State ex rel. Long v. Cardington Village Council - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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[Cite as State ex rel. Long v. Cardington Village Council, 92 Ohio St.3d 54, 2001-
Ohio-130.]

THE STATE EX REL. LONG v. COUNCIL OF THE VILLAGE OF CARDINGTON ET AL.
[Cite as State ex rel. Long v. Cardington Village Council (2001), 92 Ohio St.3d
54.]
Public records -- Mandamus sought to compel respondents Cardington, Ohio,
et al. to prepare, file and maintain full and accurate minutes and to
conduct all meetings in public, except for properly called executive
sessions -- Writ granted -- Attorney fees and costs awarded.
(No. 00-857 -- Submitted March 13, 2001 -- Decided June 13, 2001.)
IN MANDAMUS.
__________________

Per Curiam. Respondent Council of the Village of Cardington, Ohio, and
its members, respondents Robert Doolin, Cecil Maxwell, Laurie Plotner, David
Sheets, Joel Sherman, and Vicki Wise, conduct public business of the village
through prearranged discussions by a majority of the village council members.
The village council characterizes these prearranged discussions as regular
sessions, special sessions, work sessions, joint sessions, personnel committee
meetings, and finance committee meetings. Respondent Cardington Mayor
William Christian attends and presides over village council meetings, and
respondent Cardington Clerk/Treasurer Belva Bowers prepares minutes for the
meetings.

On May 9, 2000, after becoming dissatisfied with respondents' responses
to her request for certain public records and to her claims that respondents had
violated Ohio's Sunshine Law, R.C. 121.22, relator, Mary Long, a village resident
and former village council member, filed a complaint for a writ of mandamus in
this court.

SUPREME COURT OF OHIO

In her complaint, Long claimed that village council minutes for meetings
held by respondents were inadequate and incorrect. More specifically, Long
objected to the council minutes of the January 3, 2000 work session, the January
3, 2000 joint session, the January 13, 2000 work session, the January 17, 2000
regular session, the January 17, 2000 finance committee meeting, the January 24,
2000 personnel committee meeting, the January 25, 2000 personnel committee
meeting, the January 26, 2000 special session, the February 22, 2000 finance
committee meeting, the March 20, 2000 regular session, and the March 20, 2000
finance committee meeting.

For example, the minutes of the January 3 council meetings erroneously
included Long's name in the roll call, but she was not a member of the village
council at that time. In addition, the January 3 council work session included the
following generalized statements:

"The Mayor discussed the plans for this meeting. The Mayor's belief in
how committee chairs will operate. * * * There was a discussion regarding the
wet retention area at Bantry Farms. Future Developers must not have the same
engineer as the village."

Long further claimed that minutes for the January 13 work session, the
January 17 regular session, the January 26 special session, and the March 20
regular session failed to state with the requisite specificity the purpose or purposes
of convening executive sessions (i.e., meetings closed to the public) during the
council's sessions. Instead, the minutes for these meetings referred to executive
sessions for the purposes of "personnel and finances," "personnel," and
"personnel matters."

In addition, Long asserted that minutes of the January 17 finance
committee meeting, the January 24 personnel committee meeting, the January 25
personnel committee meeting, the February 22 finance committee meeting, and
the March 20 finance committee meeting did not record motions or votes.
2

January Term, 2001

Long requested a writ of mandamus to compel respondents to prepare,
file, and maintain full and accurate meeting minutes for all meetings and
executive sessions, including those meetings specified in her complaint, and to
compel respondents to conduct all meetings in public except for those meetings
that properly constitute executive sessions. Long also requested an award of costs
and attorney fees under R.C. 121.22(I) and 149.43(C).

Respondents Bowers, Christian, Doolin, and Maxwell filed an answer and
a motion for judgment on the pleadings. In the motion, they claimed that this
court lacks original jurisdiction over an action for a mandatory injunction in
common pleas court under R.C. 121.22(I) and that Long has, in fact, brought such
an action in the Morrow County Court of Common Pleas. Respondents
Cardington Village Council, Plotner, Sheets, Sherman, and Wise failed to file a
timely response to Long's complaint, and Long moved for a default judgment
against them.

