State ex rel. Calvary v. Upper Arlington - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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[Cite as State ex rel. Calvary v. Upper Arlington, 89 Ohio St.3d 229, 2000-Ohio-142.]

THE STATE EX REL. CALVARY v. CITY OF UPPER ARLINGTON ET AL.
[Cite as State ex rel. Calvary v. Upper Arlington (2000), 89 Ohio St.3d 229.]
Public records -- Mandamus sought to compel city of Upper Arlington to provide
relator access to a draft collective bargaining agreement being considered
by city council -- Requested draft agreement provided to relator --
Exception to general mootness rule not established by relator -- Attorney
fees awarded to relator.
(No. 99-2240 -- Submitted April 25, 2000 -- Decided June 28, 2000.)
IN MANDAMUS.

In 1999, the solid waste, street, and utility employees of respondent city of
Upper Arlington, Ohio, exercised their right to organize under Ohio's Public
Employees Collective Bargaining Act and elected Teamsters Local 284 as their
exclusive representative. Following extensive negotiations between the city and
the union on a collective bargaining agreement, the union went on strike on
December 1, 1999. On December 3, the city and union reached a tentative verbal
agreement, and as part of the agreement, the striking solid waste, street, and utility
employees returned to work on December 6.

On December 10, the city attorney's office prepared a written draft of the
tentative verbal agreement that city officials thought it had reached with the union
and delivered copies of the written draft to respondent Upper Arlington City
Council. On that same date, the union notified the city that unresolved issues
remained. At the December 13 city council meeting, Ordinance No. 221-99, which
would have authorized and directed respondent Upper Arlington City Manager
Richard A. King to enter into the collective bargaining agreement with the union,
was on the agenda, as well as a motion to suspend the three-reading city council

rule.1 The city council did not vote on Ordinance No. 221-99 at the December 13
meeting, instead giving the ordinance a first reading.

From December 13 through December 17, 1999, the city refused numerous
requests by relator, Eleanor H. Calvary, a resident elector and taxpayer of Upper
Arlington, for access to the December 10 draft collective bargaining agreement
being considered by the city council. City Manager King directed that the
December 10 document not be released because it appeared that the city and the
union were still negotiating the terms of the agreement.

On December 20, 1999, Calvary filed a complaint for a writ of mandamus to
(1) compel respondents, Upper Arlington and its city council, city manager, and
clerk of council, to produce the December 10 written draft agreement that was
being considered by the city council, and (2) bar the city council from proceeding
to consider approval of any ordinance authorizing a collective bargaining
agreement between the city and the union. Calvary also requested expedited
consideration and an award of attorney fees and costs. On December 21, the court
granted an alternative writ on Calvary's public records mandamus claim and
denied her request for injunctive relief. 87 Ohio St.3d 1473, 721 N.E.2d 119. On
the same date that we granted an alternative writ, the city council held another
meeting at which the ordinance was given a second reading.

On December 29, the union gave its written version of the collective
bargaining agreement to Upper Arlington officials, and the city released the two
different versions--the city's December 10 draft and the union's December 29
draft--to the public and invited public comment before council voted on
Ordinance No. 221-99 at a December 29 meeting. The city council rejected
Ordinance No. 221-99, i.e., it approved neither draft version of the written
collective bargaining agreement.

2

This cause is now before the court for a consideration of the merits.
Common Cause of Ohio filed amicus curiae briefs in support of Calvary.
__________________

James C. Becker, for relator.

Sharon H. Pfancuff, Upper Arlington City Attorney, for respondents.
Daniel
S.
Knisley, urging granting the writ for amicus curiae, Common
Cause of Ohio.
__________________

Per Curiam.
Mandamus

Calvary requests a writ of mandamus to compel respondents to provide her
with access to the December 10 collective bargaining agreement drafted by Upper
Arlington and considered by the Upper Arlington City Council at three different
meetings. Calvary received access to the records on December 29, the date the city
released a copy of its December 10 draft, as well as the union's December 29 draft,
to the public before council voted on Ordinance No. 221-99.

