d 118, ¶ 30,

citing R.C. 121.22(I). The burden of proof is by a preponderance of evidence. Id.

      {¶ 16} The issues in the trial court were whether the Task Force was a public body

and, if so, whether the Task Force engaged in deliberations during the bus tour that

invalided any resolution, rule, or formal action that resulted from the deliberations. As

noted, the trial court concluded that the Task Force was a public body, but found a lack
                                                                                        -7-


of evidence that the members of the Task Force had engaged in deliberations during the

bus tour. The court, therefore, granted summary judgment to Appellees.

       {¶ 17} “A trial court may grant a moving party summary judgment pursuant to

Civ.R. 56 if there are no genuine issues of material fact remaining to be litigated, the

moving party is entitled to judgment as a matter of law, and reasonable minds can come

to only one conclusion, and that conclusion is adverse to the nonmoving party, who is

entitled to have the evidence construed most strongly in his favor.” Smith v. Five Rivers

MetroParks, 134 Ohio App.3d 754, 760, 732 N.E.2d 422 (2d Dist.1999), citing Harless v.

Willis Day Warehousing Co., 54 Ohio St.2d 64, 375 N.E.2d 46 (1978). “We review

decisions granting summary judgment de novo, which means that we apply the same

standards as the trial court.” (Citations omitted.) GNFH, Inc. v. W. Am. Ins. Co., 172

Ohio App.3d 127, 2007-Ohio-2722, 873 N.E.2d 345, ¶ 16 (2d Dist.).

       {¶ 18} Before addressing the issue of Esrati’s failure of proof, we note that the

Board has posed an argument about whether the Task Force was a public body.

According to the Board, this is an “additional” reason for affirming the summary judgment

decision, because the trial court was incorrect in finding that the Task Force was a public

body. However, the Board did not file a notice of cross-appeal on this point, as required

by App.R. 3(C)(1), and we should not resolve the issue. See, e.g., Matthews v. Morris

Sons Co., 118 Ohio App.3d 345, 350, 692 N.E.2d 1055 (2d Dist.1997) (“[a] party who

intends to defend a judgment yet asks to change its terms must file a notice of cross-

appeal”). Because we are affirming the trial court’s judgment, and the Board did not file

a notice of cross-appeal seeking to change that judgment, the Board’s argument is not

one we will address. We will assume, for purposes of argument only, that the Task Force
                                                                                       -8-


was a public body.

       {¶ 19} R.C. 121.22(H) provides, in pertinent part, that:

              A resolution, rule, or formal action of any kind is invalid unless

       adopted in an open meeting of the public body. A resolution, rule, or formal

       action adopted in an open meeting that results from deliberations in a

       meeting not open to the public is invalid unless the deliberations were for a

       purpose specifically authorized in division (G) or (J) of this section and

       conducted at an executive session held in compliance with this section.

       {¶ 20} Consequently, the issue is whether the Task Force engaged in deliberations

during the bus tour that would make any rule, resolution, or formal act of the Board

resulting from the bus tour invalid under R.C. 121.22(H). As noted, the trial court denied

the motion for preliminary injunction because Esrati failed to present evidence that

deliberations occurred. The court applied the same reasoning in its summary judgment

decision, noting that Esrati did not present any further evidence in opposing summary

judgment. Doc. # 83, p. 1.

       {¶ 21} Admittedly, Dr. Lolli ultimately presented a proposal to the Board,

recommending that Valerie Elementary be closed, and the Board acted on the

recommendation. However, that does not mean that the Board’s action resulted from

“deliberations” during the tour.

       {¶ 22} The Open Meetings Act does not define “deliberations,” but they “involve

more than information-gathering, investigation, or fact-finding.” Springfield Local School

Dist. Bd. of Edn. v. Ohio Assn. of Pub. School Emp., Local 530, 106 Ohio App.3d 855,

864, 667 N.E.2d 458 (9th Dist.1995), citing Holeski v. Lawrence, 85 Ohio App.3d 824,
                                                                                          -9-


829, 621 N.E.2d 802 (11th Dist.1993). “Deliberations” have been defined as “ ‘the act of

weighing and examining the reasons for and against a choice or measure’ or ‘a discussion

and consideration by a number of persons of the reasons for and against a measure.’ ”

Id., quoting Webster’s Third New International Dictionary 596 (1962).

       {¶ 23} Courts have held that no violation of the Open Meetings Act occurs where

a session is for information-gathering and no deliberations take place.           See, e.g.,

Cincinnati Enquirer v. Cincinnati Bd. of Edn., 192 Ohio App.3d 566, 2011-Ohio-703, 949

N.E.2d 1032, ¶ 15 (1st Dist.); Holeski at 829.

