[Cite as Landers v. Montgomery Cty. Veterans Serv. Comm., 2025-Ohio-4971.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
MARK E. LANDERS : : C.A. No. 30370 Appellant/Cross-Appellee : : Trial Court Case No. 2023 CV 00092 v. : : (Civil Appeal from Common Pleas MONTGOMERY COUNTY VETERANS : Court) SERVICE COMMISSION, ET AL. : : FINAL JUDGMENT ENTRY & Appellees/Cross-Appellant : OPINION
...........
Pursuant to the opinion of this court rendered on October 31, 2025, the judgment of
the trial court is reversed regarding back pay and affirmed in all other aspects. The case is
remanded to the Montgomery County Veterans Service Commission for further proceedings
consistent with the opinion.
Costs to be paid as follows: 50% by the Appellant and 50% by the Appellees.
Pursuant to Ohio App.R. 30(A), the clerk of the court of appeals shall immediately
serve notice of this judgment upon all parties and make a note in the docket of the service.
Additionally, pursuant to App.R. 27, the clerk of the court of appeals shall send a certified
copy of this judgment, which constitutes a mandate, to the clerk of the trial court and note
the service on the appellate docket.
For the court,
CHRISTOPHER B. EPLEY, PRESIDING JUDGE
LEWIS, J., and HUFFMAN, J., concur. OPINION MONTGOMERY C.A. No. 30370
MARK E. LANDERS, Pro Se Appellant/Cross-Appellee TODD M. AHEARN, Attorney for Appellee/Cross-Appellant
EPLEY, P.J.
{¶ 1} Plaintiff-Appellant/Cross-Appellee Mark E. Landers and Defendant-
Appellee/Cross-Appellant Montgomery County Veterans Service Commission (“VSC”) both
appeal from the judgment of the Montgomery County Court of Common Pleas which (1)
granted summary judgment to Landers on his Open Meetings Act (“OMA”) claim and
concluded that the termination of his employment was invalid and (2) granted summary
judgment to the VSC on Landers’ defamation claim. Landers argues that the trial court
should have awarded more damages for violations of the OMA and that it erred by granting
summary judgment in favor of the VSC on his defamation claim. The VSC, on the other
hand, argues that invalidating the termination of Landers’ employment due to alleged OMA
violations was improper, but, even if it were not, the trial court erred in awarding back pay
and post-judgment interest.
{¶ 2} For the reasons that follow, the trial court’s award of $200,780.76 in back pay
is overruled, but the judgment of the trial court is affirmed in all other respects.
I. Facts and Procedural History
{¶ 3} In the summer of 2018, Landers, an Army veteran and lawyer, was hired by the
VSC to be its executive director. He had previously served as a commissioner. Despite the
statutory mandate that the VSC executive director be an unclassified/at-will employee
serving at the pleasure of the commission, Landers crafted – and the commissioners signed
– an employment agreement. The agreement called for a three-year term which would
2 automatically be renewed each year for an additional year and would offer $110,000 in
salary, plus other benefits. Importantly, Landers drafted the agreement so that he could only
be terminated for committing “a material act of dishonesty.”
{¶ 4} The accounts of Landers’ first year as executive director are divergent.
According to Landers, he worked tirelessly to clean up a dysfunctional and corrupt office
culture, save money, and improve service to the veterans they served. He described his
managerial style as “get the job done,” and in his deposition, admitted that there were
employees who did not appreciate some of his policies, such as sending daily emails about
what was accomplished. Landers also described being the public face of the VSC and
testified that a media blitz resulted in a huge increase of claims. “Landers [speaking in the
third person] was going everywhere, on television, on radio, on local cable, etc., etc., plus
going to any library[.]” Deposition Tr. 141. He was a “constant presence on television, radio,
. . . and was the voice of [the VSC] in connecting veterans to the benefits they earned.”
Complaint at 4-5. Landers claims that he was referred to as the “Colonel” in the veteran
community and the VSC’s radio ads. Complaint at 5.
{¶ 5} While Landers may have considered himself a badly needed agent of change,
there were those at the VSC office who did not care for his methods. Stephen Ashley Webb,
a commissioner at the time, testified that one person expressed that dealing with Landers
was difficult and described his actions as “bullying.” Trial Tr. at 73. Another employee, Missy
Zimmer, whom Landers had known for years and whom he had months earlier hired in an
administrative role, sent an email to commissioner John Meeks expressing her concerns
about “the hostile work conditions [Landers] has created at our office.” Defendant’s
Deposition Exhibit 4; Plaintiff’s Trial Exhibit 8. The issues between Zimmer and Landers
worsened after she experienced health issues and ran out of “sick days” to use while she
3 recovered. She explained in the email that Landers was “very angry” that she had not
returned to work on time and that “he has no sympathy or compassion for others, which is
contrary to his public speakings [sic].” Defendant’s Deposition Exhibit 4; Plaintiff’s Trial
Exhibit 8; Deposition Tr. at 182-183. She concluded that while she loved her job, the hostile
environment made returning to work impossible.
