[Cite as State ex rel. Quolke v. Strongsville City School Dist. Bd. of Edn., 2013-Ohio-4481.]


                  Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                                JOURNAL ENTRY AND OPINION
                                         No. 99733



                              STATE OF OHIO, EX REL.
                                 DAVID QUOLKE

                                                                       RELATOR

                                                       vs.

STRONGSVILLE CITY SCHOOL DISTRICT BOARD OF
            EDUCATION, ET AL.
                                                                       RESPONDENTS




                                           JUDGMENT:
                                          WRIT GRANTED


                                             Writ of Mandamus
                                             Order No. 468670
                                             Motion No. 464050

        RELEASE DATE: October 7, 2013
ATTORNEYS FOR RELATOR

Susannah Muskovitz
William E. Froehlich
Muskovitz & Lemmerbrock, L.L.C.
The BF Keith Building
1621 Euclid Avenue, Suite 1750
Cleveland, OH 44115


ATTORNEYS FOR RESPONDENTS

Christian M. Williams
Jacqueline T. Walsh
Pepple & Waggoner, Ltd.
Crown Centre Building
5005 Rockside Road, Suite 260
Cleveland, OH 44131


Also listed:

For Ohio School Boards Association

Mark Landes
Mark H. Troutman
Andrew N. Yosowitz
Isaac, Wiles, Burkholder & Teetor, L.L.C.
2 Miranova Place
Suite 700
Columbus, OH 43215
SEAN C. GALLAGHER, J.:

       {¶1} On April 3, 2013, the relator, David Quolke, commenced this public records

mandamus action against the respondents, the Strongsville City School District Board of

Education (“the Board”); John Krupinski, the superintendent of the Strongsville City

School District; David Frazee, the president of the Strongsville Board of Education; and

Deborah Herrmann, the treasurer of the Strongsville City Schools.      Quolke commenced

this mandamus action during a teacher strike in Strongsville, which lasted from early

March 2013 to late April 2013.    He sought the names of the replacement teachers, those

teachers’ home addresses, their personal telephone numbers, their employee identification

numbers, and all payroll information for Strongsville’s teachers.

       {¶2} On April 4, 2013, the respondents provided Quolke with all of the payroll

records, but did not provide the names of the replacement teachers, the addresses, phone

numbers, or employee identification numbers.          The respondents maintained that the

replacement teachers’ constitutional rights to privacy and personal safety are state or

federal laws prohibiting the release of such information pursuant to R.C. 149.43(A)(1)(v).

 The respondents substantiated this position with evidence of threats and violent acts

against the replacement teachers during the strike.     Quolke subsequently filed a second

amended complaint in which he limited his request to the names of the replacement

teachers.
       {¶3} After the submission of evidence and briefs, this court on August 21, 2013,

granted the writ of mandamus and ordered the release of the replacement teachers’ names.

 This court reasoned that the respondents did not establish that the threats and violent acts

continued after the strike. Thus, the respondents did not sustain their burden to prove

that the records fell squarely within an exemption, and the records should be released.

The court also ruled that Quolke had not fulfilled the requisites for statutory damages.

The court further ordered briefing on the issue of attorney fees.

       {¶4} Quolke submitted his brief with a supporting affidavit and a “time sheet” of

his attorney, Susannah Muskovitz, on September 4, 2013. The respondents filed their

brief in opposition on September 18, 2013. Quolke seeks a total of $10,098.75 in

attorney fees as follows: two hours billed at $165.00 an hour for the services of Susannah

Muskovitz, a principal with the law firm of Muskovitz & Lemmerbrock, L.L.C., and 72

hours billed at $135.00 an hour for the services of William E. Froehlich, an associate with

the firm.   Initially, this court rules that these rates are reasonable. State ex rel. Mun.

Constr. Equip. Operators’ Labor Council v. Cleveland, 8th Dist. Cuyahoga No. 94226,

2010-Ohio-2108.

       {¶5} Both sides agree that R.C. 149.43(C)(2)(b) controls: “If the court renders a

judgment that orders the public office or the person responsible for the public record to

comply with division (B) of this section, the court may award reasonable attorney’s fees

subject to reduction * * *.”     The statute clarifies that an award of attorney fees is

remedial and not punitive in nature. Thus, the court has discretion to award attorney
fees, but the discretion is to be exercised within certain limitations. First, the requester

must have substantially succeeded in the public records mandamus action.         State ex rel.

Citizens for Open, Responsive & Accountable Govt. v. Register, 116 Ohio St.3d 88,

2007-Ohio-5542, 876 N.E.2d 913.      Attorney fees are available only to the extent that the

relator actually paid or is obligated to pay an attorney to win the public records action.

In-house counsel or pro se representation precludes an award.          State ex rel. Hous.

Advocates, Inc. v. Cleveland, 8th Dist. Cuyahoga No. 96243, 2012-Ohio-1187, ¶ 6. An

award of attorney fees is dependent upon showing the release of the records is more for

the public benefit than for the requester’s benefit.           State ex rel. Dawson v.

Bloom-Carroll Local School Dist., 131 Ohio St.3d 10, 2011-Ohio-6009, 959 N.E.2d 524,

¶ 34; and State ex rel. Petranek v. Cleveland, 8th Dist. Cuyahoga No. 98026,

2012-Ohio-2396.     The court may reduce the amount of attorney fees pursuant to R.C.

