[Cite as State ex rel. Hutch v. Village of Bolivar, 2018-Ohio-3460.]
COURT OF APPEALS TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO EX REL., : JUDGES: IRVIN W. HUTH : Hon. Patricia A. Delaney, P.J. : Hon. Craig R. Baldwin, J. Relator-Appellant : Hon. Earle E. Wise, Jr., J. : -vs- : : VILLAGE OF BOLIVAR : Case No. 2018 AP 03 0013 : Respondent-Appellee : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 2016 CV 05 0320
JUDGMENT: Affirmed
DATE OF JUDGMENT: August 27, 2018
APPEARANCES:
For Relator-Appellant For Respondent-Appellee
MICHELA HUTH JOHN T.McLANDRICH P. O. Box 17 FRANK H. SCIALDONE Bolivar, OH 44612 100 Franklin's Row 34305 Solon Road Cleveland, OH 44139 Tuscarawas County, Case No. 2018 AP 03 0013 2
Wise, Earle, J.
{¶ 1} Relator-appellant Irvin W. Huth appeals the judgment of the Tuscarawas
County Court of Common Pleas judgment, after a bench trial, in favor of respondent-
appellee Village of Bolivar.
FACTS AND PROCEDURAL HISTORY
{¶ 2} During the time relevant to this matter, the Village of Bolivar Village Council,
a public body, was comprised of Lisa Cochran, Robert Lloyd, Craig Slutz, Mary Vincent,
Andrew Marburger, and Timothy Lang (Village Council). The Village of Bolivar is an Ohio
municipal corporation subject to the Ohio Open Meetings Act (OMA).
{¶ 3} In the spring of 2014, Lake Region Development Co., Ltd. offered to settle
litigation it had pending with the Village of Bolivar. A proposed settlement was drafted
between the parties, and became the subject of Ordinance No. O-94-2014.
{¶ 4} On May 18, 2014 Village Council published a legal notice in the Times
Reporter, a local newspaper, which stated:
The Village Council for the Village of Bolivar will hold a special
session of Council on May 19, 2014 at 6:30 p.m. The purpose of this
meeting will be for consideration of a settlement offer in the case of
Lake Region Development Co., Ltd. v. Village of Bolivar. Council will
discuss this pending litigation matter in executive session, but will
take action in the public portion of the meeting. This meeting will be
held in the Bolivar Village Hall at 109 N. Canal St., Bolivar, Ohio. Tuscarawas County, Case No. 2018 AP 03 0013 3
{¶ 5} The meeting took place as scheduled and was called to order by Rebecca
Hubble, the mayor of Bolivar. Hubble stated Village Council would go to executive
session. Appellant asked Hubble if the public would be permitted to speak after executive
session. Hubble advised that the general consensus was no, but that she would let council
make that decision after executive session. Appellant's attorney Michela Huth also
attended the meeting, and asked Village Council what it was going to discuss during
executive session. Jillian Daisher, an attorney for the council advised council would be
discussing the pending litigation. No Village Council member, nor the mayor addressed
the question. Despite being advised Council would not be taking any further questions,
appellant's attorney and appellant continued to interrupt.
{¶ 6} Council member Slutz moved to go into executive session and was again
interrupted by appellant's attorney. Slutz did not state the purpose of the executive
session. Council member Lloyd seconded the motion as appellant's attorney continued
to speak over the Council Members. In a roll call vote all members voted yes to go into
executive session. All members of the public, with the exception of Bolivar Village
Council's two attorneys, Daisher and Tami Hannon, left the room.
{¶ 7} Following executive session, after the public reentered the room, Mayor
Hubble announced "Public Speaks" would be allowed. Attorney Hannon then described
the settlement agreement followed by questions and comments from the public, including
appellant.
{¶ 8} At the close of public discussion of the settlement, Council Member Slutz
moved to suspend the rules and pass Ordinance No. O-94-2014 as an emergency.
Council person Mary Vincent seconded the motion to suspend the rules. Slutz then made Tuscarawas County, Case No. 2018 AP 03 0013 4
a motion to pass the ordinance that night and Lang seconded the motion. In a roll call
vote, the ordinance passed by a vote of 5-1.