After mediation failed to resolve the parties' dispute, this case was
returned to the regular docket. We denied the motions for judgment on the
pleadings and for default judgment and granted an alternative writ. 90 Ohio St.3d
1415, 735 N.E.2d 455.

The parties then filed evidence and briefs. Respondents' evidence
included an affidavit of respondent Plotner in which she stated that council
meetings, with the exception of executive sessions, are audiotaped, that the tapes
are available to the public, and that the minutes are prepared from the tapes and
notes of the meetings. Respondents subsequently filed audiotapes and transcripts
of audiotapes of the following council meetings: the January 3 joint session, the
January 17 regular session, the January 26 special session, and the March 20
regular session.

This cause is now before the court for a consideration of the merits.
3

SUPREME COURT OF OHIO

Long requests a writ of mandamus to compel respondents to prepare, file,
and maintain full and accurate minutes for all meetings and to conduct all
meetings in public except for properly called executive sessions.

Ohio's Sunshine Law, R.C. 121.22, requires the preparation, filing, and
maintenance of a public body's minutes. White v. Clinton Cty. Bd. of Commrs.
(1996), 76 Ohio St.3d 416, 423, 667 N.E.2d 1223, 1229; R.C. 121.22(C). Once
these minutes are prepared, Ohio's Public Records Act, R.C. 149.43, requires the
public body to permit public access to the minutes upon request. State ex rel.
Fairfield Leader v. Ricketts (1990), 56 Ohio St.3d 97, 101, 564 N.E.2d 486, 491;
see, also, R.C. 121.22(C). Finally, R.C. 733.27(A) provides that the village clerk
"shall attend all meetings of the legislative authority of the village, and keep a
record of its proceedings." (Emphasis added.)

Construing R.C. 121.22, 149.43, and 733.27 in pari materia, respondents,
the Cardington Village Council, its members, the village clerk, as well as the
mayor, who presides over the village council meetings, have a duty to prepare,
file, and maintain full and accurate minutes for council meetings, and to make
them available for public inspection. See State ex rel. Gains v. Rossi (1999), 86
Ohio St.3d 620, 622, 716 N.E.2d 204, 207 ("Under the applicable rule of statutory
construction, all statutes relating to the same general subject matter must be read
in pari materia"); cf. White, 76 Ohio St.3d 416, 667 N.E.2d 1223, at paragraph
one of the syllabus ("R.C. 121.22, 149.43, and 305.10, when read together,
impose a duty on all boards of county commissioners to maintain a full and
accurate record of their proceedings").

Respondents contend that they fully complied with these duties to prepare
and make available minutes by audiotaping council meetings and making the
audiotapes of the meetings available to the public. In White, 76 Ohio St.3d at
424, 667 N.E.2d at 1229, we observed that audio recordings could be a
"legitimate means of satisfying the requirements of R.C. 121.22 * * *."
4

January Term, 2001
Nevertheless, for the following reasons, respondents' contention that their
audiotapes complied with R.C. 121.22, 149.43, and 733.27 is meritless.

First, respondents never treated these audiotapes as the official minutes of
their meetings. Instead, the typewritten minutes are prepared from the tapes as
well as from notes taken during the meetings. At the beginning of regular council
meetings, the council reviews and approves the written minutes, not the tapes, of
prior meetings.

Second, respondents did not tape all of their meetings. For example,
respondents have not introduced tapes of any of the village council's finance or
personnel committee meetings, or for that matter, any council meetings other than
the four filed in this proceeding.

Third, at the April 17, 2000 village council meeting, the council
unanimously voted to erase tapes of council meetings after the written minutes
had been approved. If the tapes were truly the minutes required by R.C. 121.22,
149.43, and 733.27, they would be maintained, not quickly destroyed. See R.C.
121.22(C) ("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").

