[Cite as State ex rel. Wengerd v. Baughman Twp. Bd. of Trustees, 2014-Ohio-4749.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF WAYNE )
STATE OF OHIO, ex rel. DAVID C.A. No. 13CA0048 WENGERD
Appellant APPEAL FROM JUDGMENT v. ENTERED IN THE COURT OF COMMON PLEAS BAUGHMAN TOWNSHIP BOARD OF COUNTY OF WAYNE, OHIO TRUSTEES CASE No. 2012-CV-0737
Appellee
DECISION AND JOURNAL ENTRY
Dated: October 27, 2014
HENSAL, Presiding Judge.
{¶1} The State of Ohio ex rel. David Wengerd appeals a judgment of the Wayne
County Court of Common Pleas that dismissed his complaint against the Baughman Township
Board of Trustees for violating Ohio’s Sunshine Act. The Court also ordered Mr. Wengerd to
pay the Board’s attorney fees. For the following reasons, this Court reverses.
I.
{¶2} In 2012, the Board explored whether the township should create a joint fire
protection district with neighboring communities. To that end, its trustees attended two public
meetings that were being held by other communities. The Board also hosted officials from the
other communities at one of its meetings.
{¶3} After Mr. Wengerd learned about the trustees’ participation in these meetings, he
sued the Board, alleging that the trustees had held three public meetings without public notice or 2
keeping a record of the meetings. Mr. Wengerd attached two newspaper articles that described
the meetings to an affidavit that he incorporated into his complaint. He also attached a copy of
the minutes of one of the meetings. After filing its Answer, the Board moved for judgment on
the pleadings under Civil Rule 12(C). The trial court granted its motion and ordered Mr.
Wengerd to pay its attorney fees. Mr. Wengerd has appealed, assigning as error that the trial
court incorrectly dismissed his complaint.
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT GRANTED BAUGHMAN TOWNSHIP’S MOTION FOR JUDGMENT ON THE PLEADINGS.
{¶4} The trial court dismissed Mr. Wengerd’s complaint under Civil Rule 12(C), which
provides that “[a]fter the pleadings are closed but within such time as not to delay the trial, any
party may move for judgment on the pleadings.” Id. According to the Ohio Supreme Court,
dismissal is appropriate under Rule 12(C) if:
a court (1) construes the material allegations in the complaint, with all reasonable inferences to be drawn therefrom, in favor of the nonmoving party as true, and (2) finds beyond doubt, that the plaintiff could prove no set of facts in support of his claim that would entitle him to relief. Thus, Civ.R. 12(C) requires a determination that no material factual issues exist and that the movant is entitled to judgment as a matter of law.
Rayess v. Educational Comm. for Foreign Med. Graduates, 134 Ohio St.3d 509, 2012-Ohio-
5676, ¶ 18, quoting State ex rel. Midwest Pride IV, Inc. v. Pontious, 75 Ohio St.3d 565, 570
(1996). “Because the review of a decision to dismiss a complaint pursuant to Civ.R. 12(C)
presents only questions of law, * * * our review is de novo.” Id.
{¶5} In his complaint, Mr. Wengerd alleged that, on March 12, 2012, the trustees met
with the Marshallville council without giving public notice or keeping minutes of the meeting. 3
He also alleged that the trustees met with the Sugarcreek Township board of trustees on April 3,
2012, without giving notice or keeping minutes of the meeting. He further alleged that, after the
trustees finished their regular meeting on August 23, 2012, they held a special meeting with
other government entities. Mr. Wengerd incorporated an affidavit into his complaint, which
included newspaper articles about the March 12 and August 23 meetings. The affidavit also
included a copy of the minutes of the April 3 meeting.
{¶6} Ohio’s Sunshine Law, Revised Code Section 121.22, provides, in part, that “[a]ll
meetings of any public body are * * * open to the public at all times. * * * The 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.” R.C. 121.22(C). According to the statute, “‘[m]eeting’
means any prearranged discussion of the public business of the public body by a majority of its
members.” R.C. 121.22(B)(2). It also provides that it “shall be liberally construed to require
public officials 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).
{¶7} Construing Section 121.22, this Court has held that “a public body violates the
Sunshine Law where it simultaneously conducts a meeting while deliberating over public
business.” Krueck v. Kipton Village Council, 9th Dist. Lorain No. 11CA009960, 2012-Ohio-
1787, ¶ 14. In its motion for judgment on the pleadings, the Board argued that Mr. Wengerd’s
claims failed because he did not allege that the trustees deliberated at the March 12 and April 3
meetings. It also argued that the minutes of the August 23 meeting established that all of the
discussions regarding the joint fire district occurred during its regular meeting, not a special
meeting that followed. 4
{¶8} Regarding whether the trustees engaged in deliberations during the March 12 or
April 3 meetings, this Court has explained that “‘deliberations’ involve more than information-
gathering, investigation, or fact-finding.” Berner v. Woods, 9th Dist. Lorain No. 07CA009132,
2007-Ohio-6207, ¶ 15. “Question-and-answer sessions between board members and other
persons who are not public officials do not constitute ‘deliberations’ unless a majority of the
board members also entertain a discussion of public business with one another.” Id. “In this
context, a ‘discussion' entails an ‘exchange of words, comments or ideas by the board.’” Id.,
quoting Holeski v. Lawrence, 85 Ohio App.3d 824, 830 (11th Dist.1993). “A conclusive
decision among board members on any measure, however, is not necessary to prove a violation.”