{¶ 9} On May 18, 2016, appellant filed a Verified Complaint in Mandamus and for
Injunction which set forth six causes of action, alleging that Village Council had violated
the OMA, specifically, R.C. 121.22(A), (B), (C), (G), and (H). Appellant's complaint alleged
Village Council had procedurally violated the OMA as to whether the public would be
permitted to speak, and the manner in which it went to executive session. Appellant
attached to his complaint a video he had taken of the May 19, 2014 special meeting which
was taken before Village Council went into executive session.
{¶ 10} A bench trial was held on October 17, 2017. The parties stipulated to the
admission of all of appellant and appellee's exhibits, with the exception of appellant's
exhibits 2a and 2b, which the trial court excluded. Exhibit 2a was a copy of police report,
and 2b was a signed statement from Councilperson Lisa Cochran, which was attached to
the police report. The statement detailed activities taking place in the executive session
while the Village Council discussed the proposed settlement with its attorneys.
{¶ 11} The parties submitted trial briefs. Thereafter, on March 6, 2018, the trial
court entered judgment in favor of appellee, dismissing each count of appellant's
complaint.
{¶ 12} Appellant filed an appeal and the matter is now before this court for
consideration.
I
{¶ 13} "THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT
CONCLUDED 'ALL PORTIONS OF EXHIBITS 2A AND 2B THAT CONTAIN Tuscarawas County, Case No. 2018 AP 03 0013 5
STATEMENTS PROTECTED BY THE EXECUTIVE SESSION PRIVILEGE AND THE
ATTORNEY-CLIENT PRIVILEGE, INCLUDING LISA COCHRAN’S STATEMENTS
REGARDING WHAT HAPPENED DURING THE EXECUTIVE SESSION, SHALL NOT
BE ADMITTED AS EVIDENCE IN THIS MATTER'."
II
{¶ 14} "THE TRIAL COURT ERRED AND ABUSED IT DISCRETION, WHEN IT
DISMISSED WITH PREJUDICE COUNT ONE OF RELATOR’S COMPLAINT, AND
FOUND THAT BOLIVAR DID NOT VIOLATE R.C. 121.22(G) BECAUSE '[W]HILE THE
REQUIRED PURPOSE OF THE EXECUTIVE SESSION WAS NOT STATED BY A
VILLAGE COUNCIL MEMBER AS PART OF THE MOTION ITSELF, OR THE VOTE
ITSELF, THE STATED PURPOSE OF THE EXECUTIVE SESSION WAS STATED
IMMEDIATELY PRIOR TO THE MOTION AND VOTE TO ENTER EXECUTIVE
SESSION. ADDITIONALLY, THE NOTICE FOR THE SPECIAL MEETING
SPECIFICALLY STATED THAT THE PURPOSE OF THE SPECIAL MEETING AND
EXECUTIVE SESSION WAS TO DISCUSS PENDING LITIGATION. AS SUCH, THE
COURT CONCLUDES THAT THE PUBLIC WAS WELL INFORMED THAT THE
PURPOSE OF THE EXECUTIVE SESSION WAS TO CONSIDER THE LAKE REGION
DEVELOPMENT CO. LTD. SETTLEMENT WITH THE VILLAGE OF BOLIVAR'."
III
{¶ 15} "THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION, WHEN IT
DISMISSED WITH PREJUDICE COUNT TWO OF RELATOR’S COMPLAINT AND
FOUND '[T]HE LACK OF PUBLIC DELIBERATION AND THE ALLEGED EXECUTIVE
SESSION DISCUSSION REGARDING PERMITTING PUBLIC SPEAKS IS NOT AN Tuscarawas County, Case No. 2018 AP 03 0013 6
OPEN MEETING ACTION VIOLATION AS IT DOES NOT CONSTITUTE A FORMAL
ACTION, RESOLUTION OR RULE UNDER R.C. 121.22(H)'."