Under the general rule, the provision of requested records to a relator in a
public records mandamus action renders the mandamus claim moot. State ex rel.
Wadd v. Cleveland (1998), 81 Ohio St.3d 50, 52, 689 N.E.2d 25, 27; State ex rel.
Taxpayers Coalition v. Lakewood (1999), 86 Ohio St.3d 385, 392, 715 N.E.2d 179,
185; State ex rel. Nix v. Cleveland (1998), 83 Ohio St.3d 379, 382, 700 N.E.2d 12,
15.

Calvary contends that respondents' provision of the requested draft
agreement does not moot her mandamus claim because the issues she raises are
capable of repetition, yet evading review. This exception applies only in
exceptional circumstances in which the following two factors are both present: (1)
the challenged action is too short in its duration to be fully litigated before its

3

cessation or expiration, and (2) there is a reasonable expectation that the same
complaining party will be subject to the same action again. Spencer v. Kemna
(1998), 523 U.S. 1, 17-18, 118 S.Ct. 978, 988, 140 L.Ed.2d 43, 56; see, also, State
ex rel. Beacon Journal Publishing Co. v. Donaldson (1992), 63 Ohio St.3d 173,
175, 586 N.E.2d 101, 102-103; State ex rel. Allstate Ins. Co. v. Gaul (1999), 131
Ohio App.3d 419, 437, 722 N.E.2d 616, 629.

Calvary has not established that this exception to the general mootness rule
applies to her mandamus claim. Calvary has not shown that the time between
submission of a tentative collective bargaining agreement to a municipal legislative
authority and that authority's decision on the agreement is always so short as to
evade review, nor has she demonstrated a reasonable likelihood that she will be
unable to obtain subsequent agreements to be voted on by the Upper Arlington
City Council. It seems unlikely that a written agreement would be submitted in the
future to the city council that is subsequently disputed by the other party to the
agreement.

Moreover, applying the general mootness rule to Calvary's mandamus claim
here will not make the issues raised by Calvary evade our review. As in State ex
rel. Gannett Satellite Info. Network v. Shirey (1997), 78 Ohio St.3d 400, 402, 678
N.E.2d 557, 560, we can address the issues raised by Calvary in the context of her
request for attorney fees. And despite her claims to the contrary, she presented no
evidence to support her assertion that respondents gave the public access to the
draft agreement only five minutes before the city council's final vote at its
December 29, 1999 meeting.

Therefore, because no exception to the general rule applies, we deny
Calvary's mandamus claim based on mootness.

4

Request for Attorney Fees

Calvary requests attorney fees. "A court may award attorney fees pursuant
to R.C. 149.43 where (1) a person makes a proper request for public records
pursuant to R.C. 149.43, (2) the custodian of the public records fails to comply
with the person's request, (3) the requesting person files a mandamus action
pursuant to R.C. 149.43 to obtain copies of the records, and (4) the person receives
the requested public records only after the mandamus action is filed, thereby
rendering the claim for a writ of mandamus moot." State ex rel. Pennington v.
Gundler (1996), 75 Ohio St.3d 171, 661 N.E.2d 1049, syllabus.

It is uncontroverted that Calvary met the second, third, and fourth
requirements specified in Pennington. Respondents refused Calvary's requests for
access to the December 10 draft agreement; she filed a mandamus action to compel
the requested access; and she received a copy of the requested record only after she
had filed her mandamus action, and that access mooted her mandamus claim. At
issue is the remaining Pennington requirement concerning the propriety of
Calvary's request.

Respondents contend that because the December 10 draft agreement was not
in final form and R.C. 4117.11(A)(1), (5), and (8), and 4117.21 exempted the draft
agreement from public disclosure, Calvary's public records request was improper.
Respondents' contention is meritless.

Even if a record is not in final form, it may still constitute a "record" for
purposes of R.C. 149.43 if it documents the organization, policies, functions,
decisions, procedures, operations, or other activities of a public office. Wadd, 81
Ohio St.3d at 53, 689 N.E.2d at 28 (access to preliminary, unnumbered accident
reports not yet processed by Cleveland into final form); State ex rel. Cincinnati
Post v. Schweikert (1988), 38 Ohio St.3d 170, 173, 527 N.E.2d 1230, 1232 (access
to preliminary work product that had not reached its final stage or official

