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COURT OF COMMON PLEAS

MONTGOMERY COUNTY, OHIO

STATE OF OHIO ex rel. : Case No.


BONNIE BERTELSON :
14172 Old Dayton Road :
New Lebanon, Ohio 45345, : JUDGE
:
Relator, :
:
v. :
:
PERRY TOWNSHIP, : COMPLAINT FOR
MONTGOMERY COUNTY, OHIO : WRIT OF MANDAMUS
℅ Mat Heck, Jr. : ------------
Montgomery County Prosecutor's Office : ALTERNATIVE AND/OR
301 W. Third St. : PEREMPTORY WRIT
P.O. Box 972 : REQUESTED
Dayton, OH 45402, :
:
and :
:
DALE SEIM, Township Trustee :
Perry Township, Montgomery County, Ohio :
15386 Little Richmond Road :
New Lebanon, Ohio 45345, :
:
and :
:
:
RON PRICE, Township Trustee :
Perry Township, Montgomery County, Ohio :
15824 Little Richmond Road :
New Lebanon, Ohio 45345, :
:
and :
:
MELISSA MEARS, Township Trustee :
Perry Township, Montgomery County, Ohio :
15599 Providence Pike :
Brookville, Ohio 45309, :
:
and :
:
:
:

[ continued on next page ]


RHONDA BEHNKEN, Township Fiscal :
Officer :
Perry Township, Montgomery County, Ohio :
1175 N. Johnsville Brookville Road :
Brookville, Ohio 45309, :
:
Respondents.

Comes now the STATE OF OHIO, by and on relation to BONNIE BERTELSON

(“Relator”), and, in support of its claim for the issuance of a writ of mandamus and an award of

statutory damages, attorney fees and costs, alleges as follows:

1. This is an action for a writ of mandamus pursuant to the Public Records Act, R.C. §

149.43, to compel Respondents to comply with their legal duty to produce copies of public records

in their possession, custody, or control. Generally speaking, the public records at issue are:

• the resignations of police officers with the Perry Township Police Department
between October 1, 2018 and October 19, 2018;

• communications, between October 1, 2018 and November 1, 2018, between or


amongst the township trustees and township fiscal officer concerning the resignations
of police officers with the Perry Township Police Department;

• communications, between October 1, 2018 and October 19, 2018, between or


amongst the township trustees and township fiscal officer concerning either the
search for or the hiring of an interim police chief for the Perry Township Police
Department;

• communications, between October 1, 2018 and February 25, 2019, between or


amongst the township trustees and township fiscal officer concerning either the
search for or the hiring of a permanent police chief for the Perry Township Police
Department;

• the meeting minutes of all meetings of the Perry Township Board of Trustees from
October 1, 2018 to February 25, 2019;

• the notices issued all meetings of the Perry Township Board of Trustees from October
1, 2018 to February 25, 2019;

• the records retention schedule of Perry Township, in effect from October 1, 2018 to
present.

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2. This Court possess subject matter jurisdiction over this original action pursuant to

Article IV, Section 4 of the Ohio Constitution.

3. Relator BONNIE BERTELSON is a taxpayer and resident of the State of Ohio, residing

in Montgomery County, Ohio.

4. Respondent PERRY TOWNSHIP, MONTGOMERY COUNTY, OHIO, is a body

politic and corporate, and, pursuant to Ohio Rev. Code § 503.01, has the capacity to sue and be

sued.

5. PERRY TOWNSHIP is a “public office” as defined in Ohio Rev. Code § 149.011(A).

6. Respondent DALE SEIM is a township trustee for Perry Township, Montgomery

County, Ohio.

7. Respondent RON PRICE is a township trustee for Perry Township, Montgomery

County, Ohio.

8. Respondent MELISSA MEARS is a township trustee for Perry Township,

Montgomery County, Ohio.

9. Together, Mr. SEIM, Mr. PRICE and Ms. MEARS are the three members of the Perry

Township Board of Township Trustees.

10. Respondent RHONDA BEHNKEN is the township fiscal officer for Perry Township,

Montgomery County, Ohio.

11. Mr. SEIM, Mr. PRICE, Ms. MEARS and Ms. BEHNKEN are “public officials” as

defined in Ohio Rev. Code § 149.011(D).

12. Individually or collectively, the Respondents have possession, custody or control of the

public records which are the subject of this action.

13. All of the Respondents are located in Montgomery County, Ohio.

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Public Records Request

14. On March 4, 2019, Ms. BERTELSON, by and through her attorney, submitted written

requests to obtain copies of the public records of PERRY TOWNSHIP (hereinafter, the “Public

Records Requests”).