Finally, even if the few tapes and accompanying transcripts provided by
respondents could be considered minutes, they contain too many inaudible
portions to satisfy the requirement of a full and accurate record. For example, the
tape of the January 3 joint session contains approximately thirteen instances in
which the tape cannot be understood, and the tape of the January 17 regular
session contains approximately twenty-six inaudible portions. Notably, absent a
transcript of each audiotape, a member of the public might not know the identities
of the speakers.
5

SUPREME COURT OF OHIO

Therefore, in determining whether respondents complied with their
statutory duties, we consider the written minutes provided to Long rather than the
audiotapes.

In analyzing these minutes, it is apparent that they do not provide a full
and accurate record of council proceedings. The challenged minutes contain
admitted inaccuracies that have never been corrected. For example, the minutes
for the January 3 council meetings erroneously include Long's name in the roll
call of council members even though she was no longer a council member on that
date.

In addition, the minutes do not include sufficient facts to understand and
appreciate the rationale behind some of the village council's decisions. "[F]ull
and accurate 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, 76 Ohio St.3d at 424, 667 N.E.2d at 1229. The minutes
of the January 3 work session, for example, state that future developers "must not
have the same engineer as the village," but there is no recorded vote ordering this,
nor is there any rationale offered to support this apparent council decision. And
the minutes of the January 26 special session indicate that respondent Sherman
was appointed council member but include no rationale for the appointment or a
properly scheduled executive session under R.C. 121.22(G)(1).

In fact, respondents' minutes of finance and personnel committee
meetings do not include motions and votes, much less the detail to meet the
comprehensive requirements of R.C. 121.22. See White, 76 Ohio St.3d at 423,
667 N.E.2d at 1229 (Minutes of any meeting of a public body besides properly
called executive sessions "certainly should not be limited to a mere recounting of
the body's roll call votes"). For example, the minutes for the January 17 finance
committee meeting state merely that "[a] brief meeting was held to sign off on all
accounts" without specifying motions, votes, or details concerning the accounts.
6

January Term, 2001
Similarly, the minutes of the February 22 finance committee meeting state that the
committee "went over the budget page by page for the final reading at the next
scheduled Council Meeting," without mentioning the budget items or any motions
or votes.

Respondents counter that they need not provide full and accurate minutes
of any committee meetings because the village council does not conduct official
business at these meetings, and they do not constitute council meetings.
Respondents' assertion is meritless. R.C. 121.22(C) mandates that public
officials, when meeting to consider official business, conduct those meetings in
public. The R.C. 121.22(B)(2) definition of "meeting," which is required by R.C.
121.22(A) to be "liberally construed" in favor of open meetings, requires (1) a
prearranged discussion, (2) a discussion of the public business of the public body,
and (3) the presence at the discussion of a majority of the members of the public
body. State ex rel. Cincinnati Post v. Cincinnati (1996), 76 Ohio St.3d 540, 543,
668 N.E.2d 903, 906. Liberally construing these requirements, committee
meetings are meetings for purposes of R.C. 121.22 because they are prearranged
discussions of the public business of a public body by a majority of the public
body's members. See R.C. 121.22(A). In fact, respondents conceded this in their
pleading. And as they further admitted, R.C. 121.22(B)(1)(b) includes any
committee or subcommittee of a legislative authority of a political subdivision,
e.g., a village council, as a "public body" for purposes of the Sunshine Law, so
that the council's personnel and finance committees constitute public bodies in
that context.

" `[W]here, as here, the members of a public body agree to attend, in their
official capacity, a meeting where public business is to be discussed and a
majority of the members do attend, R.C. 121.22(C) necessitates that minutes of
the meeting be recorded.' " Cincinnati Post, 76 Ohio St.3d at 543, 668 N.E.2d at
905, quoting Fairfield Leader, 56 Ohio St.3d at 102, 564 N.E.2d at 491.
7

SUPREME COURT OF OHIO

Furthermore, the minutes reflect that respondents often failed to specify
the appropriate statutory purpose or purposes before conducting private, i.e.,
executive sessions. If a public body decides to conduct an executive session for
the purpose of considering one or more of the matters listed in R.C. 121.22(G)(1)
concerning personnel, the public body must specify in its motion and vote those
listed matters that it will discuss in the executive session. R.C. 121.22(G)(1)1;
1988 Ohio Atty. Gen. Ops. No. 88-029, 2-120 to 2-121, fn. 1.

