Boutros v. MetroHealth Sys. Bd. of Trustees

2025 Ohio 3142

• Court: Ohio Court of Appeals
• Decided: September 4, 2025
• Docket: 114446
• Status: Published

Opinion

[Cite as Boutros v. MetroHealth Sys. Bd. of Trustees, 2025-Ohio-3142.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

AKRAM BOUTROS, M.D., :

Plaintiff-Appellant, : No. 114446 v. :

THE METROHEALTH SYSTEM : BOARD OF TRUSTEES, ET AL., : Defendants-Appellees.

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: September 4, 2025

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-22-971808

Appearances:

Matty, Henrikson & Greve LLC, Mark B. Marong and Shana A. Samson; Cohen Rosenthal & Kramer LLP, Jason R. Bristol, Joshua R. Cohen, and James B. Rosenthal, for appellant.

McCarthy, Lebit, Crystal & Liffman Co., L.P.A., Mark I. Wallach; Roetzel & Andress, LPA, William R. Hanna, and Lisa A. Mack, for appellees.

MICHAEL JOHN RYAN, J.:

Plaintiff-appellant Akram Boutros, M.D. (“Boutros”) appeals the trial court’s grant of summary judgment in favor of defendants-appellees MetroHealth

System’s Board of Trustees, et al. (“Board”). For the reasons that follow, we affirm.

The facts of this case are generally undisputed. Boutros was the

President and CEO of MetroHealth Hospitals from 2013 until November 21, 2022.

In October 2022, the Board initiated a formal investigation of concerns relating to

unauthorized compensation Boutros allegedly received. The investigation was

conducted by attorney John McCaffrey (“McCaffrey”) from Tucker Ellis LLP

(“Tucker Ellis”). The Board ultimately terminated Boutros for allegedly paying

himself nearly $2 million in unauthorized bonuses without the Board’s knowledge

and consent.

In the weeks following his termination, Boutros filed multiple lawsuits

against the Board and others in an effort to challenge its actions. On November 28,

2022, Boutros filed the complaint in the underlying case, alleging violations of

Ohio’s Open Meetings Act (“OMA”).1 He filed an amended complaint on December

15, 2022. In his amended complaint, Boutros alleged that the Board secretly

retained McCaffrey and Tucker Ellis to investigate him, allowed that investigation

and the report produced from the investigation to proceed without proper

authorization, and ultimately terminated him without public notice and

deliberation.

1 The OMA is often used interchangeably with the Sunshine Law and Sunshine Act.

Ohio’s Sunshine Law incorporates the OMA and Ohio’s Public Records Act (R.C. 149.43). The parties filed cross-motions for summary judgment. On October 7,

2024, the trial court granted the Board’s motion for summary judgment and denied

Boutros’s motion for summary judgment.

Assignments of Error; Noncompliance with Appellate Rules

Boutros filed a timely notice of appeal, raising two assignments of error

for review:

I. The trial court erred in granting summary judgment in favor of Appellees.

II. The trial court erred in denying summary judgment in favor of Appellant.

As an initial matter, Boutros fails to comply with the appellate rules

in his brief. App.R. 16(A)(4) provides that

the appellant shall include in its brief . . . [a]n argument containing the contentions of the appellant with respect to each assignment of error presented for review and the reasons in support of the contentions, with citations to the authorities, statutes, and parts of the record on which appellant relies.

App.R. 12(A)(2) provides that this court “may disregard an assignment

of error presented for review if the party raising it fails to . . . argue the assignment

separately in the brief, as required under App.R. 16(A).” Boutros improperly

combined his two assignments of error into one argument. Although we could

summarily affirm the trial court’s judgment based on inappropriate briefing, we

acknowledge that cases are best decided on their merits and will proceed to address

Boutros’s assignments of error, combining them for review. Standard of Review

Boutros claims that the trial court erred in granting summary judgment

in favor of the Board and in denying his motion for summary judgment. Boutros

argues that he presented clear and convincing evidence that the Board violated the

OMA by going into executive session to consider topics outside the scope of

R.C. 121.22; failing to follow proper procedure for entering executive session;

making improper considerations and findings at board meetings; failing to maintain

accurate minutes; improperly retaining counsel to investigate him; and improperly

establishing a “Special Investigation Committee.”

An appellate court reviews a trial court’s decision on a summary

judgment motion de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105

(1996). Under a de novo review, this court independently examines the evidence to

determine if, as a matter of law, no genuine issues exist for trial. Brewer v.

Cleveland Bd. of Edn., 122 Ohio App.3d 378, 383 (8th Dist. 1997), citing Dupler v.

