Supreme Court of Ohio Clerk of Court - Filed March 23, 2018 - Case No.

2018-0440

Case No. ____________

STATE OF OHIO ex rel. PATRICIA MEADE,

Relator-Appellant,

v.

VILLAGE OF BRATENAHL, et al.,

Defendants-Appellees.

MEMORANDUM IN SUPPORT OF JURISDICTION

TENDERED BY APPELLANT PATRICIA MEADE

Counsel for Appellant : Counsel for Appellees:

Christopher P. Finney (0038998) David J. Matty (012335)

Brian C. Shrive (0088980) Shana A. Samson (0072871)
FINNEY LAW FIRM, LLC Mark B. Marong (0082865)
4270 Ivy Pointe Blvd., Suite 225 Matty, Henrickson & Greve
Cincinnati, Ohio 453245 55 Public Square, Suite 1775
(513) 943-6655 Cleveland, Ohio 44113
chris@finneylawfirm.com (216) 621-6570
brian@finneylawfirm.com dmatty@mhglegal.com
ssamson@mhglegal.com
mmarong@mhglegal.com

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 TABLE OF CONTENTS
Page

EXPLANATION OF PUBLIC OR GREAT GENERAL INTEREST .....................................1

STATEMENT OF THE CASE ..................................................................................................4
STATEMENT OF FACTS .........................................................................................................4
ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW ..................................................6
FIRST PROPOSITION OF LAW:

PURSUANT TO THE OPEN MEETINGS ACT

(R.C. § 121.22), A STATUTORY INJUNCTION
SHALL ISSUE UPON PROOF OF EITHER:
(i) A VIOLATION OF ANY REQUIREMENT OF THE
ACT; OR (ii) A THREATENED VIOLATION OF ANY
REQUIREMENT OF THE ACT ...............................................................................................6
SECOND PROPOSITION OF LAW:

MEMBERS OF A PUBLIC BODY VIOLATE OR

THREATEN TO VIOLATE THE OPEN MEETINGS
ACT WHEN THEY VOTE ON MATTERS OF PUBLIC
BUSINESS THROUGH THE USE OF SECRET BALLOTS.............................................. 6
THIRD PROPOSITION OF LAW:

MEMBERS OF A PUBLIC BODY VIOLATE THEIR

DUTY TO KEEP AND MAINTAIN FULL AND
ACCURATE MEETING MINUTES WHEN THEY
RELY UPON EXTRANOUS MATERIALS OR
DOCUMENTS TO FULLY AND ACCURATELY
REFLECT WHAT OCCURRED AT A PUBLIC MEETING.............................................. 9
FOURTH PROPOSITION OF LAW:

MEMBERS OF A PUBLIC BODY VIOLATE OR

THREATEN TO VIOLATE THE OPEN MEETINGS ACT
WHEN THEY FAIL TO CONDUCT A ROLL CALL
10
VOTE TO ENTER INTO AN EXECUTIVE SESSION ...........................................................

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FIFTH PROPOSITION OF LAW:

MEMBERS OF A PUBLIC BODY VIOLATE THEIR

DUTY TO KEEP AND MAINTAIN FULL AND
ACCURATE MEETING MINUTES WHEN THE
MINUTES FAIL TO INDICATE THE CONDUCTING
OF A ROLL CALL VOTE OR HOW THE MEMBERS
VOTED IF SUCH A VOTE WAS ACTUALLY CONDUCTED........................................ 10
CONCLUSION...........................................................................................................................
12
CERTIFICATE OF SERVICE ..................................................................................................
13
APPENDIX
Journal Entry and Opinion of the Court of Appeals ..................................................................A

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 EXPLANATION OF WHY THIS CASE IS A CASE OF
PUBLIC OR GREAT GENERAL INTEREST

This appeal involves several issues of public or great general interest concerning

compliance with the letter and spirit of the Open Meetings Act, R.C. § 121.22 (the “OMA”), by

public bodies throughout the state of Ohio.

