[Cite as State ex rel. More Bratenahl v. Bratenahl, 2017-Ohio-8484.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 105281



                            STATE OF OHIO EX REL.
                           MORE BRATENAHL, ET AL.
                                                            RELATORS-APPELLANTS

                                                      vs.


             VILLAGE OF BRATENAHL, OHIO, ET AL.
                                                            RESPONDENTS-APPELLEES




                                            JUDGMENT:
                                             AFFIRMED


                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                    Case No. CV-16-857888

        BEFORE: Kilbane, J., Keough, A.J., and McCormack, J.

        RELEASED AND JOURNALIZED:                           November 9, 2017
ATTORNEY FOR APPELLANT

Christopher P. Finney
Finney Law Firm, L.L.C.
4270 Ivy Pointe Boulevard, Suite 225
Cincinnati, Ohio 45245


ATTORNEYS FOR APPELLEE

David J. Matty
Mark B. Marong
Shana Samson
Matty Henrikson & Greve, L.L.C.
55 Public Square, Suite 1775
Cleveland, Ohio 44113
MARY EILEEN KILBANE, J.:

       {¶1} Relator-appellant, state of Ohio ex rel. Patricia Meade (“Meade”), appeals

from   the   trial   court’s   decision   granting   summary      judgment   in   favor   of

respondents-appellees, the village of Bratenahl (“Bratenahl”), Mayor John Licastro, and

Councilmembers Mary Beckenbach, James Puffenberger, Erin Smith, Geoffrey Williams,

and Marla Murphy (collectively referred to as “Bratenahl Councilmembers”). For the

reasons set forth below, we affirm.

       {¶2} In January 2016, Meade, a Bratenahl resident, and State ex rel. MORE

Bratenahl, a community news publication disseminated by Meade, filed a complaint

against Bratenahl and its councilmembers (collectively referred to as “Bratenahl

respondents”) alleging that they violated or threatened to violate various provisions of

Ohio’s Open Meetings Act (“OMA”) by casting secret ballots when selecting the

Bratenahl Council President pro tempore in January 2015. 1              The OMA, which is

popularly known as the Sunshine Law, mandates that all meetings of any public body are

to be public meetings open to the public at all times. R.C. 121.22(C). Meade sought

injunctive relief and an award of civil forfeiture and attorney fees.

       {¶3} In April 2016, Meade filed an amended complaint, naming Bratenahl

Mayor John Licastro as a respondent and adding three counts that expanded on the

alleged violations of the OMA. Count 2 alleged that Licastro, Murphy, Puffenberger,


       1InJuly 2016, State ex rel. MORE Bratenahl voluntarily dismissed all of its
claims against defendants, leaving Meade as the sole plaintiff.
and Williams threatened to violate the OMA by failing to keep and maintain minutes of

the Bratenahl Council Finance Committee for the meetings held on January 19, 2016,

February 16, 2016, March 14, 2016, and April 18, 2016. In Counts 3 and 4, Meade

alleges that Bratenahl Council conducted public business in illegal executive sessions in

violation of the OMA on August 19, 2015 (Count 3) and November 19, 2014 (Count 4).2

      {¶4} Meade sought a declaratory judgment that the Bratenahl Councilmembers

violated or threatened to violate the OMA and sought an injunction prohibiting the

councilmembers from conducting any votes by secret ballot, unless authorized by Ohio

law, and mandating all defendants to maintain and prepare accurate council meeting

minutes. Meade further sought a civil forfeiture fee of $500 for each distinct violation or

threatened violation of the OMA, as well as court costs and attorney fees.