Mansfield Journal, 64 Ohio St.2d 116 (1980).

Pursuant to Civ.R. 56(C), summary judgment is properly granted

when (1) there is no genuine issue as to any material fact; (2) the moving party is

entitled to judgment as a matter of law; and (3) reasonable minds can come to but

one conclusion, and that conclusion is adverse to the party against whom the motion

for summary judgment is made. Harless v. Willis Day Warehousing Co., 54 Ohio

St.2d 64, 66 (1978). Because the granting of summary judgment ends litigation,

courts should carefully award summary judgment only after resolving all doubts in favor of the nonmoving party and finding that “reasonable minds can reach only an

adverse conclusion” against the nonmoving party. Murphy v. Reynoldsburg, 65

Ohio St.3d 356, 358-359 (1992).

The burden of demonstrating that no genuine issue as to any material

fact exists falls upon the moving party. Once the moving party has met its burden,

it is the nonmoving party’s obligation to present evidence on any issue for which that

party bears the burden of production at trial. Scheel v. Rock Ohio Caesars

Cleveland, L.L.C., 2018-Ohio-3568, ¶ 26 (8th Dist.). The moving party is entitled to

summary judgment if the nonmoving party fails to establish the existence of an

element essential to that party’s case and on which that party will bear the burden

of proof at trial. Rock Ohio Caesars at id., citing Brandon/Wiant Co. v. Teamor,

125 Ohio App.3d 442 (8th Dist. 1998).

Open Meetings Act

The OMA, codified in R.C. 121.22, requires public bodies in Ohio to

conduct all deliberations on official business in meetings that are open to the public.

State ex rel. Hicks v. Clermont Cty. Bd. of Commrs., 2022-Ohio-4237, ¶ 1. The OMA

states that it “shall be liberally construed” to meet that end. Hicks at id., citing

R.C. 121.22. “However, no construction of the OMA, even a liberal one, changes the

default rule that a plaintiff alleging violations of the OMA bears the burden of

proving the violations.” Hicks at id.

“The presumption of regularity is related to the burden of proof,

because if the former attaches, then the burden of production remains on the plaintiff to overcome the presumption and prove that a violation occurred.” Hicks

at ¶ 22. “‘Under the “presumption of regularity,” and in the absence of evidence to

the contrary, courts will presume that public officers have properly performed their

duties and acted lawfully.’” Hicks at id., quoting Toledo v. Levin, 2008-Ohio-1119,

¶ 28.

Board Meetings

Boutros alleges that the Board violated the OMA by improperly going

into executive session during public meetings of the Board. The meetings Boutros

contests were held between November 28, 2020, and November 28, 2022, including

those leading up to Boutros’s termination and the selection of a new CEO.

Boutros alleges that the Board failed to produce evidence that it

complied with the OMA or that the presumption of regularity set forth in Hicks

applies in this case. But “the burden of proof, or at least the burden of persuasion,

[is] on the plaintiff . . . . Therefore, to receive relief, the plaintiff must prove a

violation of the OMA. There is no requirement for the public body to conversely

prove that no violation occurred.” Hicks at ¶ 11.

R.C. 121.22(G) provides that an executive session can only be initiated

“for the sole purpose of consideration” of certain matters. Boutros claims that the

Board violated R.C. 121.22(G) by entering executive session to discuss topics that

did not fall within the statute’s purview. Specifically, Boutros alleges that the

Board’s stated reasons for entering executive session, including “attorney client

privilege” and “personnel matters,” are not covered by R.C. 121.22(G). R.C. 121.22(G)(3) provides that a public body may go into executive

session for “[c]onferences with an attorney for the public body concerning disputes

involving the public body that are the subject of pending or imminent court action.”

The Board concedes that its meetings with McCaffrey did not fall under

R.C. 121.22(G)(3). Although a general “attorney-client privilege” is not one of the

enumerated bases for executive session, consultation by the Board with its legal

counsel, even if it occurs during a nonpublic session held during a public meeting,

does not per se violate the OMA. In Steingass Mechanical Contracting, Inc. v.

Warrensville Hts. Bd. of Edn., 2003-Ohio-28 (8th Dist.), this court found that board

members’ discussions with their attorney in executive session were not subject to

the Ohio’s Sunshine Law. In Steingass, the plaintiff argued that the board violated

R.C. 121.22(G) because it went into executive session to obtain legal advice not

related to any pending litigation. Id. at ¶ 47-49. “In order to show a violation of the

‘open meeting’ rule . . . either a resolution, rule[,] or formal action of some kind must

have been adopted by the public body at a meeting not open to the public.” Id. at

¶ 47. This court concluded that R.C. 121.22(G) had not been violated because the

discussions with the board attorney did not result in the adoption of any rule,

resolution, or the taking of formal action. Id. at ¶ 51.