{¶ 6} Prompted by the email from Zimmer, the commission initiated an investigation
into Landers and the work environment at the VSC office. The result of the inquiry was a
document titled “Information from Interviews” that was introduced at a commission meeting.
Defendant’s Deposition Exhibit 7. The document featured 86 bullet points of staff concerns
and examples of workplace hostility, including:
• “Uses staff meetings to berate staff, has made remarks that can be
racist.”
• “He bulldogs employees and calls them whiny.”
• “Mr. Landers micromanages all the staff.”
• “Mr. Landers demanded to see the personal phone of a staff member
so he could read texts/emails on an issue.”
• “Berated Missy in a staff meeting. Mr. Landers stated in front of the
entire staff that Missy was overpaid and that when she had her tumor
removed that she should ask to have her whole brain removed.”
• “He’s forceful, in your face, demanding that his issue be priority #1
and has no regard to the staff member’s workload.”
• “Mr. Landers shows anger towards any staff member that disagrees
with him. He calls them names in front of the other staff members.
This is on a daily basis.”
4 {¶ 7} After the investigation concluded, the commissioners held several board
meetings during which they entered into executive sessions “for personnel matters.” After
the executive session on August 12, 2019, the commissioners voted to place Landers on
paid administrative leave pending the conclusion of their investigation. August 12 VSC
Meeting Minutes; Defendant’s Deposition Exhibit 5.
{¶ 8} The commission held another meeting on August 21, 2019 where they again
entered executive session “for a personnel matter.” August 21 VSC Meeting Minutes;
Defendant’s Deposition Exhibit 6. Landers testified that commissioners asked questions
about certain employees and interactions because “some people felt the office was not as
positive as it could be.” Deposition Tr. at 215.
{¶ 9} The minutes of a September 12, 2019 meeting show that after going into
executive session “for a personnel matter,” Commissioner Webb moved to terminate
Landers’ employment “for cause, effective 30 days after he has received notice.”
Defendant’s Deposition Exhibit 8. Landers testified that he was not at this meeting and did
not receive notice of his termination until a later date when Commissioner Federico Rojas
came to his house with the termination letter. That account conflicts with the meeting minutes
which indicate Landers was in attendance.
{¶ 10} Landers filed a lawsuit related to his termination in the common pleas court in
2020 but dismissed it under Civ.R. 41(a) in January 2022. When he refiled a year later, the
new complaint listed six causes of action including: (1) Breach of Contract; (2) Defamation,
Libel, Slander, and Otherwise False Light; (3) Secret Meeting Violation of R.C. 121.22; (4)
Violation of R.C. 4122.02, et. al, Ohio Civil Rights Statute Title VII, U.S. Civil Rights Act,
Americans with Disabilities; (5) Procedural and Substantive Due Process Violation; (6)
5 Declaratory Judgment. The VSC, the individual commissioners, and Missy Zimmer were all
named as defendants.
{¶ 11} On February 3, 2023, the VSC filed a partial Civ.R. 12(B)(6) motion to dismiss,
asking the trial court to dismiss Counts One (breach of contract), Five (due process
violations), and Six (declaratory judgment). As to Count One, the commission argued that
the contract was unenforceable because under Ohio law, a veterans services commission
must employ its executive director on an “at will" basis. R.C. 5901.06 states that the
executive director is an unclassified employee, serves at the pleasure of the commission,
and may be removed at any time without cause. Relatedly, the VSC argued that Count Five
should be dismissed because as an unclassified employee, someone who could be
terminated at any time for any reason, Landers had no due process property right to his job.
The commission further argued that Count Six was substantially similar to Count One and
should be rejected accordingly. On May 17, the trial court granted the motion to dismiss
Counts One, Five, and Six.
{¶ 12} Landers filed a motion for partial summary judgment (Counts Three and Five)
on July 10, 2023. He argued that there were violations of the OMA and that as a “veteran
service officer” and the executive director of the VSC, he had a property interest in his job;
therefore, he was owed due process before his termination. The trial court denied his motion.