15. True and accurate copies of the Public Records Requests are attached hereto as Exhibits

1 to 4.

16. The Public Records Requests were tendered to each of the Respondents via certified

mail, return receipt requested.

17. On March 6, 2019, each of the Public Records Requests were received and signed for

or on behalf of each of the Respondents (the “Signed Return Receipts”).

18. True and accurate copies of the Signed Return Receipts are attached hereto as Exhibits

5 to 8.

19. To date, Respondents have failed to respond affirmatively or negatively to Ms.

BERTELSON (or her attorney) with regard to the Public Records Requests.

20. To date, Respondents have failed to provide any records to Ms. BERTELSON (or her

attorney) in response to the Public Records Requests.

Writ of Mandamus is Appropriate

21. The records sought pursuant to the Public Records Requests were created or received

by or come under the jurisdiction of the Respondents.

22. The records sought pursuant to the Public Records Requests serve to document the

organization, functions, policies, decisions, procedures, operations, or other activities of the

Respondents as a public office or public officials.

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23. The records sought by Relator pursuant to the Public Records Requests constitute

“public records” as defined in Ohio Rev. Code § 149.43(A).

24. In failing to provide any of the public records responsive to the Public Records

Requests within a reasonable period, Respondents have effectively denied the Public Records

Requests.

25. In denying the Public Records Requests, Respondents have failed to comply with the

clear legal duties imposed upon them by the Public Records Act.

26. In denying the Public Records Requests, Respondents have failed to comply with the

clear legal duties imposed upon them by the Public Records Act to provide a written explanation,

including legal authority, setting forth why the Public Records Requests were denied.

27. Respondents are the public office or persons responsible for the public records sought

by Ms. BERTELSON pursuant to the Public Records Requests.

28. Ms. BERTELSON has a clear legal right to copies of the public records pursuant to the

Public Records Requests.

29. Respondents have a clear legal duty to provide to Ms. BERTELSON copies of the

public records requested pursuant to Public Records Requests.

30. Relator has no adequate remedy in the ordinary course of law to obtain copies of the

public records requested pursuant to Public Records Requests.

31. The Public Records Act specifically provides for the issuance of a writ of mandamus

to compel a public office or person responsible for requested public records to comply with the

legal obligations imposed by the Public Records Act, including providing copies of requested

records within a reasonable period of time.

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32. There is no legally valid excuse for the continued refusal of Respondents to provide the

public records requested pursuant to Public Records Requests nor to comply with the other legal

duties imposed upon them by the Public Records Act.

33. The public records sought pursuant to the Public Records Requests would allow

provide a public benefit by exposing to public view and scrutiny certain aspects of the operations

and management of the Perry Township Police Department.

34. The issuance of a writ of mandamus will serve the public interest and provide a public

benefit by forcing recalcitrant public offices and public officials to comply with the unambiguous

mandate of precedent relating to their duties under the Public Records Act.

35. The issuance of a writ of mandamus will serve the public interest and provide a public

benefit by encouraging and promoting compliance in the future by public offices and public

officials with the terms of the Public Records Act, as well as court decisions thereon.

36. The issuance of a writ of mandamus will serve the public interest and provide a public

benefit by ensuring that the Respondents and other public officials operate openly so that such

operations will be subject to public scrutiny.

WHEREFORE, Relator seeks the issuance of a Peremptory Writ of Mandamus or, in the

alternative, an Alternative Writ of Mandamus, commanding Respondents to comply with their

legal duties under the Public Records Act, including, without limitation, immediately providing to

Relator copies of all of the public records requested in the Public Records Requests, together with

an award of statutory damages, attorneys’ fees and costs in accordance with the Public Records

Act, as well as all other relief to which Relator may be entitled in law or in equity.

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Respectfully submitted,

/s/ Brian C. Shrive


Christopher P. Finney (0038998)
Brian C. Shrive (0088980)
FINNEY LAW FIRM, LLC
4270 Ivy Pointe Blvd., Suite 225
Cincinnati, OH 45245
(513) 943-6656
(513) 943-6669 (fax)
brian@finneylawfirm.com

Curt C. Hartman (0064242)


THE LAW FIRM OF CURT C. HARTMAN
7394 Ridgepoint Drive, Suite 8
Cincinnati, OH 45230
(513) 379-2923
hartmanlawfirm@fuse.net

Attorney for Relator BONNIE BERTELSON

PRAECIPE TO CLERK

Please serve the named Defendants/Respondents, by certified mail, return receipt


requested, at the above listed addresses. If service of process by certified mail is returned by the
postal authorities with an endorsement of “refused” or “unclaimed” and if the certificate of mailing
cane be deemed complete not less than five (5) days before any scheduled hearing, the undersigned
waives notice of the failure of service by the clerk and requests ordinary mail service in accordance
with Civil Rule 4.6(C) or (D) and Civil Rule 4.6(E).