Secret Ballot Voting. The primary issue of public or great general interest involves

whether, consistent with the OMA, public bodies may make decisions on all matters of public

business through the use of secret-ballot voting. In the case sub judice, the Eighth District

concluded that a public body may conduct all public business through secret-ballot voting

without running afoul of the OMA; in direct conflict, the Ohio Attorney General previously

issued a formal opinion wherein he unequivocally concluded “that [the OMA’s] ‘liberal

construction’ mandate should be applied to the method of voting used by the members of a

public body in taking formal action at an open meeting. Voting by secret ballot is at variance

with the purpose of the open meetings law and only denies the people their right to view and

evaluate the workings of their government. Accordingly, a public body that is subject to the

requirements of the Ohio open meetings law may not vote in an open meeting by secret ballot.”

2011 Ohio Att’y Gen’l Opin. No. 38.

Because “Attorney General opinions are not binding on courts,” but are, “at best, . . .

persuasive authority,” State ex rel. Van Dyke v. Pub. Emp. Retirement Bd., 2003-Ohio-4123 ¶40,

99 Ohio St.3d 430, 793 N.E.2d 438, the holding of the Eighth District is a paramount

pronouncement of the OMA. Yet, as developed by the thoughtful and extensive analysis by the

Attorney General, allowing public bodies to conduct all public business by secret-ballot voting is

clearly not consistent with the letter or spirit of the OMA. Through secret-ballot voting now

permitted by the Eighth District, members of the public will now be kept in the dark as to how

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specific public officials voted on matters of public business. The hallmarks of the OMA –

transparency and accountability – are now lost in light of the decision of the Eighth District.

Full and Accurate Minutes Based Upon Materials Other Than the Minutes. The second

issue of public or great general interest concerns whether the mandate that “full and accurate

[meeting] minutes must contain sufficient facts and information to permit the public to

understand and appreciate the rationale behind the relevant public body’s decision,” White v.

Clinton Cty. Bd. of Comm’rs, 1996-Ohio-380, 76 Ohio St.3d 416, 424, 667 N.E.2d 1223, may be

satisfied through a public body’s reliance upon documents other than the minutes themselves. In

the case sub judice, the Eighth District concluded that the minutes of a council’s finance

committee met the standard set forth in White, not based upon the minutes themselves, but only

after allowing the minutes to be supplemented with other materials. Without even considering

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

which elucidate White, the Eighth District concluded that, even when the minutes of a council’s

finance committee contained substantively nothing more than a listing of motions and votes, the

minutes still satisfied the requirement of White when consideration was also given to the

transcripts of subsequent meetings of the full council, i.e., materials outside and in addition to the

minutes themselves.

Even though this Court acknowledged that “keeping full minutes allows members of the

public who are unable to attend [] meetings in person to obtain complete and accurate

information about the decision-making process of their government,” White, 76 Ohio St.3d at

420, the precedent of the Eighth District in the case sub judice now imposes the additional

burden of the public to seek and ferret out records beyond the minutes themselves in order to

obtain complete information on a legislative body’s decision-making process. The purpose

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underlying the requirement for full and accurate minutes is now lost in light of the decision of

the Eighth District

Roll Call Voting for Executive Session Not Indicated in Minutes. And the third issue of

public or great general interest concerns whether a public body complies with: (i) the

requirement of the OMA that “the members of a public body may hold an executive session only

after a majority of a quorum of the public body determines, by roll call vote, to hold an executive

session,” R.C. § 121.22(G); and/or (ii) the requirement pronounced in White to prepare and

maintain accurate minutes, when meeting minutes fail to indicate (a) that a roll call vote was

taken to enter executive session; or (b) how each member of the body voted on such roll call vote

(if such a vote was held). In the case sub judice, the Eighth District concluded that,

notwithstanding the foregoing two requirements based on the OMA or precedent of this Court, a

public body still complies with the OMA when extraneous evidence (produced by a private

citizen and not even from a governmental record) demonstrates that a roll call vote was taken,

and how each member voted, though the official minutes do not indicate that a roll call vote was

taken or how each member voted.