      {¶5} In September 2016, Meade moved for summary judgment. In her motion,

Meade alleges the following three separate violations or threatened violations of the

OMA by the Bratenahl respondents:

      (i)     using secret ballots to conduct official business of [Bratenahl
              Council];

      (ii)    failing to keep and maintain minutes of the [Bratenahl Council
              Finance Committee,] which contain sufficient facts and information
              so as to permit the public to understand and appreciate the rationale
              behind the Committee’s actions; and

      (iii)   during the course of a public meeting [Bratenahl Council] held on
              August 19, 2015, conducting public business of the Council in an


      2Meade   dismissed Count 4 of the amended complaint in December 2016.
             illegal executive session and/or entering in such executive session in
             violation of the requirements of the [OMA].

      {¶6} The Bratenahl respondents opposed Meade’s motion for summary judgment

and filed their own cross-motion for summary judgment. In their motion, the Bratenahl

respondents argued that Meade failed to meet her burden of persuasion by a

preponderance of the evidence that they violated or threatened to violate the OMA.

      {¶7} In December 2016, the trial court denied Meade’s motion for summary

judgment and granted summary judgment in favor of the Bratenahl respondents.

      {¶8} It is from this order that Meade appeals, raising the following two

assignments of error, which shall be discussed together:

                                Assignment of Error One

      The trial court erred in granting summary judgment in favor of [the
      Bratenahl respondents].

                                Assignment of Error Two

      The trial court erred in denying summary judgment in favor of [Meade].

      {¶9} Within these assigned errors, Meade argues that the evidence establishes

multiple violations or threatened violations of the OMA by the Bratenahl respondents.

Specifically, the Bratenahl respondents:     (1) used secret ballots to conduct official

business of council; (2) failed to keep and maintain minutes of the Bratenahl Council

Finance Committee; and (3) conducted public business in an illegal session on August 19,

2015. As a result, Meade contends that trial court erred when it denied her summary

judgment motion and granted summary judgment in favor of the Bratenahl respondents.
                        Standard of Review — Summary Judgment

       {¶10} Appellate review of summary judgment is de novo. Grafton v. Ohio Edison

Co., 77 Ohio St.3d 102, 105, 1996-Ohio-336, 671 N.E.2d 241. Summary judgment is

appropriate under Civ.R. 56 when: (1) there is no genuine issue of material fact; (2) the

moving party is entitled to judgment as a matter of law; and (3) viewing the evidence

most strongly in favor of the nonmoving party, reasonable minds can come to but one

conclusion and that conclusion is adverse to the nonmoving party. Temple v. Wean

United, Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1977), citing Civ.R. 56(C).

       {¶11} Once the moving party satisfies its burden, the nonmoving party “may not

rest upon the mere allegations or denials of the party’s pleadings, but the party’s response,

by affidavit or as otherwise provided in this rule, must set forth specific facts showing

that there is a genuine issue for trial.” Civ.R. 56(E); Mootispaw v. Eckstein, 76 Ohio

St.3d 383, 385, 1996-Ohio-389, 667 N.E.2d 1197. Doubts must be resolved in favor of

the nonmoving party.        Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 358-359,

1992-Ohio-95, 604 N.E.2d 138.

                                         The OMA

       {¶12} R.C. 121.22 requires public bodies in Ohio to take official action and

conduct all deliberations on official business in open meetings where the public can

attend and observe such deliberations. Public bodies must provide advance notice to the

public, indicating where and when the meetings will occur and, in the case of special

meetings, state the specific topics the body will discuss. R.C. 121.22(F). “A plain
reading of R.C. 121.22 reveals the legislature’s intent to require that all public bodies

generally conduct their meetings in the open so that the public can have access to the

business discussed or transacted therein.”       Wyse v. Rupp, 6th Dist. Fulton No.

F-94-19,1995 Ohio App. LEXIS 4008,11-12 (Sept. 15, 1995). “Its purpose is to assure

accountability of elected officials by prohibiting their secret deliberations on public

issues.” State ex rel. Cincinnati Enquirer v. Hamilton Cty. Commrs., 1st Dist. Hamilton

No. C-010605, 2002-Ohio-2038, ¶ 2, citing State ex rel. Cincinnati Post v. Cincinnati, 76

Ohio St.3d 540, 668 N.E.2d 903 (1996). However, if specific procedures are followed,

public officials may discuss certain sensitive information privately in conformity with

R.C. 121.22(G). Id. at ¶ 2-3.

