[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Bates v. Smith, Slip Opinion No. 2016-Ohio-5449.]




                                           NOTICE
      This slip opinion is subject to formal revision before it is published in an
      advance sheet of the Ohio Official Reports. Readers are requested to
      promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
      South Front Street, Columbus, Ohio 43215, of any typographical or other
      formal errors in the opinion, in order that corrections may be made before
      the opinion is published.




                          SLIP OPINION NO. 2016-OHIO-5449
                          THE STATE EX REL. BATES v. SMITH.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
           may be cited as State ex rel. Bates v. Smith, Slip Opinion No.
                                     2016-Ohio-5449.]
Quo warranto—Declaration of office of township trustee as vacant and
        appointment of respondent to that office violated R.C. 503.241 and Open
        Meetings Act, R.C. 121.22—Writ granted.
     (No. 2016-0134—Submitted May 31, 2016—Decided August 23, 2016.)
                                    IN QUO WARRANTO.
                                 _____________________
        Per Curiam.
        {¶ 1} We issue a peremptory writ of quo warranto to relator, Lucas County
Prosecuting Attorney, Julia R. Bates, removing respondent, D. Hilarion Smith, as
Spencer Township trustee and confirming Shawn Valentine’s right to that office.
Two trustees unlawfully voted to declare the third trustee office vacant, even though
the third trustee was on active military service. The trustees unlawfully appointed
                             SUPREME COURT OF OHIO




Smith to that trustee position in a meeting that violated the Open Meetings Act,
R.C. 121.22.
                                        Facts
       {¶ 2} In November 2013, Shawn Valentine was elected trustee of Spencer
Township in Lucas County, with a term beginning January 1, 2014, and ending
December 31, 2017. Valentine also serves in the Ohio Army National Guard, and
in the spring of 2015, he was notified that he would be deployed for active military
service.
       {¶ 3} In June 2015, Valentine gave verbal notice of his upcoming
deployment to the other township trustees, who at that time were Michael Hood
and Smith. He told the other trustees that he did not intend to resign his position as
trustee, but to maintain it as provided in R.C. 503.241. Valentine also attended a
board meeting in September 3, 2015, four days before his deployment to Fort Bliss,
Texas. During that meeting, Hood acknowledged Valentine’s military deployment
and requested prayers from the township residents for Valentine’s safety.
       {¶ 4} On the roll call for the September 17, 2015 board meeting, Valentine
was listed as “absent.” At the next five board meetings, which occurred on October
1, November 5, November 19, December 16, and December 30, 2015, Valentine
was listed on the roll call as on “military leave.”
       {¶ 5} At the November 2015 election for township trustee, Teresa M.
Bettinger defeated Smith, so his term was scheduled to end December 31, 2015. At
the December 30 meeting of the township trustees, Hood presented a petition from
residents requesting Valentine’s resignation “for lack of performance and lack of
providing information about [his] absence to the [c]ommunity.” Smith read three
resolutions that he said he intended to present to the prosecuting attorney: one
seeking Valentine’s resignation, one seeking the suspension of further per diem
payments to Valentine pending an opinion from the prosecutor on the issue of
“double dipping,” and one seeking official information from the United States




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Armed Forces regarding the length and location of Valentine’s deployment. The
meeting adjourned at 11:15 a.m., without any announcement of either an
emergency or an emergency meeting. Later that day, the board posted a paper
notice on the township-hall door of an “emergency meeting” of the board to be held
on December 31, 2015, at 11:00 a.m.
       {¶ 6} At the December 31 meeting, Smith and Hood voted to declare
Valentine’s office vacant under R.C. 503.241. Because Valentine had never
verified his deployment with documentation, Smith and Hood concluded that
Valentine had been absent from the township for more than the 90 days permitted
by the statute for nonmilitary absences. Hood and Smith then appointed Smith to
take Valentine’s trustee position on January 1, 2016. Smith asked the fiscal officer
to tell Valentine to surrender all township equipment, including keys.
       {¶ 7} Valentine has never renounced his claim to office and has continued
to serve on active duty with the Army. He was, at the time of this complaint in quo
warranto, stationed in Guantanamo Bay, Cuba.
       {¶ 8} Bates filed this complaint on two bases: (1) that Smith’s claim to the
title of Spencer Township trustee violates R.C. 503.241, which prohibits the
involuntary removal of a township trustee for absenteeism while the trustee is in
active military service, and (2) that Smith’s appointment as trustee was invalid
because the December 31 meeting at which the appointment took place violated the
24-hour public-meeting notice requirement of R.C. 121.22(F). Bates requests a
writ declaring that Smith be barred from exercising the powers of the office of
township trustee and from receiving any compensation for that office, and that
Valentine is the rightful holder of that position. She also requests that the court
award her the costs of this action, as authorized by R.C. 2733.14.
       {¶ 9} Although Smith was served with the summons and complaint on
January 30, 2016, he failed to file an answer or other response.