5

destination); State ex rel. Dist. 1199, Health Care & Social Serv. Union, SEIU,
AFL-CIO v. Gulyassy (1995), 107 Ohio App.3d 729, 734, 669 N.E.2d 487, 490-
491 (access to drafts of proposed changes to collective bargaining statutes prepared
by state agency); R.C. 149.011(G). The December 10 draft agreement is a record
for purposes of R.C. 149.43 because it documents the activities of respondents
Upper Arlington and its officials, i.e., it represents the city's version of what it and
the union agreed on during collective bargaining, and the city relied on that version
in submitting the draft to the city council for approval. See, e.g., State ex rel.
Freedom Communications, Inc. v. Elida Community Fire Co. (1998), 82 Ohio
St.3d 578, 581, 697 N.E.2d 210, 213; R.C. 149.011(G).

None of the statutes cited by respondents exempts the draft agreement from
disclosure under R.C. 149.43. R.C. 4117.11(A)(1), (5), and (8) merely set forth
various public employer unfair labor practices and do not exempt any records from
disclosure as public records.

R.C. 4117.21 provides that "[c]ollective bargaining meetings between public
employers and employee organizations are private, and are not subject to section
121.22 [open meetings provisions] of the Revised Code." (Emphasis added.) In
construing R.C. 4117.21, we first look at the statutory language, reading words
used in context and applying rules of grammar and common usage. See State ex
rel. Antonucci v. Youngstown City School Dist. Bd. of Edn. (2000), 87 Ohio St.3d
564, 566, 722 N.E.2d 69, 70-71. A "meeting" is defined as "[a]n assembly of
persons, esp[ecially] to discuss and act on matters in which they have a common
interest." Garner, Black's Law Dictionary (7 Ed.1999) 997.

The manifest language of R.C. 4117.21 exempts only collective bargaining
meetings from public disclosure. R.C. 4117.21 authorizes the closure of collective
bargaining meetings between public employers and employee organizations and
precludes the disclosure of minutes of those meetings under R.C. 149.43. State ex

6

rel. Findlay Publishing Co. v. Hancock Cty. Bd. of Commrs. (1997), 80 Ohio St.3d
134, 139, 684 N.E.2d 1222, 1226. But collective bargaining agreements, tentative
or otherwise, resulting from the negotiations are not shielded from disclosure. Id.;
see, also, In re South Euclid-Lyndhurst City School Dist. Bd. of Edn. (Apr. 21,
1992), SERB No. 92-005, at 3-15 ("As valuable as [the R.C. 4117.21 provision of]
privacy is, however, it applies only to the meetings themselves. This is clear from
both the words of the statute and its intent."). None of the cases cited by
respondents requires a different result. See, e.g., Springfield Local School Dist.
Bd. of Edn. v. Ohio Assn. of Pub. School Emp., Local 530 (1995), 106 Ohio
App.3d 855, 869, 667 N.E.2d 458, 467.

Therefore, Calvary met the remaining Pennington requirement as well--she
made a proper request for public records to which she was entitled. This
conclusion is consistent with our duty in public records cases to strictly construe
exemptions from disclosure under R.C. 149.43 and to resolve any doubts in favor
of disclosure of public records. State ex rel. Cleveland Police Patrolmen's Assn. v.
Cleveland (1999), 84 Ohio St.3d 310, 312, 703 N.E.2d 796, 797.

Further, under our unanimous holding in Findlay Publishing Co., 80 Ohio
St.3d at 139, 684 N.E.2d at 1226, we exercise our discretion by awarding Calvary
attorney fees because she "has established a sufficient public benefit, and
[respondents] failed to comply with [her] records request for reasons that were
unreasonable and unjustifiable." Id.; State ex rel. Toledo Blade Co. v. Hancock
Cty. Bd. of Commrs. (1998), 82 Ohio St.3d 34, 37, 693 N.E.2d 787, 788-789. The
public benefits when it receives sufficient notice of the terms of a collective
bargaining agreement that is being submitted for a vote of a municipal legislative
authority in order to provide constructive input to that authority concerning the
agreement. And contrary to respondents' claims, they had no reasonable basis for
believing that complying with Calvary's requests might result in unfair labor

7

practice charges against them. Cf. Mentor Exempted Village School Dist. Bd. of
Edn. v. State Emp. Relations Bd. (1991), 76 Ohio App.3d 465, 470-471, 602
N.E.2d 374, 378, and Vandalia-Butler City School Dist. Bd. of Edn. v. State Emp.
Relations Bd. (Aug. 15, 1991), Montgomery App. No. 12517, unreported, 1991
WL 355161, which both involve public employers' direct communications with
bargaining unit employees on negotiations with the employees' exclusive
representatives and are consequently distinguishable from this case.