{¶ 13} The VSC filed its motion for summary judgment on the remaining Counts (Two,
Three, and Four) on November 21, 2023. The trial court granted summary judgment on the
defamation/libel/slander/false light claim (Two) and the civil rights claim (Four). As to
defamation, the court found that Landers was a “public official,” so he needed to prove that
the VSC and the individual defendants acted with “actual malice” when they made critical
statements about him. According to the trial court, they did not, and thus the claim failed as
6 a matter of law. As to the discrimination claim, the court reasoned that there was no evidence
that the decision to terminate Landers was based upon any “disability” rather than creating
a hostile work environment.
{¶ 14} Even though the trial court ruled in favor of the VSC on Counts Two and Four,
it did not grant the motion as to count Three. The court found that the commission meeting
minutes and the affidavit of Landers created a genuine issue of material fact regarding
compliance with the executive session requirements set forth in R.C. 121.22(G)(1). Decision
at 7. In other words, a trial was necessary to determine whether Landers was terminated in
compliance with the OMA.
{¶ 15} A bench trial was held on March 18, 2024. The court heard testimony from
Landers and Commissioners Rojas and Webb, and it considered ten exhibits. Two days
later, the court issued its decision finding that the VSC had violated the OMA eight times,
including at the meeting during which Landers was terminated. In accordance with the
statute, the court awarded Landers $1,500 in civil forfeitures representing three sets of
violations of the law. The trial court also determined that because the decision to terminate
Landers’ employment was done in violation of the OMA, it was a void action. Finally, the
court awarded two years of back pay, ending June 24, 2021. However, due to the lack of
testimony on the matter, neither non-salary benefits nor attorney fees were awarded. The
issue of whether the commissioners or Zimmer were individually liable was not settled.
{¶ 16} A few days later, Landers filed a “Motion to Correct Trial Decision and
Judgment Entry.” In it, he argued that because he was never properly terminated, he should
be reinstated as executive director of the VSC until terminated in accordance with the OMA.
He also demanded additional lost wages, vacation benefits, retirement benefits, and pre-
and post-judgment interest. The trial court overruled the motion the next day.
7 {¶ 17} In April 2024, both parties appealed, but, because the issues of damages and
liability of all named defendants with respect to Count Three of the complaint were still
unresolved, we remanded the matter to the trial court to resolve these issues and render a
final appealable order. After the trial court officially calculated damages, both parties
appealed again.
{¶ 18} In his appeal, Landers raises three assignments of error. First, he claims that
the “trial court erred when it limited . . . damages to three years and no benefits payable to
Ohio Public Employee Retirement System.” Second, he asserts that the trial court erred
when it failed to award attorney fees, pre-and-post-judgment interest, salary, and benefits.
Third, he argues that the trial court should not have denied his defamation claim. In its cross
appeal, the VSC argues that the trial court erred in invalidating Landers’ termination. The
VSC further asserts that even if the invalidation were proper, the court abused its discretion
by awarding back pay and post-judgment interest.
{¶ 19} We will address the assignments of error in a way that facilitates our analysis.
II. Defamation
{¶ 20} We begin with Landers’ third assignment of error in which he contends that the
trial court erred when it granted summary judgment to the VSC on his defamation claim.
Specifically, he argues that the trial court erred when it found that he was a “public official”
for purposes of its analysis.
Summary Judgment
{¶ 21} Pursuant to Civ.R. 56(C), a movant is entitled to summary judgment when that
party demonstrates that there is (1) no issue as to any material fact; (2) that the moving party
is entitled to judgment as a matter of law; and (3) that reasonable minds can come to only
8 one conclusion, and that conclusion is adverse to the non-moving party. Rhododendron
Holdings, LLC v. Harris, 2021-Ohio-147, ¶ 22 (2d Dist.).
{¶ 22} “The burden of showing that no genuine issue exists as to any material fact
falls upon the moving party requesting a summary judgment.” Harless v. Willis Day
Warehousing Co., Inc., 54 Ohio St.2d 64, 66 (1978). Once the moving party has satisfied its
burden of showing that there is no genuine issue of material fact, the burden shifts to the
nonmoving party to set forth specific facts showing a genuine issue for trial. Dresher v. Burt,
75 Ohio St.3d 280, 293 (1996). The nonmoving party cannot rely upon the mere allegations
or denials in the pleadings but must give specific facts showing that there is a genuine issue
for trial. Civ.R. 56(E). Accord Geloff v. R.C. Hemm’s Glass Shops, Inc., 2021-Ohio-394, ¶
14 (2d Dist.). When the standard is met, summary judgment must be awarded as a matter
of law.
{¶ 23} We review a trial court’s ruling on a summary judgment motion de novo.
Martcheva v. Dayton Bd. of Edn., 2021-Ohio-3524, ¶ 35 (2d Dist.).