By using general terms like "personnel" and "personnel and finances"
instead of one or more of the specified statutory purposes, respondents violated
R.C. 121.22(G)(1). See, e.g., Jones v. Brookfield Twp. Trustees (June 30, 1995),
Trumbull App. No. 92-T-4692, unreported, 1995 WL 411842 ("a reference to
`police personnel issues' does not technically satisfy [the R.C. 121.22(G)(1)]
requirement because it does not specify which of the approved purposes was
applicable in this instance").

In fact, even if we were to accept respondents' invitation to consider the
provided tapes and transcripts in order to "fill in the blanks" of their official
minutes, no tapes were provided of the January 13 regular session, the tape of the
January 17 council meeting indicates that the motion to go into executive session
that was approved by council only generally referred to an executive session for
"personnel," and the tape of the January 26 motion merely reiterated the laundry
list of possible matters from R.C. 121.22(G)(1) without specifying which of those
purposes would be discussed in executive session.

Therefore, respondents have not complied with R.C. 121.22, 149.43, and
733.27.

Respondents finally contend that Long is precluded from seeking
extraordinary relief in mandamus because she has an adequate legal remedy by
way of her R.C. 121.22(I)2 action in the Morrow County Court of Common Pleas
for a mandatory injunction to enforce Ohio's Sunshine Law provisions.
8

January Term, 2001

An action for a mandatory injunction, however, is an extraordinary
remedy that does not preclude a writ of mandamus to enforce R.C. 121.22 and
149.43. See Fairfield Leader, 56 Ohio St.3d at 102, 564 N.E.2d at 492 ("R.C.
121.22[I] * * * provides The Leader no adequate alternative to the writ"); cf.
Hardesty v. River View Local School Dist. Bd. of Edn. (1993), 63 Ohio Misc.2d
145, 149, 620 N.E.2d 272, 274 (R.C. 121.22[I] does not provide the exclusive
remedy for a person adversely affected by the failure of a governmental body to
comply with the Sunshine Law); see, also, State ex rel. Levin v. Schremp (1995),
73 Ohio St.3d 733, 735, 654 N.E.2d 1258, 1259 (mandatory injunction is not an
adequate legal remedy precluding extraordinary relief in mandamus); State ex rel.
Findlay Publishing Co. v. Schroeder (1996), 76 Ohio St.3d 580, 582, 669 N.E.2d
835, 838 ("[P]ersons seeking public records pursuant to R.C. 149.43[C] need not
establish the lack of an adequate remedy at law in order to be entitled to a writ of
mandamus").

Based on the foregoing, Long has established her entitlement to the
requested extraordinary relief in mandamus. She is also entitled to an award of
attorney fees and costs. R.C. 149.43(C); cf. R.C. 121.22(I)(2). Despite
respondents' attempt to portray Long as an embittered ex-council member who
condoned a comparable lack of detail in meeting minutes during her tenure, it
remains evident that these facts do not excuse respondents' continued
noncompliance with the applicable statutes. A contrary holding would constitute
a disservice to the public, not simply Long. This action has consequently resulted
in a public benefit, and respondents failed to comply with R.C. 121.22, 149.43,
and 733.27 even when inaccuracies and insufficiencies in the minutes were
manifest. See White, 76 Ohio St.3d at 424, 667 N.E.2d at 1229; cf. R.C. 121.22.
We consequently order Long to submit a bill and documentation in support of her
request for attorney fees and costs, in accordance with the guidelines set forth in
DR 2-106(B).
9

SUPREME COURT OF OHIO

As we observed in White, 76 Ohio St.3d at 419, 667 N.E.2d at 1226, "One
of the strengths of American government is the right of the public to know and
understand the actions of their elected representatives. This includes not merely
the right to know a government body's final decision on a matter, but the ways
and means by which those decisions were reached." Respondents have
circumvented these crucial rights by preparing and maintaining insufficient and
inaccurate minutes.