Id.
{¶9} According to the documents that Mr. Wengerd included as exhibits to the
affidavit that he incorporated into his complaint, on March 12, 2012, “Baughman trustees and
Marshallville council met * * * to discuss options to create a fire district * * *.” On April 3,
2012, “Baughman trustees were present to discuss the fire funding issue and the possibility of
forming a Baughman – Sugar Creek Township Fire District. No action taken.” Those
statements, construed in a light most favorable to Mr. Wengerd, suggest that the trustees did
more at the March 12 and April 3 meetings than engage in mere fact-finding. Rather, the articles
suggest that the trustees exchanged thoughts and ideas with the representatives of Sugar Creek
and Marshallville about whether they should form a joint fire district. We, therefore, cannot
“find[ ] beyond doubt” that Mr. Wengerd can “prove no set of facts in support of his claim that
would entitle him to relief.” Rayess, 134 Ohio St.3d 509, 2012-Ohio-5676 at ¶ 18.
{¶10} Regarding the August 23 meeting, the newspaper article that Mr. Wengerd
attached as an exhibit to the affidavit that he incorporated into his complaint states that, “[a]fter 5
[the Board’s] monthly trustee meeting,” officials form Sugar Creek, Marshallville, and Dalton
“met to discuss items leading to the creation of a fire district.” The article also indicates that the
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[Cite as State ex rel. Wengerd v. Baughman Twp. Bd. of Trustees, 2014-Ohio-4749.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF WAYNE )
STATE OF OHIO, ex rel. DAVID C.A. No. 13CA0048 WENGERD
Appellant APPEAL FROM JUDGMENT v. ENTERED IN THE COURT OF COMMON PLEAS BAUGHMAN TOWNSHIP BOARD OF COUNTY OF WAYNE, OHIO TRUSTEES CASE No. 2012-CV-0737
Appellee
DECISION AND JOURNAL ENTRY
Dated: October 27, 2014
HENSAL, Presiding Judge.
{¶1} The State of Ohio ex rel. David Wengerd appeals a judgment of the Wayne
County Court of Common Pleas that dismissed his complaint against the Baughman Township
Board of Trustees for violating Ohio’s Sunshine Act. The Court also ordered Mr. Wengerd to
pay the Board’s attorney fees. For the following reasons, this Court reverses.
I.
{¶2} In 2012, the Board explored whether the township should create a joint fire
protection district with neighboring communities. To that end, its trustees attended two public
meetings that were being held by other communities. The Board also hosted officials from the
other communities at one of its meetings.
{¶3} After Mr. Wengerd learned about the trustees’ participation in these meetings, he
sued the Board, alleging that the trustees had held three public meetings without public notice or 2
keeping a record of the meetings. Mr. Wengerd attached two newspaper articles that described
the meetings to an affidavit that he incorporated into his complaint. He also attached a copy of
the minutes of one of the meetings. After filing its Answer, the Board moved for judgment on
the pleadings under Civil Rule 12(C). The trial court granted its motion and ordered Mr.
Wengerd to pay its attorney fees. Mr. Wengerd has appealed, assigning as error that the trial
court incorrectly dismissed his complaint.
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT GRANTED BAUGHMAN TOWNSHIP’S MOTION FOR JUDGMENT ON THE PLEADINGS.
{¶4} The trial court dismissed Mr. Wengerd’s complaint under Civil Rule 12(C), which
provides that “[a]fter the pleadings are closed but within such time as not to delay the trial, any
party may move for judgment on the pleadings.” Id. According to the Ohio Supreme Court,
dismissal is appropriate under Rule 12(C) if:
a court (1) construes the material allegations in the complaint, with all reasonable inferences to be drawn therefrom, in favor of the nonmoving party as true, and (2) finds beyond doubt, that the plaintiff could prove no set of facts in support of his claim that would entitle him to relief. Thus, Civ.R. 12(C) requires a determination that no material factual issues exist and that the movant is entitled to judgment as a matter of law.
Rayess v. Educational Comm. for Foreign Med. Graduates, 134 Ohio St.3d 509, 2012-Ohio-
5676, ¶ 18, quoting State ex rel. Midwest Pride IV, Inc. v. Pontious, 75 Ohio St.3d 565, 570
(1996). “Because the review of a decision to dismiss a complaint pursuant to Civ.R. 12(C)
presents only questions of law, * * * our review is de novo.” Id.
{¶5} In his complaint, Mr. Wengerd alleged that, on March 12, 2012, the trustees met
with the Marshallville council without giving public notice or keeping minutes of the meeting. 3
He also alleged that the trustees met with the Sugarcreek Township board of trustees on April 3,
2012, without giving notice or keeping minutes of the meeting. He further alleged that, after the
trustees finished their regular meeting on August 23, 2012, they held a special meeting with
other government entities. Mr. Wengerd incorporated an affidavit into his complaint, which
included newspaper articles about the March 12 and August 23 meetings. The affidavit also
included a copy of the minutes of the April 3 meeting.