Defamation, Libel, and Slander
{¶ 24} “Defamation is defined as a false publication which injures a person’s
reputation.” Dale v. Ohio Civ. Serv. Employees Assn., 57 Ohio St.3d 112, 117 (1991). It is a
broad term that encompasses both libel (written or printed defamatory statements) and
slander (spoken defamatory statements). Boyd v. Archdiocese of Cincinnati, 2015-Ohio-
1394, ¶ 35 (2d Dist.). “To prevail on a claim of defamation, the evidence must establish (1)
a false and defamatory statement concerning the plaintiff; (2) publication of the statement;
(3) fault; and (4) harm.” Wilson v. Wilson, 2007-Ohio-178, ¶ 12 (2d Dist.).
{¶ 25} The degree of fault needed to be successful on a defamation claim depends,
to some extent, on the plaintiff’s status – whether he or she is a public or private
9 figure/official. “A person properly classified as a public official or a public figure may recover
for defamation only on clear and convincing evidence that the defendant acted with actual
malice – that is, with knowledge that the defamatory statement was false or with reckless
disregard for whether it was false or not.” Anderson v. WBNS-TV, Inc., 2024-Ohio-4880, ¶
30 (10th Dist.).
{¶ 26} If a plaintiff establishes a prima facie case, the defendant may then invoke a
conditional or qualified privilege. Jackson v. Columbus, 2008-Ohio-1041, ¶ 9. A defendant
demonstrates a qualified privilege by showing that “(1) he acted in good faith; (2) there was
an interest to be upheld; (3) the statement was limited in its scope to the purpose of
upholding that interest; (4) the occasion was proper; and (5) the publication was made in a
proper manner and only to proper parties.” Mosley v. Evans, 90 Ohio App.3d 633, 636 (11th
Dist.1993); Janiszewski v. Belmont Career Ctr., 2017-Ohio-855, ¶ 85 (7th Dist.). A qualified
privilege may be defeated only by clear and convincing evidence of actual malice from the
defendant. Jacobs v. Frank, 60 Ohio St.3d 111, 114-15 (1991).
{¶ 27} Landers argues there were two sets of allegedly defamatory statements. The
first is the email sent to Commissioner Meeks from Missy Zimmer alleging that Landers had
created a hostile work environment. The second is the VSC’s responses to a questionnaire
from the Ohio Department of Job and Family Services after Landers applied for
unemployment benefits. His argument on appeal revolves solely around the question of
whether he was a public official when the statements were made. We do not need to address
this issue, however, because we conclude that these statements were covered by a qualified
privilege.
{¶ 28} We begin with the email from Zimmer to Commissioner Meeks. Zimmer had
suffered a series of health problems, the worst of which was a brain tumor. As she was
10 approaching her return to work, she sent an email message to one of the commissioners
expressing her concern about returning to work under the conditions Landers had created.
In it, Zimmer accused Landers of being “very angry” that she had not returned to work on
time, that “he [had] no sympathy or compassion to others,” and that she had “been so
stressed by him over the last seven months, let alone the inferior name calling, not only at
me but to our staff as well.” Deposition Tr. at 177-192; Deposition Ex. 4. She stressed that
she had tried to deal with the situation on her own, but her “health [had] become a major
factor.”
{¶ 29} We find the elements of a qualified privilege are met with Zimmer’s email. She
sent an email with the concerns she had about the workplace to a commissioner in hopes
that she could obtain some resolution. The interest was simply to ensure the VSC was a
safe environment, and the scope of the email was limited to only that. Based on the record,
there is no reason to believe that Zimmer did anything but act in good faith. Zimmer’s email
to Commissioner Meeks was not defamatory.
{¶ 30} The same can be said for the commission’s interaction with the Ohio
Department of Job and Family Services. Upon termination, Landers filed for unemployment
benefits from the Ohio Department of Job and Family Services. In response, the agency
sent a standard questionnaire (“Request to Employer for Separation Information”) to the
VSC to complete. While Landers does not point to any specific response as being violative,
there were several questions that elicited answers from the commission that included
references to him being terminated due to complaints of a hostile work environment and for
engaging in a “material act of dishonesty.” Deposition Ex. 9. The answers given by the VSC
were directed solely to the Ohio Department of Job and Family Services Office of
Unemployment Insurance Operations and were limited to responses to specific questions
11 regarding Landers’ termination. The information was only transmitted at all because Landers
filed for unemployment benefits.