Overall, the decision of the Eighth District sets a dangerous precedent whereby public

bodies may avoid diligent compliance with the requirements of the OMA and undermine the

transparency and accountability at the heart of the OMA. Instead, of ensuing information is

readily provided to the public in the normal course, the decision of the Eighth District ratifies a

process that requires a private citizen to initiate litigation in order to obtain, through discovery,

information on the decision-making process of the public body that should readily be provided

through the openness of the meeting itself or through full, complete and accurate meeting

minutes. In summary, the decision of the Eighth District repudiates the letter and spirit of the

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OMA and, as such, set a dangerous precedent for open and transparent government in the State

of Ohio.

STATEMENT OF CASE

On January 25, 2016, Appellant Pat Meade commenced this action against the Village of

Bratenahl, Ohio, and councilmembers (collectively, “Bratenahl”), alleging several and serial

violations, or threatened violations, of the OMA. Subsequently, on December 15, 2016, and with

no analysis whatsoever, the Cuyahoga County Common Pleas Court entered summary judgment

in favor of Bratenahl and denied Meade’s motion for summary judgment.

On November 9, 2017, the Eighth District issued a decision affirming the trial court’s

decision. Meade filed a timely application or reconsideration on November 15, 2017. The

Eighth District granted the application, vacated its prior decision, but, nonetheless, affirmed the

trial court’s decision on February 8, 2018.

Because this case involves a question of both public and great general interest, Meade

now asks this Court to review the opinion of the Court of Appeals and reverse. Ohio Const. Art.

IV § 2(B)(2)(d).

STATEMENT OF FACTS

Patricia Meade publishes a community news publication, MOREbratenahl, focused on

her hometown of the Village of Bratenahl, Ohio. In support of her effort, Ms. Meade often

attends meetings of the Village Council and its various committees.

On January 21, 2015, Ms. Meade attended a meeting of the Bratenahl Village Council at

which the Council was to select a president pro tempore as mandated by R.C. § 731.10. The

councilmembers proceeded the vote for the president pro tempore utilizing secret ballots,

notwithstanding the protest of one councilmember to the use of secret ballots to conduct public

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business. Due to multiple voting irregularities, three separate rounds of secret-ballot voting were

required. The village law director alone reviewed the secret ballots and pronounced his tally of

the results. But for the commencement of this lawsuit and the availability of discovery, how

individual members of the Bratenahl Village Council voted at this meeting would still be secret

and not subject to public scrutiny and accountability. And, in fact, the appended ballots

produced in discovery are inaccurate, as one ballot in each round does not identify the

councilmember associated with that ballot, and in the second round of balloting one member

(Jim Puffenberger) is identified as voting twice.

Throughout 2016, Ms. Meade and her associates also attended the Council’s Finance

Committee meetings. Despite such meetings lasting for nearly an hour and involving extensive

discussions amongst the committee members about public finances before they voted on

recommendations to the entire council, the minutes of such meetings substantively contained

nothing more than the conclusory recommendation being made, together with the motions and

votes thereon. Completely absent from the minutes were sufficient facts and information to

permit the public to understand and appreciate the rationale behind the committee’s decision on

what to recommend to the council.

And, according to the official minutes of the meeting of the Bratenahl Village Council

held on August 19, 2015, upon returning to a public session after meeting an executive session,

the village mayor simply announced the purposes of and which councilmembers made the

motion to enter the executive session, but no roll call vote on the motion was indicated in the

minutes, let alone how the councilmembers voted. But only after litigation was commenced,

information obtained from a private citizen indicated that a roll call vote was taken and how each

member voted, though the official minutes did not contain such information.

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 ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW

PROPOSITION OF LAW NO. 1:

PURSUANT TO THE OPEN MEETINGS ACT (R.C. § 121.22), A STATUTORY
INJUNCTION SHALL ISSUE UPON PROOF OF EITHER: (i) A VIOLATION OF ANY
REQUIREMENT OF THE ACT; OR (ii) A THREATENED VIOLATION OF ANY
REQUIREMENT OF THE ACT.