149.43(C)(2)(c) if the custodian, based on the ordinary application of statutory and case

law, would reasonably believe that the withholding of the records did not constitute a

failure to comply with the statute and that the custodian’s actions would serve the public

policy that underlies the authority permitting the withholding of the records.     The court

may also reduce the award to the extent that the time expended did not advance the public

records case or was extraneous.   Mun. Constr. Equip. Operators.

       {¶6} The respondents’ first argument is that Quolke is not entitled to attorney fees

because he is not obligated to pay for them; he has not presented any evidence that he is
personally responsible for the fees.   The respondents continue that because Quolke is the

president of the Cleveland Teachers Union, that union is really responsible for the bill.

       {¶7} However, Muskovitz’s affidavit contradicts this argument.         In paragraph 6

she states: “My hourly rate for legal services for David Quolke is $165.”        Paragraph 8

states: “Mr. Froehlich’s hourly rate for legal services for David Quolke is $135.”

Finally, in paragraph 9, Muskovitz swears that the following time sheet “lists fees

charged to Mr. Quolke” and “[t]o date, our office billed Relator Quolke for 74.00 hours

of work for a total bill of $10,098.75.”       Moreover, respondents’ reliance on Hous.

Advocates; State ex rel. O’Shea & Assoc. Co. L.P.A. v. Cuyahoga Metro. Hous. Auth.,

131 Ohio St.3d 149, 2012-Ohio-115, 962 N.E.2d 297; State ex rel. Beacon Journal

Publishing Co. v. Akron, 104 Ohio St.3d 399, 2004-Ohio-6557, 819 N.E.2d 1087; and

State ex rel. Besser v. Ohio State Univ., 87 Ohio St.3d 535, 721 N.E.2d 1044 (2000), is

misplaced.   Those cases stand for the principle that attorney fees are not available when

the relator is representing himself pro se, including in-house counsel.       In the present

case, Quolke’s lawyers are not in-house counsel; they represent more than just the

Cleveland Teachers Union. (Respondents’ exhibit N.)

       {¶8} Quolke proffers that the release of the replacement teachers’ names would

allow the public to determine how qualified these individuals were to be teachers.       The

court rules that this states a sufficient public benefit to support an award of attorney fees.

This is the type of record that is necessary to have open to the public to allow the public

to evaluate its government.     The General Assembly enacted R.C. 149.43, including
provisions for attorney fees, to ensure that these records are available.   This benefit also

transcends the proffer of ensuring that the government complies with the public records

law that necessarily comes with any public record request.          Thus, the respondents’

reliance on Petranek, 8th Dist. Cuyahoga No. 98026, 2012-Ohio-2396, is misplaced.

        {¶9} Next, the respondents ask this court in its discretion to disallow attorney fees

because their position to withhold the replacement teachers’ names was reasonable and

promoted various public policies, including physically protecting their employees and

ensuring the continued operation of the schools. Whatever the merits of this argument

during the strike may have been, the rationale lost its persuasiveness after the strike.

The benefit of allowing the public to determine the qualifications of the replacement

teachers outweighs the near non-existent risk to the replacement teachers after the strike.

        {¶10} Finally, the respondents seek to reduce the amount of the award because

some of the time spent did not advance the public records case or was extraneous to the

case.    In reviewing the time sheet, the court concludes that some reductions are

appropriate.    First, the court disallows one hour of time from the amount billed on

March 28, 2013, for review of newspaper articles about a similar mandamus action and

communications with Quolke about those articles. The court disallows one hour of time

from the amount billed on April 3, 2013, relating to media inquiries about the mandamus

action. The court also disallows 0.75 hours from the time spent on July 12, 2013, and

July 24, 2013, relating to news articles.   These services are extraneous to the mandamus

action, and the respondents should not have to pay for them.
       {¶11} The court also disallows all of the time spent from April 8, 2013, through

April 15, 2013, a total of 13 hours. This time was spent on preparing the first amended

complaint and the application for an alternative writ.    Because Quolke abandoned the

claims in the first amended complaint, except the names of the replacement teachers, this

court concludes that it would not be appropriate for the respondents to pay for these

hours. Additionally, the court denied the alternative writ. Because Quolke did not

prevail on these points, the respondents should not have to pay for them. Nor is it clear

how time conferring with a Strongsville teacher necessarily advanced the case.         The

court further notes that this time was incurred while the strike was still on-going. The

rest of the time, including 2.5 hours for a motion for summary judgment, was necessary

and appropriate in pursuing a successful public records mandamus action.

       {¶12} The disallowed 15.75 hours were billed at the rate of $135.00 per hour for a

total of $2,126.25.    Subtracting $2,126.25 from $10,098.75 leaves a difference of

$7,972.50.

       {¶13} In conclusion, the court issues the writ of mandamus to compel the release

of the names of the replacement teachers.       The court denies the application for an

alternative writ as moot.   The court denies the application for statutory damages and

awards $7,972.50 in attorney fees. Respondents to pay costs. The court directs the

clerk of court to serve all parties with notice of this judgment and its date of entry upon

the journal as required by Civ.R. 58(B).

       {¶14} Writ granted. Final.
SEAN C. GALLAGHER, JUDGE

MARY J. BOYLE, P.J., and
TIM McCORMACK, J., CONCUR.