{¶6} Ohio’s Sunshine Law, Revised Code Section 121.22, provides, in part, that “[a]ll
meetings of any public body are * * * open to the public at all times. * * * The 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.” R.C. 121.22(C). According to the statute, “‘[m]eeting’
means any prearranged discussion of the public business of the public body by a majority of its
members.” R.C. 121.22(B)(2). It also provides that it “shall be liberally construed to require
public officials 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).
{¶7} Construing Section 121.22, this Court has held that “a public body violates the
Sunshine Law where it simultaneously conducts a meeting while deliberating over public
business.” Krueck v. Kipton Village Council, 9th Dist. Lorain No. 11CA009960, 2012-Ohio-
1787, ¶ 14. In its motion for judgment on the pleadings, the Board argued that Mr. Wengerd’s
claims failed because he did not allege that the trustees deliberated at the March 12 and April 3
meetings. It also argued that the minutes of the August 23 meeting established that all of the
discussions regarding the joint fire district occurred during its regular meeting, not a special
meeting that followed. 4
{¶8} Regarding whether the trustees engaged in deliberations during the March 12 or
April 3 meetings, this Court has explained that “‘deliberations’ involve more than information-
gathering, investigation, or fact-finding.” Berner v. Woods, 9th Dist. Lorain No. 07CA009132,
2007-Ohio-6207, ¶ 15. “Question-and-answer sessions between board members and other
persons who are not public officials do not constitute ‘deliberations’ unless a majority of the
board members also entertain a discussion of public business with one another.” Id. “In this
context, a ‘discussion' entails an ‘exchange of words, comments or ideas by the board.’” Id.,
quoting Holeski v. Lawrence, 85 Ohio App.3d 824, 830 (11th Dist.1993). “A conclusive
decision among board members on any measure, however, is not necessary to prove a violation.”
Id.
{¶9} According to the documents that Mr. Wengerd included as exhibits to the
affidavit that he incorporated into his complaint, on March 12, 2012, “Baughman trustees and
Marshallville council met * * * to discuss options to create a fire district * * *.” On April 3,
2012, “Baughman trustees were present to discuss the fire funding issue and the possibility of
forming a Baughman – Sugar Creek Township Fire District. No action taken.” Those
statements, construed in a light most favorable to Mr. Wengerd, suggest that the trustees did
more at the March 12 and April 3 meetings than engage in mere fact-finding. Rather, the articles
suggest that the trustees exchanged thoughts and ideas with the representatives of Sugar Creek
and Marshallville about whether they should form a joint fire district. We, therefore, cannot
“find[ ] beyond doubt” that Mr. Wengerd can “prove no set of facts in support of his claim that
would entitle him to relief.” Rayess, 134 Ohio St.3d 509, 2012-Ohio-5676 at ¶ 18.
{¶10} Regarding the August 23 meeting, the newspaper article that Mr. Wengerd
attached as an exhibit to the affidavit that he incorporated into his complaint states that, “[a]fter 5
[the Board’s] monthly trustee meeting,” officials form Sugar Creek, Marshallville, and Dalton
“met to discuss items leading to the creation of a fire district.” The article also indicates that the
four entities verbally agreed to ask a particular law firm to draft an appropriate resolution. The
Board asserts that, while those discussions admittedly took place, the newspaper mistakenly
reported that they occurred after the regular meeting. It notes that it submitted a copy of the
August 23 minutes, which indicate that the discussions happened during the regular meeting, not
a special meeting.
{¶11} As explained earlier, when reviewing a motion for judgment on the pleadings, we
must view all of the material allegations in favor of Mr. Wengerd. The newspaper article
supports his allegation that the Board held another meeting “[a]fter Baughman Township’s
monthly trustee meeting.” We also note that the alleged copy of the August 23 minutes that the
Board attached to its Answer is not signed and does not contain any other indication that it is an
accurate record of what occurred at the meeting. Accordingly, we cannot “find[ ] beyond doubt”
that Mr. Wengerd can “prove no set of facts in support of his claim that would entitle him to
relief.” Id.
{¶12} Upon review of the record, we conclude that the trial court incorrectly granted the
Board’s motion for judgment on the pleadings. Mr. Wengerd’s assignment of error is sustained.
III.
{¶13} The trial court incorrectly dismissed Mr. Wengerd’s complaint. The judgment of
the Wayne County Court of Common Pleas is reversed, and this matter is remanded for further
proceedings.
Judgment reversed, and cause remanded. 6
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Wayne, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellee.
JENNIFER HENSAL FOR THE COURT
CARR, J. MOORE, J. CONCUR.
APPEARANCES:
WARNER MENDENHALL, Attorney at Law, for Appellant.
JOHN T. MCLANDRICH and FRANK H. SCIALDONE, Attorneys at Law, for Appellee.