“The statute is intended to apply to those situations where there has

been actual formal action taken; to wit, formal deliberations concerning the public

business.” Id. at ¶ 49. “Information-gathering and fact-finding are essential functions of any board, and that the gathering of facts and information for

ministerial purposes does not constitute a violation of the Sunshine Law.” Id.

Here, Boutros has not shown evidence that the Board promulgated

any rule, resolution, or formal action while in executive session or otherwise took

formal action related to Boutros when meeting with McCaffrey.

Boutros also argues that the Board improperly entered into executive

session to discuss “personnel matters.”2 R.C. 121.22(G)(1) allows certain personnel

matters to be discussed in executive session, including “the appointment,

employment, dismissal, discipline, promotion, demotion, or compensation of a

public employee or official, or the investigation of charges or complaints against a

public employee, official, licensee, or regulated individual.”

When the Board terminated Boutros in November 2022, the Board

went into executive session and identified the subject of that session as the

“appointment, employment, discipline and compensation of a public employee.”

The Board then voted on his termination in public session. When the Board hired

Boutros’s successor in September 2022, it did not go into executive session at all.

Thus, Boutros has not shown evidence of any formal Board action that resulted from

an alleged discussion of “personnel matters.” In his complaint, Boutros references

2 Boutros also alleges the same as to “real-estate matters”; however, he has not

shown that the matters that were covered are outside the purview of R.C. 121.22(G)(2), which covers real property transactions. Moreover, this claim was not raised in the trial court; therefore, it is waived. See Shaker Hts. ex rel. Friends of Horseshoe Lake v. Shaker Hts., 2024-Ohio-3007 (8th Dist.) (declining to review any claims, issues, or arguments not presented at the trial-court level). his termination and the Board’s hiring of a new CEO but has not shown that either

action resulted from discussion of matters not specifically authorized by statute.

Our review of the record shows that the Board cited one or more

statutorily permitted reasons to go into executive session at each meeting Boutros

challenged. Boutros has failed to present evidence to meet his burden of showing

that the Board discussed any improper subjects in executive session.

Next, Boutros claims that the Board failed to keep complete minutes

of the meetings or follow the proper procedure to enter executive session.

Boutros’s claims surrounding the minutes of the Board were not

raised in his complaint. He did not allege that the Board failed “to prepare, file, and

maintain full and accurate minutes” until his motion for summary judgment. The

Board cites McGinnis, Inc. v. Lawrence Economic Dev. Corp., 2003-Ohio-6552

(4th Dist.), to support its argument that a party cannot seek summary judgment on

claims not raised in the pleadings. In McGinnis, the appellant filed a motion for

summary judgment seeking injunctive relief under R.C. 121.22. However, the

appellant did not raise a violation of R.C. 121.22 in its complaint nor did the

appellant attempt to amend its complaint to add the pertinent claims. The appellate

court found that the appellant’s attempt to assert an alleged violation of R.C. 121.22

by summary-judgment motion, when the appellant did not raise the alleged

violation in its complaint, was impermissible. Id. at ¶ 22.

“Civ.R. 8(A) requires only that a pleading contain a short and plain

statement of the circumstances entitling the party to relief.” Illinois Controls v. Langham, 70 Ohio St.3d 512, 525 – 526 (1994). Although Boutros did not

specifically claim a violation of requirements surrounding minutes for meetings, he

did allege violations of R.C. 121.22(C). We find, however, that Boutros is unable to

show that the Board violated R.C. 121.22 by failing to keep complete minutes.

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.

In White v. Clinton Cty. Bd. of Commrs., 76 Ohio St.3d 416 (1996),

the Ohio Supreme Court determined that minutes of an executive session may be

limited to general subject matter and do not need to be kept with specificity as to

what happened in executive session. The Court explained:

When one considers the sensitive nature of the topics examined in executive sessions, it follows from this language that it is only the minutes of an executive session which may be properly limited to “the general subject matter of discussions.” The minutes of any other meeting of a public body must contain a more substantial treatment of the items discussed, and certainly should not be limited to a mere recounting of the body’s roll call votes.

Id. at 423.

The meeting minutes for the Board for the period from January 27,

2021, through November 21, 2022, recorded each specific reason the Board was

entering into executive session and that the Board unanimously voted to do so. This

is sufficient to meet R.C. 121.22(C)’s requirement that the “minutes need only reflect

the general subject matter of discussions in executive sessions.” “In other words, the only thing that the public body is required to record in its executive-session

minutes is the statutorily permitted reason for the executive session.” Hicks, 2022-

Ohio-4237, at ¶ 17.