/s/ Brian C. Shrive


Brian C. Shrive (0088980)

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March 11, 2019

Dear WALZ GROUP:

The following is in response to your request for proof of delivery on your item with the tracking number:
9314 8699 0430 0056 4186 48.

Item Details

Status: Delivered, Left with Individual


Status Date / Time: March 6, 2019, 12:19 p.m.
Location: BROOKVILLE, OH 45309
Postal Product: First-Class Mail®
Extra Services: Certified Mail™
Return Receipt Electronic
Shipment Details

Weight: 1.0oz
Destination Delivery Address

Street Address: 3025 JOHNSVILLE BROOKVILLE RD


City, State ZIP Code: BROOKVILLE, OH 45309-9309
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Thank you for selecting the United States Postal Service® for your mailing needs. If you require additional
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Sincerely,
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475 L'Enfant Plaza SW
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Information in this section provided by Walz Group, LLC.


March 11, 2019

Dear WALZ GROUP:

The following is in response to your request for proof of delivery on your item with the tracking number:
9314 8699 0430 0056 4185 94.

Item Details

Status: Delivered, Left with Individual


Status Date / Time: March 6, 2019, 12:19 p.m.
Location: BROOKVILLE, OH 45309
Postal Product: First-Class Mail®
Extra Services: Certified Mail™
Return Receipt Electronic
Shipment Details

Weight: 1.0oz
Destination Delivery Address

Street Address: 3025 JOHNSVILLE BROOKVILLE RD


City, State ZIP Code: BROOKVILLE, OH 45309-9309
Recipient Signature

Signature of Recipient:

Address of Recipient:

Note: Scanned image may reflect a different destination address due to Intended Recipient's delivery instructions on file.

Thank you for selecting the United States Postal Service® for your mailing needs. If you require additional
assistance, please contact your local Post Office™ or a Postal representative at 1-800-222-1811.

Sincerely,
United States Postal Service®
475 L'Enfant Plaza SW
Washington, D.C. 20260-0004

Information in this section provided by Walz Group, LLC.


March 11, 2019

Dear WALZ GROUP:

The following is in response to your request for proof of delivery on your item with the tracking number:
9314 8699 0430 0056 4183 72.

Item Details

Status: Delivered, Left with Individual


Status Date / Time: March 6, 2019, 12:19 p.m.
Location: BROOKVILLE, OH 45309
Postal Product: First-Class Mail®
Extra Services: Certified Mail™
Return Receipt Electronic
Shipment Details

Weight: 1.0oz
Destination Delivery Address

Street Address: 3025 JOHNSVILLE BROOKVILLE RD


City, State ZIP Code: BROOKVILLE, OH 45309-9309
Recipient Signature

Signature of Recipient:

Address of Recipient:

Note: Scanned image may reflect a different destination address due to Intended Recipient's delivery instructions on file.

Thank you for selecting the United States Postal Service® for your mailing needs. If you require additional
assistance, please contact your local Post Office™ or a Postal representative at 1-800-222-1811.

Sincerely,
United States Postal Service®
475 L'Enfant Plaza SW
Washington, D.C. 20260-0004

Information in this section provided by Walz Group, LLC.


March 11, 2019

Dear WALZ GROUP:

The following is in response to your request for proof of delivery on your item with the tracking number:
9314 8699 0430 0056 4187 54.

Item Details

Status: Delivered, Left with Individual


Status Date / Time: March 6, 2019, 12:19 p.m.
Location: BROOKVILLE, OH 45309
Postal Product: First-Class Mail®
Extra Services: Certified Mail™
Return Receipt Electronic
Shipment Details

Weight: 1.0oz
Destination Delivery Address

Street Address: 3025 JOHNSVILLE BROOKVILLE RD


City, State ZIP Code: BROOKVILLE, OH 45309-9309
Recipient Signature

Signature of Recipient:

Address of Recipient:

Note: Scanned image may reflect a different destination address due to Intended Recipient's delivery instructions on file.

Thank you for selecting the United States Postal Service® for your mailing needs. If you require additional
assistance, please contact your local Post Office™ or a Postal representative at 1-800-222-1811.

Sincerely,
United States Postal Service®
475 L'Enfant Plaza SW
Washington, D.C. 20260-0004

Information in this section provided by Walz Group, LLC.