IV
{¶ 16} "THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT
DISMISSED WITH PREJUDICE COUNT FOUR OF RELATOR’S COMPLAINT, AND
CONCLUDED AND FOUND 'ALLEGED VIOLATION SET FORTH IN COUNT FOUR IS
SUBSTANTIALLY THE SAME AS THE VIOLATION ALLEGED IN COUNT TWO. THE
COURT LIKEWISE CONCLUDES THAT THE LACK OF PUBLIC DELIBERATION AND
THE ALLEGED EXECUTIVE SESSION DISCUSSION REGARDING PERMITTING
PUBLIC SPEAKS IN NOT AN OPEN MEETING ACTION VIOLATION AS IT DOES NOT
CONSTITUTE A FORMAL ACTION, RESOLUTION OR RULE UNDER R.C. 121.22(H)'."
V
{¶ 17} "THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT
DISMISSED WITH PREJUDICE COUNT FIVE OF RELATOR'S COMPLAINT, AND
CONCLUDED AND FOUND "THE ALLEGED VIOLATION IN COUNT FIVE IS
SUBSTANTIALLY THE SAME AS THE VIOLATIONS ALLEGED IN COUNTS TWO AND
FOUR. THE COURT LIKEWISE CONCLUDES THAT THE LACK OF PUBLIC
DELIBERATION AND THE ALLEGED EXECUTIVE SESSION DISCUSSION
REGARDING PERMITTING PUBLIC SPEAKS IS NOT AN OPEN MEETING ACTION
VIOLATION AS IT DOES NOT CONSTITUTE A FORMAL ACTION, RESOLUTION OF
RULE UNDER R.C. 121.22(H)." Tuscarawas County, Case No. 2018 AP 03 0013 7
VI
{¶ 18} "THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT
DISMISSED WITH PREJUDICE COUNT THREE OF RELATOR'S COMPLAINT, AND
FOUND 'THE PURPOSE OF THE EXECUTIVE SESSION WAS TO DISCUSS PENDING
LITIGATION WITH LEGAL COUNSEL. THE SETTLEMENT WITH LAKE REGION
DEVELOPMENT CO., LTD., WAS PART OF THAT LITIGATION. THE VILLAGE
COUNCIL'S CONSIDERATION AND DISCUSSION OF THAT SETTLEMENT WITH
THEIR LEGAL COUNSEL IN EXECUTIVE SESSION WAS APPROPRIATE UNDER
121.22(G)(3)'."
VII
{¶ 19} "THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT
DISMISSED WITH PREJUDICE COUNT SIX OF RELATOR'S COMPLAINT, AND
FOUND '[I]N LIGHT OF THE COURT'S FACTUAL FINDINGS AND LEGAL
CONCLUSIONS LISTED ABOVE, THE COURT CONCLUDES THE INVALIDATION OF
ORDINANCE NO. 94-2014 IS NOT WARRANTED'."
ACCELERATED CALENDAR
{¶ 20} Preliminarily, we note this case is before this court on the accelerated
calendar which is governed by App.R. 11.1. Subsection (E), determination and judgment
on appeal, provides in pertinent part: “The appeal will be determined as provided by
App.R. 11.1. It shall be sufficient compliance with App.R. 12(A) for the statement of the
reason for the court's decision as to each error to be in brief and conclusionary form.”
{¶ 21} One of the most important purposes of the accelerated calendar is
to enable an appellate court to render a brief and conclusory decision more quickly than Tuscarawas County, Case No. 2018 AP 03 0013 8
in a case on the regular calendar where the briefs, facts, and legal issues are more
complicated. Crawford v. Eastland Shopping Mall Assn., 11 Ohio App.3d 158, 463 N.E.2d
655 (10th Dist.1983).
{¶ 22} This appeal shall be considered in accordance with the
aforementioned rules.
{¶ 23} For ease of discussion, we will address some of appellant's
assignments of error together and out of order.
{¶ 24} Appellant's second assignment of error argues the trial court erred in
dismissing count one of his complaint when it found Village Council had substantially
complied with the OMA in stating its reason for entering executive session. We disagree.