{¶ 31} These types of answers should be protected so that employers can truthfully
respond to questions posed by administrative agencies without fear of being sued to
determine who qualifies for benefits. Accordingly, the VSC’s answers to the questionnaire
are protected by a qualified privilege. See also Wrenn v. Ohio Dept. of Mental Health and
Mental Retardation, 16 Ohio App.3d 160, 162 (10th Dist. 1984) (comment on the reasons
for discharge of an employee is privileged where requested by the unemployment
compensation office for evaluation of an application).
{¶ 32} Because we found that a qualified privilege attached to the VSC’s answers,
Landers must demonstrate that the commission acted with actual malice to be successful
on his claim. Landers failed to address this issue, and we can find no evidence that the VSC
knew the statements were false. The answers seem to be closely tethered to the extensive
record in this case.
{¶ 33} Because a qualified privilege attached to the email from Zimmer to
Commissioner Meeks, as well as to the answers on the questionnaire from the state
unemployment office, we must conclude, as the trial court did, that summary judgment in
favor of the VSC as to defamation was proper. Having concluded so, it is unnecessary to
discuss whether Landers was a public official. His third assignment of error is overruled.
III. Open Meetings Act
{¶ 34} Landers’ first assignment of error and the VSC’s sole assignment of error on
cross appeal center on the Open Meetings Act, R.C. 121.22. Landers argues that because
he was terminated in violation of R.C. 121.22(G), he has yet to be properly terminated and
is entitled to reinstatement with full back pay and benefits (the trial court awarded him
12 approximately $200,000 in back pay based on his purported 3-year contract, but no
benefits). He calls the trial court’s decision to award him only $200,000 “arbitrary and
capricious,” and claims that it is unsupported by facts or law. Appellant’s Brief at 10.
{¶ 35} The VSC contends that the trial court erred by invalidating Landers’ dismissal
based on a “technical violation” of the OMA. It also argues in the alternative – that even if
the invalidation of the dismissal were proper, the court abused its discretion in awarding
back pay and post-judgment interest.
Open Meetings Act
{¶ 36} The Open Meetings Act (sometimes referred to as the “Sunshine Law”),
codified in R.C. 121.22, mandates that public bodies conduct official actions and
deliberations in meetings accessible to the public. The statute is designed to promote
transparency and accountability in government operations by requiring public access to
decision making processes. Tipton v. Mad River Local Bd. of Ed, 2023-Ohio-3733, ¶ 15 (2d
Dist.); R.C. 121.22 generally.
{¶ 37} R.C. 121.22(C) requires the preparation, filing, and maintenance of a public
body’s minutes, and R.C. 149.43, the Public Records Act, requires that the public have
access to the minutes upon request. Read together, the public body has a duty to prepare,
file, and maintain full and accurate minutes of each meeting, and the “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 Commrs.,
76 Ohio St.3d 416 (1996), syllabus.
{¶ 38} While the law’s purpose is to expose the general public to the machinations of
boards, councils, and commissions, it does not mandate that all discussions of those bodies
be in the open. According to R.C. 121.22(G), members of a public body may hold an
13 executive session to “consider 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,” unless that person requests a public hearing. If an executive session is held, the
motion and vote to hold the session “shall state which one or more of the approved purposes
listed in division (G)(1) . . . are the purposes for which the executive session is to be held[.]”
R.C. 121(G)(1).
{¶ 39} “Any ‘resolution, rule, or formal action’ by a public body is invalid if it fails to
comport with the OMA.” Tipton at ¶ 15, quoting R.C. 121.22(H). Unless the deliberations
were for a purpose specifically authorized in R.C. 121.22(G), the resulting action is void.
{¶ 40} Any person may bring an action to enforce the OMA in the court of common
pleas, but it must be filed within two years of the date of the alleged violation or threatened
violation. The party seeking the injunction has the burden of proof by clear and convincing
evidence. Keystone Commt. v. Switzerland of Ohio Sch. Dist. Bd. of Edn., 2016-Ohio-4663,
¶ 26 (7th Dist.). Upon proof of a violation or threatened violation, “the common pleas court
shall issue an injunction to compel the members of the public body to comply with [the
statute’s] provisions.” R.C. 121.22(I)(1). If an injunction is issued, the court shall order the
public body to pay a civil forfeiture of five hundred dollars to the party that sought the
injunction, as well as all court costs, and (subject to reduction) reasonable attorney fees.
R.C. 121.22(I)(2)(a).
{¶ 41} Our analysis must begin with whether the VSC violated the OMA, and if so, to
what degree.
{¶ 42} While the record does not contain any transcripts of the commission meetings
in question, it does contain the minutes of at least eight meetings in which it is recorded that
14 the commission entered into executive session “for a personnel matter.” That includes the
August 12, 2019 meeting at which the commission returned from executive session to place
Landers on paid administrative leave and the September 12, 2019 meeting at which they
returned to open session and voted to terminate Landers “for cause, effective 30 days after
he [had] received notice.”