“[S]tatutory injunctions should issue if the statutory requirements are fulfilled.” State ex

rel. Pizza v. Rezcallah, 84 Ohio St.3d 116, 123, 702 N.E.2d 81, 1998-Ohio-313 (quoting

Ackerman v. Tri-City Geriatric & Health Care, 55 Ohio St.2d 51, 57, 378 N.E.2d 145 (1978)).

The Open Meetings Act mandates the issuance of a statutory injunction upon proof of either (i) a

violation of any requirement of the Act; or (ii) a threatened violation of any requirement of the

Act; nothing more is required. See R.C. § 121.22(I)(l). The undisputed and proper summary-

judgment evidence established both violations and threatened violations of the OMA.

Accordingly, the trial court erred in not granting summary judgment in favor of Appellant.

PROPOSITION OF LAW NO. 2:

MEMBERS OF A PUBLIC BODY VIOLATE OR THREATEN TO VIOLATE THE
OPEN MEETINGS ACT WHEN THEY VOTE ON MATTERS OF PUBLIC BUSINESS
THROUGH THE USE OF SECRET BALLOTS.

The OMA provides that the Act:

shall be liberally construed to require public officials to take official action and
conduct all deliberations upon official business only in open meetings unless the
subject matter is specifically excepted by law.

And in terms of this fundamental principle in the context of members of a public body voting

through the use of secret ballots, the Ohio Attorney General has succinctly opined:

Voting by secret ballot is at variance with the purpose of the open meetings law
and only denies the people their right to view and evaluate the workings of their
government. Accordingly, a public body that is subject to the requirements of the
Open Meetings law may not vote in an open meeting by secret ballot.

Ohio Att'y Gen’l Opin. No. 2011-038 (emphasis added).

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 In direct conflict with the Attorney General’s opinion, the Eighth District in the case sub

judice concluded that, even when members of a public body conduct public business through

secret-ballot voting, no violation or threatened violation of the OMA occurs when (i) the secret-

ballot voting takes place in a meeting otherwise open to the public; and (ii) the public body keeps

the secret ballots themselves. See Decision ¶20 (“[b]ecause the votes were cast in open session

and were made public record, the votes were not ‘secret’ like the votes in the Attorney General’s

opinion”). But the effort of the Eighth District to distinguish the Attorney General’s opinion is a

distinction without a difference – how individual members of a public body actually voted on a

matter of public business is still kept secret from the public. And that is inconsistent with the

letter and spirit of the OMA.

“A court's ‘paramount concern’ when construing a statute is the statute’s legislative intent

and courts should avoid adopting a construction of a statute that would result in circumventing

the evident purpose of the enactment.” State ex rel. Young v. Bd. of Ed., 12th Dist. Warren No.

CA2012-02-013, 2013-Ohio-1111 ¶23. And, in light of the mandate of the OMA that it be

liberally construed, this Court has repeatedly and readily found violations of the Open Meetings

Act even when the specific conduct at issue was not expressly prohibited within the explicit

language of the Act, but the spirit of the OMA was violated. See, e.g., White v. King, 147 Ohio

St.3d 74, __ N.E.2d __, 2016-Ohio-2770 (while Open Meetings Act does not specify the manner

or mode of discussions necessary to constitute a “meeting,” holding that “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”;

“[a]llowing public bodies to avoid the requirements of the Open Meetings Act by discussing

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public business via serial electronic communications subverts the purpose of the act”); State ex

rel. Cincinnati Post v. Cincinnati, 76 Ohio St.3d 540, 668 N.E.2d 903, 1996-Ohio- 372

(1996)(series of back-to-back-meetings of less than a majority of municipal council still

constituted a meeting and, thus, through conducting such series of back-to-back-meetings,

members of council violated Open Meetings Act; “[w]e hold that the statute prevents such

maneuvering to avoid its clear intent”). And consistent with this Court’s methodology in such

cases, a common pleas court appropriately found secret-ballot voting to be prohibited under the

OMA. See Forest Hills Journal v. Forest Hills Local Sch. Dist. Bd. of Educ., No. A-1100109,

2011 Ohio Misc. LEXIS 799 (Ham. Cty. C.P. Oct. 6, 2011)(secret-ballot voting by a

subcommittee of a board of education violated the OMA); see also Manogg v. Stickle, 5th Dist.