{¶ 25} On a denial of a writ of mandamus, our standard of review is an
abuse of discretion. State ex rel. River City Capital v. Clermont Cty. Bd. Of Commrs, 12th
Dist. Clermont No. 2010-07-51, 2011-Ohio-4039, ¶ 23. In order to find an abuse of
discretion, we must determine the trial court's decision was unreasonable, arbitrary or
unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore, 5
Ohio St.3d 217, 450 N.E.2d 1140 (1983).
{¶ 26} The OMA states that “[a]ll meetings of any public body are declared
to be public meetings open to the public at all times.” R.C. 121.22(C). Any formal action
adopted in an open meeting that results from deliberations in a meeting not open to the
public is invalid unless (1) the meeting not open to the public was an executive session;
(2) the public body utilized the proper procedures to enter into an executive session; and
(3) the executive session was for a reason enumerated as one of the exceptions to the Tuscarawas County, Case No. 2018 AP 03 0013 9
OMA under R.C. 121.22(G). R.C. 121.22(H). A public body can only enter an executive
session from a properly held regular or special meeting, and only after a roll call vote of
a quorum of the members present. R.C. 121.22(G). To properly hold a special meeting,
the public body must follow the required notice procedures. R.C. 121.22(F). Further, "[i]f
a public body holds an executive session to consider any of the matters listed in divisions
(G)(2) to (8) of this section, the motion and vote to hold that executive session shall state
which one or more of the approved matters listed in those divisions are to be considered
at the executive session." R.C. 121.22(G)(8)(b).
{¶ 27} “[T]he party asserting a violation of [the OMA] has the ultimate
burden to prove [the OMA] was violated (or was threatened to be violated) by a public
body.” State ex rel. Hardin v. Clermont Cty. Bd. of Elections, 12th Dist. Clermont Nos.
CA2011-05-045, CA2011-06-047, 2012-Ohio-2569, ¶ 24. “[T]he presumption of regularity
applies to official actions pursuant to the official's ordinary duties of office.” L.J. Smith,
Inc. v. Harrison Cty. Bd. of Revision, 140 Ohio St.3d 114, 2014-Ohio-2872, 16 N.E.3d
573, ¶ 28.
{¶ 28} The intent of the OMA, as set forth in R.C. 121.22, is to prevent public
bodies from engaging in secret deliberations on public issues with no accountability to the
public. Cincinnati Enquirer v. Cincinnati Bd. of Edn., 192 Ohio App.3d 566, 2011-Ohio-
703, 949 N.E.2d 1032, ¶ 9 (1st Dist.). Under the OMA, public officials are required “to
take official action and to conduct all deliberations upon official business only in open
meetings unless the subject matter is specifically excepted by law.” R.C. 121.22(A).
{¶ 29} After following the procedures outlined above, a public body may
discuss certain subject matter privately in an executive session. Tobacco Use Prevention Tuscarawas County, Case No. 2018 AP 03 0013 10
& Control Found. Bd. of Trustees v. Boyce, 185 Ohio App.3d 707, 2009-Ohio-6993, 925
N.E.2d 641, ¶ 64 (10th Dist.) The exception relevant here is contained in R.C.
121.22(G)(3): "Conferences with an attorney for the public body that are the subject of
pending or imminent court action[.]"
{¶ 30} In this matter, the notice for the special meeting clearly stated the
purpose for both the special meeting and the executive session was to discuss pending
litigation with Lake Region Development Co. Ltd. Publisher's affidavit Legal Notice. At
the special meeting, Mayor Hubble notified those present that Village Council would be
entering executive session. Appellant's Exhibit 3, Video recording of Special Meeting Pre-
Executive Session 00:16-19. An attorney for the Village then stated Council would be
entering executive session to discuss pending litigation. Id., 01:25-28. A motion was then
made to enter executive session, although the motion itself did not state the reason. Id.
01:36. The motion was seconded and a roll call vote to enter executive session then took
place. Id. 01:41-02:06.