Therefore, we award attorney fees to Calvary and order her counsel to
submit a bill and documentation in support of the request for attorney fees, in
accordance with the guidelines set forth in DR 2-106(B).
Judgment accordingly.

MOYER, C.J., RESNICK, F.E. SWEENEY and PFEIFER, JJ., concur.

DOUGLAS, J., concurs in judgment.

COOK and LUNDBERG STRATTON, JJ., separately concur in part and dissent in
part.
FOOTNOTE:

1.
Section 4, Article IV of the Upper Arlington Rules of Council
specifies that "[e]xcept as provided in subsections 5 and 6, any ordinance or
resolution of a general or permanent nature, or granting a franchise, or creating a
right or involving the expenditure of money, or levying of a tax, or the purchase,
lease, sale or transfer of property shall not be passed or adopted, unless it has been
fully and distinctly read by title only on three different days, and with respect to
any such ordinance or resolution, there shall be no authority to suspend this rule,
except by an affirmative vote of six members of City Council, on each ordinance or
resolution and entered in the journal." (Emphasis added.)
__________________

8

COOK, J., concurring in part and dissenting in part. I agree with Justice
Lundberg Stratton's conclusion that an award of attorney fees is not warranted in
this case.
__________________

LUNDBERG STRATTON, J., concurring in part and dissenting in part. I
agree with the majority that Calvary's mandamus action should be denied because
it is moot. However, contrary to the majority's holding, I would deny Calvary her
attorney fees.

An "award of attorney fees under R.C. 149.43 is not mandatory." State ex
rel. Fox v. Cuyahoga Cty. Hosp. Sys. (1988), 39 Ohio St.3d 108, 529 N.E.2d 443,
paragraph two of the syllabus. An award of attorney fees is justified only if there
is a sufficient public benefit to having access to the requested document and the
respondent failed to comply with the relator's request for reasons that were
"unreasonable and unjustifiable." State ex rel. Findlay Publishing Co. v. Hancock
Cty. Bd. of Commrs. (1997), 80 Ohio St.3d 134, 139, 684 N.E.2d 1222, 1226. In
addressing the reasonableness of Calvary's request, the majority concludes that
even though the request was for the written draft of the collective bargaining
agreement to which "unresolved issues remained," the request was proper and
therefore Upper Arlington must pay Calvary's attorney fees. The majority
supports its determination that the request for the draft of the collective bargaining
agreement was proper on three bases.

The first basis is that the draft of a public record is still a public record for
purposes of disclosure pursuant to R.C. 149.43. Except for State ex rel. Dist. 1199,
Health Care & Social Serv. Union, SEIU, AFL-CIO v. Gulyassy (1995), 107 Ohio
App.3d 729, 734, 669 N.E.2d 487, 490-491, which holds that a draft of a collective
bargaining agreement is a public record, I do not necessarily disagree with the
cases cited by the majority in support of the proposition that a draft of a public

9

record is subject to public disclosure. However, for reasons I will set out below, I
believe that a draft of a collective bargaining agreement is distinguishable from
other draft documents retained by a public office.

The majority's second basis is that a document that memorializes a public
office's official duties is a public record for purpose of disclosure under R.C.
149.43. I do not necessarily disagree with this general premise. Again, however, I
believe that a draft of a collective bargaining agreement is distinguishable.