Licking Case No. 97 CA 104, 1998 Ohio App. LEXIS 1961, at *6 (Apr. 8, 1998)(when the

members of the public body whisper and pass documents among themselves, OMA violated

because attendees “could not hear the business being transacted by” the members of the public.

The OMA “exists to shed light on deliberations of public bodies [and] cannot be

interpreted in a manner which would result in the public being left in the dark.” State ex rel.

Cincinnati Post v. City of Cincinnati, 76 Ohio St.3d 540, 544, 1996-Ohio-372, 668 N.E.2d 903.

Yet, the precedent of the Eighth District leaves the public in the dark and public officials free

from transparency and accountability.

Despite the clear and unequivocal language of the OMA, the Attorney General Opinion,

and numerous decisions of this Court, the Eighth District created a standard that does not

advance the purposes and goals of the OMA, but directly undermines them. The OMA expressly

declares that it is to be liberally construed in openness so as to require public officials to take

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official action and conduct all deliberations upon official business only in open meetings. In so

doing, this Court must conclude and declare that secret-ballot voting violates the OMA.

Proposition of Law 3:
MEMBERS OF A PUBLIC BODY VIOLATE THEIR DUTY TO KEEP AND MAINTAIN
FULL AND ACCURATE MEETING MINUTES WHEN THEY RELY UPON
EXTRANEOUS MATERIALS OR DOCUMENTS TO FULLY AND ACCURATELY
REFLECT WHAT OCCURRED AT A PUBLIC MEETING.

In White v. Clinton Cty. Bd. of Comm’rs, 76 Ohio St.3d 416, 423 667 N.E. 2d 1223,

1996-Ohio-380, this Court held that “full and accurate [meeting] minutes must contain sufficient

facts and information to permit the public to understand and appreciate the rationale behind the

relevant public body’s decision.” And, subsequently, in State ex rel. Long v. Cardington Village

Council, 92 Ohio St.3d 54, 748 N.E.2d 58, 2001-Ohio-130, this Court elucidated the standard in

White by rejecting the use of extraneous materials or documents to make up for any deficiency in

the minutes themselves when the public body “never treated [such materials] as the official

minutes of their meetings.” Id. at 57. Furthermore, the Court has also declared that “[m]inutes

of any meeting of a public body besides properly called executive sessions ‘certainly should not

be limited to a mere recounting of the body's roll call votes.’” Id., at 58, quoting White, 76 Ohio

St.3d, at 423.

Instead of considering whether the requirement that “full and accurate [meeting] minutes

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

the rationale behind the relevant public body’s decision,” the decision of the Eighth District now

allows a public body to rely upon matters other than the minutes themselves. Specifically, the

Eighth District allowed the future minutes of a council meeting to supplement and rectify any

problems with the minutes of a committee meeting. But the precedent of this Court through both

White and Long clearly require the minutes themselves must be “full and accurate” which is not

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somehow satisfied through additional and yet-to-be-created records never treated as the minutes

of the pertinent public body.

Proposition of Law 4:
MEMBERS OF A PUBLIC BODY VIOLATE OR THREATEN TO VIOLATE THE
OPEN MEETINGS ACT WHEN THEY FAIL TO CONDUCT A ROLL CALL VOTE TO
ENTER INTO AN EXECUTIVE SESSION.

Proposition of Law 5:
MEMBERS OF A PUBLIC BODY VIOLATE THEIR DUTY TO KEEP AND MAINTAIN
FULL AND ACCURATE MEETING MINUTES WHEN THE MINUTES FAIL TO
INDICATE THE CONDUCTING OF A ROLL CALL VOTE OR HOW THE MEMBERS
VOTED IF SUCH A VOTE WAS ACTUALLY CONDUCTED.

Just “[a]s a court speaks only through its journal, a public board, commission, or other

deliberative body speaks through its minutes or its written record of resolutions, directives, and

action.” Swafford v. Norwood Bd. of Ed., 14 Ohio App.3d 346, 348, 471 N.E.2d 509 (1st Dist.