{¶ 31} First, appellant complains that in reaching its conclusion, the trial
court should have relied only on the minutes of the meeting and not appellant's own video
of the meeting. We note, however, there are gaps in the minutes of the meeting where
the secretary could not discern what was being said because appellant, his attorney, and
others were disruptive and speaking out of turn. It is necessary to review both the minutes
and the video of the meeting to understand what did or did not take place.
{¶ 32} Next, following a review of the notice of special meeting, the minutes
of the meeting, and the video, we note, as did the trial court, that the public was well
informed that the purpose of the executive session was to discuss the pending litigation Tuscarawas County, Case No. 2018 AP 03 0013 11
and settlement with Lake Region Development Co. Ltd. It is apparent from viewing the
videos that everyone present at the meeting was well aware of the reason the meeting
was called and the reason for executive session. We have reviewed appellant's
arguments and authority in support and find the same unavailing. We conclude the trial
court did not abuse its discretion in finding that the intent of R.C. 121.22 was satisfied and
the Village of Bolivar did not violate the OMA.
{¶ 33} The second assignment of error is overruled.
III, IV, V
{¶ 34} Appellant's third, fourth and fifth assignments of error concern the
trial court's resolution of appellant's allegation that Village Council violated R.C.
121.22(H) when it allegedly discussed during executive session whether to allow Public
Speaks. According to appellant, the trial court erred when it found discussion regarding
permitting public speaks is not an OMA violation. We disagree.
{¶ 35} R.C. 121.22(H) states:
(H) A resolution, rule, or formal action of any kind is invalid unless
adopted in an open meeting of the public body. 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. A resolution, rule, or formal action adopted in an open Tuscarawas County, Case No. 2018 AP 03 0013 12
meeting is invalid if the public body that adopted the resolution, rule, or
formal action violated division (F) of this section.
{¶ 36} The trial court took judicial notice of Village of Bolivar Municipal
Ordinance #0-84-2014, Article 21.2.1 which provides the procedure for allowing Public
Speaks. It states:
The laws of the State of Ohio do not require that the public be granted
an opportunity to speak in a public meeting. All public bodies of the
Village of Bolivar have the discretion to allow or not allow public
comment at each meeting. The public body shall announce whether
or not there will be public comment at the meeting by verbally making
an announcement regarding Public Speaks.
{¶ 37} Decision, March 6, 2018 at 7.
{¶ 38} Per R.C. 121.22(H), in order for a violation of the OMA to occur, some
resolution, rule, or formal action must have been adopted by Village Council after
deliberating in a meeting not open to the public. Cincinnati Enquirer v. Cincinnati Bd. Of
Education, 192 Ohio App.3d 566, 570, 2011-Ohio-703, 949 N.E.2d 1032 (1st Dist.).
{¶ 39} A public body deliberates “by thoroughly discussing all of the factors
involved [in a decision], carefully weighing the positive factors against the negative
factors, cautiously considering the ramifications of its proposed action, and gradually
arriving at a proper decision which reflects the legislative process.” Theile v. Harris, 1st Tuscarawas County, Case No. 2018 AP 03 0013 13
Dist. No. C–860103, 1986 WL 6514 (June 11, 1986). Deliberations involve “more than
information-gathering, investigation, or fact-finding,” which are essential functions of any
board. Berner v. Woods, 9th Dist. No. 07CA009132, 2007-Ohio-6207, 2007 WL 4146645,
¶ 17, Holeski v. Lawrence, 85 Ohio App.3d 824, 829, 621 N.E.2d 802 (11th Dist. 1993).
For example, the act does not prevent board members from participating in question-and-
answer sessions with other persons who are not public officials. Id. 830.
{¶ 40} We agree with the trial court's finding that any lack of public
deliberation, or alleged discussion during executive session regarding public speaks was
not a violation of the OMA because it does not constitute a formal action, resolution or
rule pursuant to R.C. 121.22(H). See Steingass Mechanical v. Warrensville Hts. Bd. of
Edn., 151 Ohio App.3d 321, 2003-Ohio-28, 784 N.E.2d 118, ¶ 48-49. Rather, the decision
is merely administrative. Accordingly, we find no abuse of discretion and overrule
appellant's third, fourth, and fifth assignments of error.