Therefore, we grant a writ of mandamus to compel respondents to prepare,
file, and maintain full and accurate minutes and to conduct all meetings in public,
except for properly called executive sessions. Cf. State ex rel. Inskeep v. Staten
(1996), 74 Ohio St.3d 676, 678, 660 N.E.2d 1207, 1209, where we granted
similarly expansive relief in an open-meetings case, and R.C. 121.22(I), which
permits a broad mandatory injunction to compel violators of the Sunshine Law to
comply with its provisions.
Writ granted.

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

LUNDBERG STRATTON, J., dissents.
__________________

LUNDBERG STRATTON, J., dissenting. I respectfully dissent. I believe
that R.C. 121.22(I)(1) provides the relator with an adequate remedy in the
ordinary course of the law; therefore, I would deny the writ.

Mandamus may not be issued when there is a plain and adequate remedy
in the ordinary course of the law. R.C. 2731.05. Mandamus is intended for use
when other remedies are incapable of affording relief. State ex rel. Phelps v.
Gearheart (1922), 104 Ohio St. 422, 135 N.E. 606. It is to be used when there is
no other legal remedy; it is not to be used instead of, or in addition to, other
available remedies.
10

January Term, 2001

This court has held that in order to foreclose relief in mandamus, an
alternative remedy to mandamus must be complete, beneficial, and speedy. State
ex rel. Natl. Elec. Contrs. Assn., Ohio Conference v. Ohio Bur. of Emp. Serv.
(1998), 83 Ohio St.3d 179, 183, 699 N.E.2d 64, 67; State ex rel. Walker v.
Lancaster City School Dist. Bd. of Edn. (1997), 79 Ohio St.3d 216, 218, 680
N.E.2d 993, 995. The remedy must be appropriate to the circumstances and
secure relief for the complaining party. See State ex rel. Phelps v. Gearheart, 104
Ohio St. 422, 135 N.E. 606.

R.C. 121.22(I) was enacted specifically to provide a remedy for violations
of R.C. 121.22. It allows any person to bring an action in common pleas court
within two years of an alleged or threatened violation of Ohio's Sunshine Law. If
the complaining party proves a violation or a threat thereof, the court shall issue
an injunction to force compliance. This remedy is specifically tailored to the
circumstances alleged by relator and designed to afford the relief she seeks. R.C.
121.22(I)(1) affords a complete, beneficial, and speedy remedy. Therefore, it
satisfies the objective of a plain and adequate remedy at law and constitutes an
alternative remedy to mandamus relief in this action. In fact, relator has
concurrently filed an R.C. 121.22(I) action in common pleas court. Therefore,
she is not without an adequate legal remedy.

The majority rejects this argument on the basis that injunction is an
"extraordinary" remedy. In State ex rel. Pressley v. Indus. Comm. (1967), 11
Ohio St.2d 141, 40 O.O.2d 141, 228 N.E.2d 631, Chief Justice Taft disagreed
with the majority's conclusion that a mandatory injunction is an extraordinary
remedy that cannot be an adequate remedy in the ordinary course of the law. He
believed that a mandatory injunction would be sufficient reason for the court to
deny a writ of mandamus. Id. at 165-170, 40 O.O.2d at 156-159, 228 N.E.2d at
649-653. In cases decided prior to 1967, this court had denied a writ of
mandamus because the relator had an adequate remedy by way of mandatory
11