1984). And a corollary thereto is the additional legal proposition that “minutes are those that are

approved as the minutes, not information from additional sources.” State ex rel. Patrick Bros. v.

Putnam Cty. Bd. of Comm’rs, 2014-Ohio-2717 ¶34 (3d Dist.). Thus, post hoc efforts to recreate

or to establish through other sources what supposedly occurred at a meeting of a public body are

improper and cannot refute or supplement the official record. See Long, 92 Ohio St.3d at 57

(rejecting contention that public officials fully complied with these duties to prepare and make

available minutes by audiotaping council meetings and making the audiotapes of the meetings

available to the public; “in determining whether respondents complied with their statutory duties,

we consider the written minutes provided to Long rather than the audiotapes”).

R.C. 121.22(G) specifically mandates that, if a public body convenes an executive

session during the course of a meeting, “the motion and vote to hold that executive session shall

state which one or more of the approved matters listed in [division (G) of Section 121.22] are to

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be considered at the executive session.” And, R.C. 121.22(G) further allows such an executive

session but only after “the public body determines, by a roll call vote, to hold an executive

session.”

In this case, the official record of the meeting of August 19, 2015, indicates that the

motion for the executive session did not “state which one or more of the approved matters listed

in [division (G) of Section 121.22] are to be considered at the executive session.” Similarly, the

official record of that meeting indicates that no roll call vote was conducted, let alone how each

individual member of council voted. Based upon the official record, it is clear that Respondents

violated and/or threatened to violate the Open Meetings Act by holding an executive session

when the minutes doe not indicate that a roll call vote on the motion to go into executive session

was conducted.

While extrinsic evidence – the recording produced by Meade and her associates –

demonstrates that, in fact, a roll call vote was held; this Court’s ruling in Long dictates that such

recording can not be used to supplement the official minutes.

And even if extrinsic evidence might establish that a roll call vote was taken and how

each member of the public body voted, if the minutes fail to indicate that such a roll call vote

was held or how each member of the public body voted, then the members of the public body

have violated the requirement of White developed above that requirements “full and accurate

[meeting] minutes must contain sufficient facts and information to permit the public to

understand and appreciate the rationale behind the relevant public body’s decision.” Thus, either

the Respondents did not convene into executive session after a roll call vote; or the minutes are

inaccurate. Under either scenario, the Respondents have violated R.C. 121.22.

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 CONCLUSION

This matter involves matters of public and great general interest. The Eighth District

issued a decision that conflicts with precedential decisions by this Court, as well as a

longstanding Attorney General Opinion. To allow the precedent of the Eighth District on the

permissibility of secret-ballot voting and how deficiencies or inaccuracies in meeting minutes

may be supplemented with extrinsic evidence violates the letter and spirit of the OMA, as well as

this Court’s precedent in White and Long. Accordingly, this Court should accept jurisdiction

so that the public or great general interest may be served and advance by ensuring compliance

with the liberal construction afforded to the OMA so that actions and decision-making process of

public officials and public bodies will be subject to transparency and accountability.

Respectfully submitted,

/s/ Brian C. Shrive

Brian C. Shrive (0088980)
Christopher P. Finney (0038998)
FINNEY LAW FIRM, LLC
4270 Ivy Pointe Blvd., Suite 225
Cincinnati, Ohio 45245
(513) 943-6650
(513) 043-6669 (fax)
chris@finneylawfirm.com
brian@finneylawfirm.com

Counsel for Relator-Appellant

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 CERTIFICATE OF SERVICE

This will certify that a true and accurate copy of the foregoing Memorandum in Support
of Jurisdiction of Appellant has been sent by email and ordinary U.S. mail to counsel for
appellees, David J. Matty (dmatty@mhglegal.com), Shana A. Samson
(ssamson@mhglegal.com), Mark Marong (mmarong@mhglegal.com), Matty, Henrickson &
Greve, 55 Public Square, Suite 1775, Cleveland, Ohio 44113 on this 23rd day of March, 2018.

/s/ Brian C. Shrive

Christopher P. Finney (0038998)
Brian C. Shrive (0088980)

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