{¶ 41} In his sixth assignment of error, appellant argues the trial court erred
in finding the purpose to the executive session was to discuss pending litigation and that
the settlement offer by Lake Region Development was part of that litigation. According to
appellant, the settlement offer is not an excepted topic for executive session under R.C.
121.22(G) and thus any deliberations surrounding the settlement had to be conducted in
an open meeting. Appellant also revisits his complaint that Village Council did not follow
proper procedure before entering executive session. We disagree.
{¶ 42} We have already determined that the trial court did not abuse its
discretion in finding Village Council properly entered executive session. As for appellant's Tuscarawas County, Case No. 2018 AP 03 0013 14
argument regarding discussion in executive session regarding the proposed settlement,
the Eighth District, in a matter regarding the discoverability of a settlement agreement
under public records provisions found:
While R.C. 121.22(G)(3) permits a governmental body to privately
discuss litigation, the statute expressly invalidates any resolution,
rule or formal action adopted in the closed session unless the
resolution, rule or formal action is adopted in an open meeting. See
R.C. 121.22(H). Thus, once a conclusion is reached regarding
pending or imminent litigation, the conclusion is to be made public,
even though the deliberations leading to the conclusion were private.
Since a settlement agreement contains the result of the bargaining
process rather than revealing the details of the negotiations which
led to the result, R.C. 121.22(G)(3), which exempts from public view
only the conferences themselves, would not exempt a settlement
agreement from disclosure.
{¶ 43} State ex rel. Kinsley v. Berea Bd. of Edn. 64 Ohio App.3d 659, 664,
582 N.E.2d 653 (1990); accord State ex rel. Findlay Publ'g Co. v. Hancock Cty. Bd. of
Commrs., 80 Ohio St.3d 134, 136, 684 N.E.2d 1222 (1997)
{¶ 44} Thus R.C. 121.22(G)(3) permits a public body to discuss and
deliberate on pending litigation, including a settlement agreement or offer in executive Tuscarawas County, Case No. 2018 AP 03 0013 15
session as long as any action taken on the matter is adopted in an open meeting. That is
exactly what took place here. We therefore reject appellant's argument.
{¶ 45} Appellant further argues, under the same assignment of error that
Council could not discuss the settlement offer in executive session because according to
appellant, the offer was one-sided, and thus not a legitimate settlement offer. As noted
above, however, Council was permitted to discuss the offer in executive session. This is
true whether or not the offer met appellant's approval. We reject this argument as well.
{¶ 46} Finally, appellant attempts to transform the executive session
discussion from a discussion on pending litigation to a discussion on zoning changes, a
topic which may not be discussed in executive session. While the pending litigation may
have ultimately had some zoning implication, the purpose of the executive session was
to determine how to resolve the litigation against the Village, a permissible executive
session topic.
{¶ 47} We find no abuse of discretion, and reject appellant's sixth
assignment of error.
{¶ 48} In his seventh assignment of error, appellant argues Ordinance No.
94-2014 is invalid because it resulted from deliberations not open to the public.
{¶ 49} Because we have found no abuse of discretion on the part of the trial
court in concluding there was no violation of the OMA, appellant's seventh assignment of
error must necessarily fail. Tuscarawas County, Case No. 2018 AP 03 0013 16
{¶ 50} Appellant's first assignment of error argues the trial court erred and
abused its discretion when it found appellant's exhibits 2a and 2b inadmissible. Based on
our resolution of assignments of error II, III, IV and V, finding no violation of the OMA,
appellant's second assignment of error challenging evidentiary issues is moot pursuant
to App.R. 12(A)(1)(b) and (c). We therefore decline to address appellant's first assignment
of error.
{¶ 51} The judgment of the Tuscarawas County Court of Common Pleas is
affirmed.
By Wise, Earle, J.
Delaney, P.J. and
Baldwin, J. concur.
EEW/rw