The third basis, and primary focus of the majority's analysis, is upon the
interpretation of R.C. 4117.21. The majority holds that R.C. 4117.21 exempts only
collective bargaining meetings and the minutes of the meetings from public
disclosure. Citing Findlay Publishing, 80 Ohio St.3d at 139, 684 N.E.2d at 1226,
the majority goes on to state that "collective bargaining agreements, tentative or
otherwise, resulting from the negotiations are not shielded from disclosure."
(Emphasis added in part.) In fact, Findlay Publishing does not declare that a
tentative collective bargaining agreement is a public record. Rather, Findlay
Publishing cites Springfield Local School Dist. Bd. of Edn. v. Ohio Assn. of Pub.
School Emp., Local 530 (1995), 106 Ohio App.3d 855, 667 N.E.2d 458, and states
that "Springfield Local did not hold that the collective bargaining agreements
resulting from the negotiations are not subject to disclosure." (Emphasis added.)
Id., 80 Ohio St.3d at 139, 684 N.E.2d at 1226. In other words, Findlay Publishing
could be cited for the proposition that a "final" collective bargaining agreement is a
public record, a conclusion I do not dispute.

I believe that it is the General Assembly's intent, reflected in R.C. 4117.21,
to distinguish a draft of a collective bargaining agreement from other public
records because it makes the meetings in which collective bargaining agreements
are negotiated private. Paramount in construing statutes is legislative intent. State
ex rel. Purdy v. Clermont Cty. Bd. of Elections (1997), 77 Ohio St.3d 338, 340, 673
10

N.E.2d 1351, 1353. It is a fundamental rule of statutory construction that statutes
pertaining to the same general subject matter should be read in pari materia.
Hughes v. Ohio Bur. of Motor Vehicles (1997), 79 Ohio St.3d 305, 308, 681
N.E.2d 430, 433. In interpreting statutes in pari materia, both statutes should be
harmonized and given meaning. See, e.g., Mayfield Hts. Fire Fighters Assn.,
Local 1500 v. DeJohn (1993), 87 Ohio App.3d 358, 622 N.E.2d 380.

Both R.C. 4117.21 and 149.43 address the general subject of public access
to the "business" of a public office. R.C. 149.43 provides the general rule that
records kept by public offices are subject to public inspection. However, the
Public Records Act recognizes that there may be state law exceptions to disclosure
of certain public records. See R.C. 149.43(A)(1)(q). R.C. 4117.21 expressly
makes collective bargaining meetings between a public employer and the
employees' representative private. And as the majority correctly recognizes, R.C.
4117.21 also exempts the minutes of these meetings from public disclosure. See
Springfield Local School Dist. Bd. of Edn., supra.

In promulgating R.C. 4117.21, the General Assembly intended that
negotiations between a public employer and the employees' representative
regarding a collective bargaining agreement should be private. Springfield Local
School Dist. Bd. of Edn., 106 Ohio App.3d at 869, 667 N.E.2d at 467-468. The
exemption from public disclosure benefits both the employees, as well as the
employer, by enabling candid negotiations. To interpret R.C. 4117.21, as the
majority does, making the meetings and minutes from these meetings private but
allowing public disclosure of a draft agreement of the collective bargaining
agreement crafted at the meeting defeats the purpose of R.C. 4117.21. To allow
disclosure of a draft of a collective bargaining agreement would permit public
access to, in effect, unfinished negotiations. This conflicts with the purpose of
R.C. 4117.21, which keeps negotiations of a collective bargaining agreement
11

private. "This court avoids adopting a construction of a statute that would `result
in circumventing the evident purpose of the enactment.' " State ex rel. Cincinnati
Post v. Cincinnati (1996), 76 Ohio St.3d 540, 543, 668 N.E.2d 903, quoting
Daiquiri Club, Inc. v. Peck (1953), 159 Ohio St. 52, 55, 50 O.O. 26, 28, 110
N.E.2d 705, 707.

Therefore, reading R.C. 4117.21 in pari materia with R.C. 149.43, I would
find that R.C. 4117.21 should exempt not only meetings and minutes from those
meetings that address collective bargaining but also any drafts of collective
bargaining agreements that result from these meetings from public access, as long
as the draft does not yet represent the final agreement.

Because I believe a draft of a collective bargaining agreement should be
exempt from disclosure, I would find that Upper Arlington's refusal to provide
Calvary with the draft collective bargaining agreement was reasonable. At the
very least, Upper Arlington had a good-faith reason for its refusal to release the
draft when requested, fearing an unfair labor practice allegation if it prematurely
disclosed the collective bargaining agreement. Thus, I believe that Calvary should
not be awarded attorney fees.

Accordingly, I concur that Calvary's complaint seeking a writ of mandamus
should be dismissed as moot, but I would deny Calvary attorney fees.
12