{¶ 43} It is clear that entering into executive session “for a personnel matter” does not
comply with R.C. 121.22(G), which lists specific reasons needed to enter executive sessions
including to “consider 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.” We
conclude, as the trial court did, that by entering into executive session by using non-statutory
language, the VSC violated the OMA. See also State ex rel. Long v. Cardington Village
Council, 92 Ohio St.3d 54, 59 (2001) (By using a general term like “personnel” instead of
one of the specified statutory purposes, respondents violated R.C. 121.22(G)(1)).
{¶ 44} Nevertheless, the VSC argues that these were only “technical violations,” and
Landers’ termination should stand. This theory seems to come from Doran v. Northmont Bd.
of Edn., 147 Ohio App.3d 268 (2d. Dist. 2002). In Doran, the school board failed to adopt a
formal public notice rule, an OMA violation. However, the actions of the board were not
invalidated because the public, including Doran, had received sufficient notice of the
meeting. Pursuant to R.C. 121.22(H), “[a] resolution, rule, or formal action adopted in an
open meeting that results from deliberations in a meeting not open to the public is invalid
unless the deliberations were for a purpose specifically authorized in division (G) or (J) of
this section and conducted at an executive session held in compliance with this section.” We
15 reasoned that the purpose of R.C. 121.22(H) was to invalidate official actions only when the
lack of notice prejudices the general public’s ability to participate in a meeting.
{¶ 45} Since Doran, however, the legal landscape has changed. The Ohio Supreme
Court has held that irreparable harm and prejudice are conclusively presumed with proof of
an OMA violation, thus invalidating any action adopted afterwards. State ex rel. Bates v.
Smith, 2016-Ohio-5449, ¶ 16-17; Keystone, 2016-Ohio-4663, ¶ 38; State ex rel. Mohr v.
Colerain Twp., 2022-Ohio-1109, ¶ 25 (1st Dist.); State ex rel. Jones v. Bd. of Edn. of Dayton
Pub. Schools, 2020-Ohio-4931, ¶ 10 (“R.C. 121.22(H) requires invalidation of actions taken
at meetings that violate the Open Meetings Act.”). Based on the Ohio Supreme Court’s
position and the plain language of R.C. 121.22(H), we find, as the trial court did, that entering
into executive session “for a personnel matter” violated the OMA, and thus invalidated
Landers’ termination.
Damages and Remedies
{¶ 46} Having found violations of the OMA, we must now determine the damages
available to Landers.
Injunctive Relief and Monetary Damages
{¶ 47} In addition to the violation at the meeting during which Landers was
purportedly fired, the trial court found seven other violations of the OMA based on
deficiencies in the minutes. Several of the violations included (1) failure to regularly and
completely list attendees at the meetings; (2) failure to recite (except for one occasion) that
there was a vote on the approval of minutes of prior meetings; (3) complete lack of any
substantive details about business items discussed and decided which would explain the
reasons for the decisions; and (4) lack of accuracy. Decision and Entry at 6. It held that “the
minutes [were] mere conclusory recitals of the roll call votes concerning vaguely defined
16 subject matters. Such brevity is non-complaint with Ohio law.” Id. at 7. While the trial court
found eight separate violations, Landers is not necessarily entitled to the statutory $500
forfeiture award for each one. In accordance with Maddox v. Greene Cty. Children Servs.
Bd. of Dirs., 2014-Ohio-2312 (2d Dist.), the trial court separated the eight violations into
three categories and awarded a total of $1,500 in civil forfeitures. Neither party seems to
challenge this result, and based on the record, we cannot say the trial court erred in reaching
this outcome.
{¶ 48} Where the parties differ is in their arguments relative to the trial court’s
decisions on reinstatement and back pay. We will begin with our analysis of reinstatement.
{¶ 49} Landers argues he should be reinstated because his termination was in
violation of the OMA and was thus invalid. R.C. 121.22(H). He further points out that many
years later he has still not been validly fired. While we agree that his termination was invalid,
reinstatement is not an available remedy. This conclusion comes from the plain language of
the statute.
{¶ 50} According to R.C. 121.22(I)(1), “Upon proof of a violation or threatened
violation of this section in an action brought by any person, the court of common pleas shall
issue an injunction to compel the members of the public body to comply with its provisions.”