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                                      Analysis
       {¶ 10} Quo warranto is the exclusive remedy to litigate the right of a person
to hold a public office. State ex rel. Ebbing v. Ricketts, 133 Ohio St.3d 339, 2012-
Ohio-4699, 978 N.E.2d 188, ¶ 8, citing State ex rel. Johnson v. Richardson, 131
Ohio St.3d 120, 2012-Ohio-57, 961 N.E.2d 187, ¶ 15. Moreover, “ ‘[t]o be entitled
to the writ of quo warranto, the relator must establish that the office is being
unlawfully held and exercised by [the] respondent and that [the] relator is entitled
to the office.’ ” Id., quoting State ex rel. Zeigler v. Zumbar, 129 Ohio St.3d 240,
2011-Ohio-2939, 951 N.E.2d 405, ¶ 23.
       {¶ 11} A petition for a writ of quo warranto may also be brought by the
attorney general or a prosecuting attorney. R.C. 2733.05. As Lucas County
prosecuting attorney, Bates has standing to bring this action in quo warranto.
“Judgment may be rendered on the right of the defendant, and also on the right of
the person averred to be so entitled, or only upon the right of the defendant, as
justice requires.” R.C. 2733.08.
       {¶ 12} For two reasons, we agree that Smith is unlawfully holding the office
of township trustee and that Valentine is entitled to that office. First, the position
of Spencer Township trustee was not vacant. R.C. 503.241 provides that when a
township officer is absent from the township for 90 days, the office is deemed
vacant. However, the statute explicitly excepts active military duty from that
provision:


               Whenever any township officer * * * is absent from the
       township for ninety consecutive days, * * * his office shall be
       deemed vacant and the board of township trustees shall declare a
       vacancy to exist in such office.
               ***




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                                January Term, 2016




               This section shall not apply to a township officer while in the
       active military service of the United States.


(Emphasis added.) Id. This section does not require notice to the township by the
active military service member. Nevertheless, the board minutes show that the
township trustees knew that Valentine was absent due to active military service.
Regardless of notice, under R.C. 503.241, Valentine’s office was unlawfully
deemed vacant. Smith has usurped the title and authority of that office.
       {¶ 13} Second, the declaration of vacancy and the appointment of Smith are
without legal effect because they were made at a meeting held in violation of Ohio’s
Open Meetings Act, R.C. 121.22. The statute states:


               (F) Every public body, by rule, shall establish a reasonable
       method whereby any person may determine the time and place of all
       regularly scheduled meetings and the time, place, and purpose of all
       special meetings. A public body shall not hold a special meeting
       unless it gives at least twenty-four hours’ advance notice to the news
       media that have requested notification, except in the event of an
       emergency requiring immediate official action. In the event of an
       emergency, the member or members calling the meeting shall notify
       the news media that have requested notification immediately of the
       time, place, and purpose of the meeting.


(Emphasis added.) R.C. 121.22(F). Smith and Hood held the December 31
meeting after giving less than 24 hours’ notice by placing a paper notice of an
“emergency meeting” on the township-hall door.
       {¶ 14} The phrase “immediate official action” is not defined in the statute,
and public bodies have considerable discretion to determine what constitutes an




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emergency. See, e.g., Wolf v. E. Liverpool School Dist. Bd. of Edn., 7th Dist.
Columbiana No. 03 CO 5, 2004-Ohio-2479, ¶ 39-46. “A common dictionary
definition of ‘emergency’ is, ‘an unexpected situation or sudden occurrence of a
serious and urgent nature that demands immediate attention.’ ” Id. at ¶ 40, quoting
American Heritage Dictionary 448 (2d College Ed.1922). However, a public body
cannot “call[] an emergency session as a pretext for avoiding public scrutiny of
their actions.” Id. at ¶ 46.
        {¶ 15} In this case, the December 30, 2015 trustees’ meeting ended at 11:15
a.m., with no suggestion in the minutes of any emergency, let alone one that would
compel another meeting in less than 24 hours.
        {¶ 16} R.C. 121.22(H) prescribes invalidation of any action taken at a
meeting that does not comply with the Open Meetings Act: “A resolution, rule, or
formal action adopted in an open meeting is invalid if the public body that adopted
the resolution, rule, or formal action violated division (F) of this section.”
        {¶ 17} The actions taken at the December 31 meeting, including the
declaration of a vacancy on the board and the appointment of Smith, are invalid
acts because the meeting did not comply with the Open Meetings Act.
                                     Conclusion
        {¶ 18} Under the plain language of R.C. 503.241, Valentine’s office of
township trustee should not have been declared vacant, and Smith has usurped the
title and authority of that office. In addition, the board of township trustees violated
the Open Meetings Act when it held an invalid “emergency” meeting on December
31, 2015.
        {¶ 19} We therefore issue a peremptory writ of quo warranto declaring that
Smith is barred from exercising the powers and office of Spencer Township trustee
and from receiving compensation for that office and that any actions he has taken
as trustee since January 1, 2016, are invalid. Shawn Valentine is the rightful holder
of the position of Spencer Township trustee, and he is therefore entitled to exercise




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                               January Term, 2016




the powers of that office and to receive compensation in compliance with laws
addressing townships in R.C. Chapter 503.
       {¶ 20} Costs are taxed to respondent.
                                                                   Writ granted.
       O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY,
FRENCH, and O’NEILL, JJ., concur.
                              _________________
       Julia R. Bates, Lucas County Prosecuting Attorney, and Evy M. Jarrett and
Elaine B. Szuch, Assistant Prosecuting Attorneys, for relator.
                              _________________




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