       {¶13} The party alleging a violation of the OMA must establish that the public

body held a meeting with a majority of its members and that the meeting improperly

excluded the public.       State ex rel. Hardin v. Clermont Cty. Bd. of Elections,

2012-Ohio-2569, 972 N.E.2d 115, ¶ 22-24 (12th Dist.), citing State ex rel. Stern v. Butler,

7th Dist. Jefferson No. 98-JE-54, 2001-Ohio-3404; State ex rel. Sigall v. Aetna, 45 Ohio

St.2d 308, 345 N.E.2d 61 (1976). The burden then shifts to the public body to produce

evidence demonstrating that the meeting at issue properly fell within one of the statutory

exceptions. Id. at ¶ 25.

                            Election of President Pro Tempore
       {¶14} Meade first argues that the Bratenahl respondents violated the OMA at the

January 21, 2015 Bratenahl Council meeting when the Bratenahl councilmembers used

“secret written ballots” to elect the president pro tempore.

       {¶15} In the instant case, a review of the record reveals that two councilmembers

were nominated to serve as president pro tempore at the January 2015 meeting.

Councilmember Beckenbach then expressed her desire to take the vote by secret ballot.

In response, then-Councilmember Laura Bacci inquired as to whether voting by secret

ballot was legal.     The members of the Bratenahl Council proceeded to vote by

handwriting their respective votes and names on a piece of paper and handing their votes

to David Matty (“Matty”), Bratenahl’s Solicitor.         Matty reviewed and counted the

ballots. After counting the votes, Matty declared that another vote had to be taken

because a vote had been cast for an individual who was not nominated for president pro

tempore. Matty advised the councilmembers that they could only vote for one of the two

individuals that had been nominated for president pro tempore.

       {¶16} A second set of ballots was then cast by the councilmembers.            Matty

reviewed and counted the second set of ballots. Thereafter, Matty announced that the

results of the second set of ballots for president pro tempore resulted in a tie vote. As a

result, the councilmembers cast a third set of ballots in the same manner as the first and

second set of votes. After Matty reviewed and counted the third set of ballots, he

announced that Councilmember Puffenberger had been elected president pro tempore of

Bratenahl Council. Councilmember Puffenberger served in the capacity of president pro
tempore until December 31, 2015. Councilmember Puffenberger was reappointed as

president pro tempore by a public vote on January 21, 2016.

      {¶17} In support of her argument, Meade relies on 2011 Ohio Atty. Gen. Ops.

No. 2011-038 for the proposition that secret ballots are a violation of the OMA. In this

opinion, the Ohio Attorney General was specifically asked whether it was permissible for

the Ohio Board of Education to vote by secret ballot in an open meeting. The Attorney

General concluded that “the State Board of Education could not vote in an open meeting

by secret ballot.” Id. In reaching his decision, the Attorney General stated:

      R.C. 121.22 does not address explicitly the use of secret ballots by the
      members of a public body, nor does any other provision of the Revised
      Code address the use of secret ballots by the Board. Voting by secret ballot
      is a process of voting by slips of paper on which the voter indicates his vote.
       [Robert’s Rules of Order, Newly Revised, 412 (11th Ed.2011)]; Black’s
      Law Dictionary 143 (6th Ed.1990). Voting by secret ballot is “used when
      secrecy of the members’ votes is desired.” Robert’s Rules of Order, Newly
      Revised, at 412. When a secret ballot is used, the vote “is cast in such a
      manner that the person expressing such choice cannot be identified with the
      choice expressed.” Black’s Law Dictionary 143 (6th Ed.1990); see also
      Webster’s Third New International Dictionary 2052 (unabr. ed. 1993)
      (defining “secret” as something “kept hidden” or “kept from the knowledge
      of others, concealed as part of one’s private knowledge”).