If the court issues the injunction, it “shall order the public body that it enjoins to pay a civil
forfeiture of five hundred dollars to the party that sought the injunction and shall award to
that party all court costs and, subject to reduction as described in division (I)(2) of this
section, reasonable attorney’s fees.” R.C. 121.22(I)(2)(a). The statute does not authorize
reinstatement or other employment-related remedies, and this underscores the general
assembly’s intent to prioritize compliance with the statute’s transparency requirements over
17 other forms of relief. Had the legislature intended to give employment-related relief in
addition to the specified injunctions and forfeitures, it could have done so.
{¶ 51} Landers urges us to conclude that the trial court erred in not reinstating him,
following the precedent he believes was set in Maddox, 2014-Ohio-2312 (2d Dist.). The
Maddox court, however, did not order the plaintiff’s employment reinstated but instead left
back pay in place from the time she was invalidly terminated until the time her former position
was eliminated due to the merger of two public offices.
{¶ 52} Because R.C. 121.22 does not contemplate reinstatement as a remedy for a
violation of the OMA, we cannot say the trial court erred by not ordering Landers’
reinstatement as executive director of the VSC.
{¶ 53} Landers also asserts that the trial court erred in awarding him only
$200,780.76 in back pay. The court found Landers should be compensated for lost wages
from October 25, 2019 (the date of his wrongful termination) through June 24, 2021 (the
termination date of his three-year employment agreement), a span of 86 weeks. It is his
contention that such an outcome is unsupported by facts or law and is arbitrary and
capricious. Appellant’s Brief at 10. Landers argues that he should be compensated from his
purported termination date until he is fired in accordance with the OMA. Since that has yet
to happen, he argues that he should continue to receive back pay. Appellant’s Brief at 11.
While we agree that the trial court erred in awarding Landers more than $200,000 in back
pay, we do so not because we think it is not enough, but because that relief is unavailable
under the statute.
{¶ 54} The OMA has a very specific purpose – to ensure that public bodies, like the
VSC, deliberate and take actions in the open to promote transparency and accountability.
As the Seventh District has said, “The deliberative process leading up to the action must be
18 transparent to the public. This process ensures that a public body remains fully accountable
to the public which it serves.” Keystone at ¶ 39. Likewise, the OMA has specific remedies –
injunctive relief, civil forfeiture of $500 per violation, court costs, and attorney’s fees. All the
remedies are focused on the public body to ensure it complies with the transparency and
accountability goals of the act. Awarding employment focused remedies like back pay may
benefit Landers, but it does not further the purposes of the OMA and was not prescribed by
the legislature. The type of relief Landers seeks is more in-line with causes of action like
breach of contract, which we would note was rejected by the trial court and not appealed
here.
{¶ 55} Even though this outcome is in harmony with both the plain language of and
the policy behind R.C. 121.22, Landers again directs our attention to Maddox, 2014-Ohio-
2312 (2d Dist.). There, the former executive director of the Greene County Board of Children
Services was placed on leave on April 26, 2012 after an executive session “for a personnel
matter.” Months later she was fired. After filing suit for violations of the OMA, the trial court
held that the April 26 executive session lacked the specificity required by the OMA and that
Maddox’s placement on administrative leave was invalid. It granted her injunctive relief and
compensation from April 26 until June 26 when the board formally terminated her. The court
also awarded reasonable attorney fees and a $500 statutory civil forfeiture. It later found
additional violations of the OMA and concluded that Maddox’s termination was invalid.
{¶ 56} The Board of Children Services appealed, raising, among other things, that
the trial court erred in penalizing it for not reciting the precise statutory language before going
into executive session. We found that R.C. 121.22(G) was violated by using a general term
like “personnel” before going into executive session instead of one or more of the specified
statutory purposes. “[A] non-specific reference to ‘personnel matters’ or ‘personnel issues’
19 does not satisfy R.C. 121.22(G)” Maddox at ¶ 21. Because Maddox was terminated after
improper deliberations, we found her termination was invalid and that before she could be
fired, the board was required to re-deliberate in compliance with R.C. 121.22(G). Maddox at
¶ 36-37.
{¶ 57} As to the issue of back pay, the Board of Children Services also argued that
the trial court erred in finding liability for multiple forfeitures, attorney fees, and Maddox’s
back pay from June 26, 2012, to November 20, 2012. While our Opinion spent a great deal
of time addressing the number of civil forfeitures and the amount of attorney fees, and a few
sentences deciding when back pay should cease, we did not address – at all – the propriety
of the back pay award. It is unclear whether that issue was even addressed by the parties
or if it was simply assumed that back pay was an appropriate remedy.
{¶ 58} Based on the lack of discussion about the propriety of the back pay issue in
Maddox, we do not see the case as an endorsement of back pay as a proper remedy or
damages for violations of the OMA. To the extent that Opinion is supportive of back pay as
a remedy, we disagree and would overrule that portion. There is simply nothing in the statute
or beyond that supports such an outcome. Landers is not entitled to back pay. The judgment
of the trial court is reversed as to back pay.