Boutros claims that the presumption of regularity does not attach to

the case at bar because the Board regularly entered executive session without

providing a reason pursuant to R.C. 121.22. Boutros cites State ex rel. Ames v.

Portage Cty. Bd. of Commrs., 2024-Ohio-1852 (11th Dist.), to support his claim that

the presumption of regularity, as set forth in Hicks, 2022-Ohio-4237, does not

apply. In Ames, the Eleventh District Court of Appeals found that the presumption

of regularity did not attach to some of the plaintiff’s claims because it was apparent,

on its face, that the board entered executive session for reasons not permitted by

R.C. 121.22(G).

Ames is distinguishable because, here, Boutros has not provided

sufficient evidence that the Board improperly entered executive session for reasons

outside the scope of R.C. 121.22(G).

Considering the foregoing, Boutros is unable to overcome the

presumption of regularity that attaches to the Board’s conduct of its meetings.

Hiring of Outside Counsel

Boutros alleged that the Board’s retention of McCaffrey and Tucker

Ellis must be presumed to be invalid because the Board did not notice a meeting or

pass a resolution regarding the hiring. Boutros alleges that because McCaffrey and the firm were not “lawfully engaged to assist in or conduct any investigation into

Plaintiff’s compensation,” any action they took is “of no legal value.”

In Armatas v. Plain Twp., 2023-Ohio-204 (5th Dist.), the Fifth

District Court of Appeals affirmed the grant of summary judgment in favor of the

defendant township. The township, two of its trustees, and its zoning inspector filed

a motion to intervene in an action against the plaintiff, seeking to have the plaintiff

declared a vexatious litigator. The plaintiff argued that, because the meeting

minutes of the board “show absolutely no reference to the authorization of a

vexatious litigator action (or any other type of lawsuit) against [the plaintiff],” the

plaintiff had “fulfilled his burden of demonstrating the essential elements of his

claim.” Id. at ¶ 54. The trial court disagreed, finding that the plaintiff’s claim was

based upon an incorrect assumption that the board’s deliberation and a resolution

authorizing a vexatious litigator action were required before the motion to intervene

was filed, and, because there was no such resolution, the board must have engaged

in improper deliberations. Id. at ¶ 58. The court determined that the sole cause

before the court was whether there was a violation of the OMA; thus, the court would

not consider whether the plaintiff was correct in its claim that no deliberation had

occurred. Id.

Likewise, here, Boutros’s claim is premised on the incorrect

assumption that a resolution of the Board was required for the Board to engage

outside legal services. Because the Board never passed a resolution to authorize

hiring McCaffrey, Boutros claims that the trial court should have concluded that the Board deliberated on public business outside of a public meeting. The Board, in

response, argued that it was authorized to engage outside legal services under its

existing authority found in R.C. 339.06, without passing a resolution.3

As in Armatas, here the trial court’s function was to determine

whether the Board violated the OMA when it retained McCaffrey, not whether the

Board had the authority to retain him. Boutros has not provided sufficient evidence

to create a genuine issue of material fact that the Board violated the OMA when it

retained McCaffrey and Tucker Ellis.

Special Investigation Committee

Boutros alleged that the Board impermissibly created a “Special

Investigation Committee” to investigate Boutros and, because there was no

resolution passed by the Board to create this committee, it must be presumed that

the Board violated the OMA. Although the term “Special Investigation Committee”

appeared in McCaffrey and Tucker Ellis’s engagement agreement, there is no

evidence that the Board created this committee or violated the OMA. In deposition

testimony, Board members John Silvers and Inajo Chappell testified that the Board

did not establish a special investigation committee to investigate Boutros. Boutros

has not shown sufficient evidence to the contrary; therefore, he fails to show that the

OMA was violated in relation to this claim.

3 R.C. 339.06(J)(4) provides: “The board may hire, by contract or as salaried employees, . . . attorneys . . . and other professional advisors as it determines are necessary and desirable to assist in the management of the programs and operation of the county hospital. Such professional advisors may be paid from county hospital operating funds.” We find no genuine issue of material fact remains and the trial court

correctly granted summary judgment in favor of the Board and denied summary

judgment as to Boutros’s claims.

The assignments of error are overruled.

Judgment affirmed.

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

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to said 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.

MICHAEL JOHN RYAN, JUDGE

LISA B. FORBES, P.J., and WILLIAM A. KLATT, J.,* CONCUR

(*Sitting by assignment: William A. Klatt, J., retired, of the Tenth District Court of Appeals.) ever formed a special committee to investigate him.