       {¶ 24} No evidence was presented to indicate that the Task Force engaged in

deliberations during the bus tour. Esrati was not present on the bus or on the tour of

Valerie Elementary, and, therefore, had no knowledge of what transpired. The only other

witness at the preliminary injunction hearing was Dr. Lolli, who testified that she could not

address whether Task Force members talked among themselves while on the bus

because she was in the front of the bus and it was very loud. She further said that the

members did not talk among themselves while they were inside the school. Instead, they

were simply given a tour of the facility, during which maintenance problems, including

asbestos, were pointed out. Lolli also said that members asked questions about the

particular maintenance issues, and that she did not recall many questions, as the group

was not in the school very long. This was the extent of the evidence, and there was no

indication that Task Force members did anything other than collect information.

       {¶ 25} Concededly, one would not expect Esrati to testify about meetings to which

he was not admitted. However, that is the function of discovery. Esrati could have

taken depositions of any or all individuals who were present, including media observers.
                                                                                         -10-


The trial court even ordered Defendants-Appellees to answer interrogatories that Esrati

had submitted, although their answers were not due until after the discovery deadline had

passed. See Doc. #73 (Decision Requiring Defendants to Answer or Object to Plaintiff’s

Interrogatories), p. 1.

       {¶ 26} In addition, the trial court made the following comments in the decision

ordering discovery:

              Further, Defendants have filed Motions for Summary Judgment

       about to be ripe for decision, [Plaintiff] having responded and now awaiting

       replies. The Court confirmed on the record that Mr. Esrati’s discovery

       requests are not necessary for his summary judgment response and Mr.

       Esrati acknowledged and agreed that nothing further was necessary to be

       filed in support of his memorandum contra motions for summary judgment.

              Depositions for discovery purposes may be taken upon a showing of

       good cause as to why they were not taken within the discovery deadline set

       by the Court.

Doc. #73 at p.1.

       {¶ 27} Thereafter, Esrati made no attempt to take depositions, nor did he submit

any additional evidence in opposition to the summary judgment motions. The trial court

then rendered summary judgment in favor of the Defendants. In the summary judgment

decision, the court noted that Esrati failed to present any further evidence after the court

denied the request for a preliminary injunction. See Doc. #83 at p. 1.

       {¶ 28} Although Esrati is a pro se litigant, we have long stressed that “pro se

litigants are held to the same standards as other litigants.”      Cox v. Oliver, 2d Dist.
                                                                                        -11-


Montgomery No. 26515, 2015-Ohio-3384, ¶ 20. Consequently, Esrati’s failure to present

evidence cannot be excused by his status as a pro se litigant.

      {¶ 29} Based on the preceding discussion, we agree with the trial court that Esrati

failed to provide evidence that the Task Force conducted anything other than information-

gathering during the private tour, and therefore the Board’s subsequent actions were not

invalidated under R.C. 121.22(H).

      {¶ 30} As a final matter, we note that Ex. 3 includes a discussion between Dr. Lolli

and the DPS Director of Media and Public Relations in which the Media Director stated

that sending information to every task member by phone (“i.e., conference calls”) would

ensure that “there won’t be any public records of that, either.” To the extent this implies

that the Open Meetings Act could be circumvented by this avenue, we note that the

Supreme Court of Ohio made the following comments in White v. King, 147 Ohio St.3d

74, 2016-Ohio-2770, 60 N.E.3d 1234:

             Nothing in the plain language of R.C. 121.22(B)(2) expressly

      mandates that a “meeting” occur face to face. To the contrary, it provides

      that any prearranged discussion can qualify as a meeting. Accordingly,

      R.C. 121.22 prohibits any private prearranged discussion of public business

      by a majority of the members of a public body regardless of whether the

      discussion occurs face to face, telephonically, by video conference, or

      electronically by e-mail, text, tweet, or other form of communication.

      ***

             * * * Allowing public bodies to avoid the requirements of the Open

      Meetings Act by discussing public business via serial electronic
                                                                                        -12-


       communications subverts the purpose of the act.

(Emphasis sic.) Id. at ¶ 15 and 18.

       {¶ 31} Based on the preceding discussion, Esrati's sole assignment of error is

overruled.



                                        III. Conclusion

       {¶ 32} Esrati’s assignment of error having been overruled, the judgment of the trial

court is affirmed.



                                       .............



HALL, J. and TUCKER, J., concur.



Copies sent to:

David Esrati
John C. Musto
Brian L. Wildermuth
Zachary J. Coultier
Hon. Richard Skelton