      No Ohio courts and only one Attorney General opinion have confronted the
      use of secret ballot voting by a public body that is subject to the
      requirements of R.C. 121.22. See 1980 Op. Att’y Gen. No. 80-083
      (syllabus, paragraph 4) (“R.C. 121.22 does not require a roll call vote or
      prohibit voting at a meeting subject to that section by ‘secret ballot’”).

(Emphasis added.) Id. at 3.

      {¶18} The Attorney General went on to state that “[i]f the votes of the individual

members of a public body are denied public scrutiny, the public is unable to properly
evaluate the decision-making of the public body and hold its members responsible for

their decisions.” Id. at 5.

       {¶19} In the instant case, the ballots were handwritten in open session and

included the name of the nominated individual as well as the name of each

councilmember issuing the vote. The written ballots were then maintained by Bratenahl

as a public record and subsequently produced to Meade. Because the votes were cast in

open session, identify each councilmember’s name with each respective vote and were

made public record, the votes were not“secret” like the votes in the Attorney General’s

opinion. Here, the name of the nominated individual and the respective councilmember

were not concealed from the public, and the public was not denied the knowledge of

Bratenahl’s decision-making process. Based on these circumstances, Meade is unable to

establish her burden by the preponderance of the evidence that the Bratenahl respondents

violated or threatened to violate the OMA on January 21, 2015.

                              Finance Committee Minutes

       {¶20} Meade next argues that the Bratenahl respondents violated or threatened to

violate the OMA when the Finance Committee’s meeting minutes failed to contain

sufficient facts and information to permit the public to understand and appreciate the

rationale behind the committee’s actions. Specifically, Meade contends certain meeting

minutes indicate that various items came before the committee, the action taken thereon,

and the votes of the committee members on a motion to effectuate that action, but when

consideration is given to the length of these meetings and the limited number of items
considered, there clearly would have been significantly more involved than simply a

motion and vote concerning each item.         Meade acknowledges that the audiovisual

recordings she obtained of the meetings fully revealed the discussions and information at

each meeting.

       {¶21} R.C. 121.22(C) provides that

       [t]he minutes of a regular or special meeting of any public body shall be
       promptly prepared, filed, and maintained and shall be open to public
       inspection. The minutes need only reflect the general subject matter of
       discussions in executive sessions authorized under division (G) or (J) of this
       section.

       {¶22} The Ohio Supreme Court has defined “minutes” by its common definition:

“‘a series of brief notes taken to provide a record of proceedings * * *: an official record

composed of such notes. Webster’s Third New International Dictionary (1986) 1440.’”

White v. Clinton Cty. Bd. of Commrs., 76 Ohio St.3d 416, 421, 667 N.E.2d 1223, fn. 3

(1996).

       {¶23} White involved a request of certain meeting minutes of the Clinton County

Board of Commissioners, and the court’s interpretation of R.C. 305.10 (Record of

proceedings by Board of County Commissioners) and its interplay with R.C. 121.22 and

149.43 (Ohio Public Records Act).3 White argued that these statutes impose a duty on

boards of county commissioners to prepare minutes that reflect the substance of their


       3Whitesought a writ of mandamus compelling the Clinton County Board of
Commissioners to prepare complete and accurate minutes of all Board policies.
The minutes provided by the Board failed to document new policies adopted by the
Board and were missing a page.
meetings and provide some indication of the nature and direction of their discussions.