SUPREME COURT OF OHIO
injunction. See, e.g., State ex rel. Cent. Serv. Station v. Masheter (1966), 7 Ohio
St.2d 1, 36 O.O.2d 1, 218 N.E.2d 177; State ex rel. Adams v. Rockwell (1957),
167 Ohio St. 15, 3 O.O.2d 433, 145 N.E.2d 665. Likewise, this court affirmed or
reversed judgments of courts of appeals because the lower courts had or should
have denied a writ of mandamus when the relator had an adequate remedy by way
of mandatory injunction. State ex rel. Danford v. Karl (1967), 9 Ohio St.2d 79,
38 O.O.2d 203, 223 N.E.2d 602; State ex rel. Durek v. Masheter (1967), 9 Ohio
St.2d 76, 38 O.O.2d 202, 223 N.E.2d 601.
I
believe
that
Pressley was wrongly decided when it, in effect, overruled
these cases. The rationale of Pressley is illogical when injunctive relief is, in fact,
an adequate legal remedy as in this case. I would adopt the reasoning of Chief
Justice Taft's dissenting opinion as to why a statutory mandatory injunction is an
adequate legal remedy and correct the path where Pressley has led us. Where the
General Assembly has expressly provided for injunctive relief for a violation or
alleged violation of R.C. 121.22, I believe that a writ of mandamus is not
warranted.

R.C. 121.22(C) requires public officials to conduct official business at
meetings open to the public, and to prepare and maintain minutes of public
meetings. R.C. 121.22(I)(1) authorizes any person to bring an action to enforce
the provisions of R.C. 121.22. I believe that the General Assembly intended for
courts at the local level to adjudicate violations of R.C. 121.22(C). This is more
efficient, reliable, and fair. A case in which there is an alleged violation of R.C.
121.22 is very fact-oriented. I believe that a local tribunal would be more familiar
with and have a greater understanding of local reporting procedures, and thus
would be able to provide a more thorough and equitable remedy under R.C.
121.22(I). Unlike cases where a relator is seeking an order for a public body to
produce records, here the relator is merely asking that respondents be required to
prepare, file, and maintain minutes of meetings, and to hold all meetings in public
12

January Term, 2001
except for executive sessions. While I do not minimize the importance of
recordkeeping and of the mandates of R.C. 121.22, if we accept jurisdiction of
this mandamus action, then we will be asked to review every dispute, no matter
how minuscule, that arises about the adequacy of minutes. These issues are very
fact-driven and much more suited to the fact-finding role that the trial court plays.
I do not believe that this court should become a referee over the details and
accuracy of city council minutes.

The General Assembly had a purpose for enacting R.C. 121.22(I). If we
grant jurisdiction in every mandamus action that seeks relief under R.C.
121.22(I), then we are rendering meaningless the remedy afforded by R.C.
121.22(I) and allowing the parties to bypass the statutory remedy. The
extraordinary remedy of mandamus may not be utilized as a substitute or to
supplant another remedy where there is available to the relator an adequate
remedy in the ordinary course of the law.

I believe that mandamus, an extraordinary remedy, should be available
only when other procedures are incapable of affording relief. Here, relator has an
adequate remedy in the ordinary course of law that is complete, beneficial, and
speedy. Therefore, I respectfully dissent.
__________________

Alden, Taylor & Durkin, LLC, Randolph W. Alden and James R. Taylor,
for relator.

Manos, Martin, Pergram & Deitz Co., L.P.A., Dennis L. Pergram and
James M. Deitz, for respondents.
__________________

1.
R.C. 121.22(G) provides:
"* * * [T]he members of a public body may hold an executive session only after a majority of
a quorum of the public body determines, by a roll call vote, to hold an executive session and only
at a regular or special meeting for the sole purpose of the consideration of any of the following
matters:
13

SUPREME COURT OF OHIO

"(1) To consider the appointment, employment, dismissal, discipline, promotion, demotion, or
compensation of a public employee or official * * *. * * * If a public body holds an executive
session pursuant to division (G)(1) of this section, the motion and vote to hold that executive
session shall state which one or more of the approved purposes listed in division (G)(1) of this
section are the purposes for which the executive session is to be held, but need not include the
name of any person to be considered at the meeting."
2.
R.C. 121.22(I)(1) provides:

"Any person may bring an action to enforce this section. An action under division (I)(1)
of this section shall be brought within two years after the date of the alleged violation or
threatened violation. 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."
14