{¶ 59} Having found no basis in the statute for reinstatement or back pay, we similarly
must reject Landers’ argument that he is entitled to benefits. R.C. 121.22 provides for
specific remedies for violations of the act, and the recoupment of lost benefits is not one of
them.
{¶ 60} Based on the foregoing, we must overrule Landers’ first assignment of error in
which he argues that the trial court erred when it limited his damages to three years and no
benefits payable to OPERS. The trial court erred in granting Landers more than $200,000
20 in back pay because that relief is unavailable under the OMA. The trial court did not,
however, err by refusing to grant benefits.
{¶ 61} The VSC’s assignment of error is sustained in part and overruled in part. It is
overruled as to the argument that the OMA violations were “technical” in nature and would
not affect Landers’ termination. As to the contention that the court erred in awarding back
pay, the assignment of error is sustained.
IV. Attorney Fees and Interest
{¶ 62} Landers’ second assignment of error argues that the trial court erred when it
did not award attorney fees, pre-judgment and post-judgment interest, salary, and benefits
from October 12, 2019 until he is terminated in compliance with R.C. 121.22. We previously
concluded that Landers was not entitled to back pay and benefits because those remedies
are not contemplated by the statute.
{¶ 63} Landers contends that he should receive attorney fees. This argument stems
from R.C. 121.22(I)(2)(a), which states that if a court of common pleas issues an injunction,
the court shall order the public body to pay a civil forfeiture of five hundred dollars to the
party that sought the injunction and “shall award to that party all court costs and . . .
reasonable attorney fees.” (Emphasis added.)
{¶ 64} Ohio courts have consistently held that pro se litigants, including licensed
attorneys representing themselves, are not entitled to attorney fees. See State ex rel.
Thomas v. Ohio State Univ., 71 Ohio St.3d 245, 251 (1994) (concluding that an attorney
acting pro se could not receive attorney fees under the Public Records Act (R.C. 149.43(C));
Specht v. Finnegan, 2002-Ohio-4660, ¶ 44 (6th Dist.); Horenstein, Nicholson & Blumenthal,
L.P.A. v. Hilgeman, 2021-Ohio-3019, ¶ 220-221 (2d Dist.). This is because pro se litigants
do not incur attorney fees as there is no attorney-client relationship. The Federal Circuit
21 Court of Appeals focused on the fact that “the word ‘attorney’ connotes an agency
relationship between two parties (client and attorney), such that fees a lawyer might charge
himself are not ‘attorney fees.’” Horenstein, Nicholson & Blumenthal citing Pickholtz v.
Rainbow Technologies, Inc., 284 F.3d 1365, 1375 (Fed. Cir. 2002). Landers is not entitled
to attorney fees.
{¶ 65} Finally, Landers asserts that the court erred by not awarding him pre- and post-
judgment interest. As an initial matter, R.C. 121.22 does not provide for the award of pre-
judgment interest. Pre-judgment interest is generally governed by R.C. 1343.03(A), which
allows for such interest in cases involving money judgments arising from tortious conduct,
contracts, and other transactions. The $1,500 award in this case is not from tortious conduct
or contracts, and thus, the only way R.C. 1343.03 would apply is if the money judgment
could be categorized as “other transactions.” While that term is not defined in the statute,
and Landers cites no authority which would elucidate its meaning, the term “transaction” is
defined as the following: (1) “The act or an instance of conducting business or other dealings;
esp., the formation, performance, or discharge of a contract”; (2) “Something performed or
carried out; a business agreement or exchange”; (3) “Any activity involving two or more
persons”; and (4) “An agreement that is intended by the parties to prevent or end a dispute
and in which they make reciprocal concessions.” Black’s Law Dictionary (12th ed. 2024).
Based on that definition, pre-judgment interest does not apply. Post-judgment interest is not
something the OMA contemplates, either. We, therefore, reach the same conclusion – post-
judgment interest is not available to Landers.
{¶ 66} The trial court did not err when it failed to award attorney fees, pre-judgment
and post-judgment interest, salary, and benefits. Landers’ second assignment of error is
overruled.
22 V. Conclusion
{¶ 67} Because R.C. 121.22 does not contemplate back pay for violations of the
statute, the trial court’s judgment of $200,780.76 in favor of Landers is reversed. In all other
respects, the judgment of the trial court is affirmed. However, the case is remanded to the
VSC to re-deliberate and terminate Landers in compliance with the OMA.
.............
LEWIS, J., and HUFFMAN, J., concur.