The court agreed, and concluded that these statutes, when read together, impose a duty on

boards of county commissioners to maintain a full and accurate record of their

proceedings. Id. at 418. In reaching its decision, the White court stated:

       We recognize that it is not the business of this court to micro-manage the
       public record-keeping procedures of local governments; public bodies
       should be trusted with a certain degree of latitude in the preparation of
       minutes and other records of their proceedings. Accordingly, we resist the
       temptation to prescribe any particular means of satisfying R.C. 121.22 and
       305.10. Audio- or videotape recordings, word-for-word transcripts, even
       abstracts of the discussions indicating the identity of the speakers and the
       chronology and substance of their statements, are all legitimate means of
       satisfying the requirements of R.C. 121.22 and 305.10. Accordingly, we
       refrain from laying down specific guidelines, other than the dictate that for
       public records maintained under R.C. 121.22 and 305.10, full and accurate
       minutes must contain sufficient facts and information to permit the public to
       understand and appreciate the rationale behind the relevant public body’s
       decision.

Id. at 424.

       {¶24} In the instant case, the meeting minutes in question provide an accurate and

adequate record of the Finance Committee’s proceedings, recommendations, and the

Bratenahl Council’s actions on the same. The minutes at issue reference the ordinance

and resolution numbers being considered for recommendation to council, identification of

each motion, some discussion, and the votes of the committee members. Additionally,

Meade acknowledges that the meetings were audio recorded and fully revealed the

discussions and information at each meeting.       Under White, “[a]udio- or videotape

recordings * * * are all legitimate means of satisfying the requirements of R.C. 121.22.”

Id. at 424.
       {¶25} Based on these circumstances, Meade failed to establish a violation or

threatened violation with regard to the Finance Committee’s minutes.

                                      Executive Session

       {¶26} Lastly, Meade argues that the Bratenahl respondents did not comply with the

conditions precedent for holding an executive session at the August 19, 2015 Bratenahl

Council meeting.

       {¶27} An executive session is a closed-door conference convened by a public

body, after a roll call vote, that is attended by only the members of the public body (and

those they invite), that excludes the public. R.C. 121.22(G). The OMA allows for

executive sessions in certain limited circumstances. R.C. 121.22(G)(1)-(8); State ex rel.

Long v. Cardington Village Council, 92 Ohio St.3d 54, 2001-Ohio-130, 748 N.E.2d 58.

As relevant here, they include the consideration of the purchase of property for public

purposes and conferences with an attorney concerning disputes involving the public body

that is the subject of pending or imminent court action. R.C. 121.22(G)(2)-(3).

       {¶28} Meade acknowledges that the record provides an after-the-fact assertion that

a motion to enter executive session was made, but contends that the official record fails to

indicate whether the motion to enter executive session stated an actual purpose and

whether there was a roll call vote.

       {¶29} However, a review of the audio recording of the August 19, 2015 Bratenahl

Council Meeting evidences that the motion and roll call vote to hold executive session

were clearly taken. The motion and roll call vote took place before the court reporter
began transcribing the record. The roll call vote is also reflected in the Bratenahl Clerk’s

notes, which was provided during discovery. Additionally, the transcript of the August

19, 2015 meeting indicates council’s entrance into executive session. Mayor Licastro

asked that the record reflect that council went into executive session to talk about

acquisition of land and threatened litigation, which is permissible under R.C.

121.22(G)(2)-(3). Mayor Licastro also states that the motion to enter executive session

was made by Councilmember Puffenberger and seconded by Councilmember Murphy.

Mayor Licastro then states that Councilmember Puffenberger made the motion to return

to the public session and the motion was seconded by then-Councilmember Bacci. The

foregoing satisfies the statutory requirements for entering an executive session.

       {¶30} In light of the foregoing, we find that Meade offered no evidence to rebut

the presumption that the Bratenahl respondents did not comply with the OMA.

Therefore, we find that the trial court properly granted summary judgment in favor of the

Bratenahl respondents and properly denied Meade’s motion for summary judgment.

       {¶31} The first and second assignments of error are overruled.

       {¶32} Judgment is affirmed.

       It is ordered that appellees recover of appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.
      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




MARY EILEEN KILBANE, JUDGE

KATHLEEN ANN KEOUGH, A.J., and
TIM McCORMACK, J., CONCUR
