March 28, 2018
Representing a Cuyahoga County community newsletter publisher, Finney Law firm has filed an appeal of the recent Eighth District Court of Appeals’ ruling in State ex rel. Meade v. Village of Bratenahl, et al.Case No. 2018-0440
Community newsletter publisher brings suit
In 2016, Pat Meade, publisher of MOREBratenahl a community newsletter focused on the community of Bratenahl, Ohio, in Cuyahoga County, brought suit against the Village Council for numerous violations of the Ohio Sunshine Law (R.C. 121.22).
Meade’s suit focused on secret ballot voting by the council as well as inaccurate and insufficient minutes by the council and its finance committee. The case presented a somewhat unaddressed issue of the Sunshine Law: can public bodies vote by secret ballot?
The almost universally instinctive answer is “No!” And indeed, the only caselaw or other authority on the subject also came down against secret ballot voting. In 2011, the Ohio Attorney General issued an opinion concluding that the “‘open meetings’ requirement of R.C. 121.22 is not satisfied when members of a public body . . . vote by secret ballot.” 2011 Ohio Op. Atty Gen. No. 38. And that in fact, “[c]onstruing R.C. 121.22 as permitting a public body to vote by secret ballot also produces an unreasonable and absurd consequence.” Id.
Just twelve days prior to the issuance of the 2011 Attorney General’s Opinion, the Hamilton County Common Pleas Court issued its own ruling on the question. Again, finding that the statutory requirement that the Sunshine Law be “liberally construed to require public officials to take official action and conduct all deliberations only in open meetings encompass both discussion and voting.” Forest Hills Journal v. Forest Hills Local School Dist. Bd. of Edn., C.P. No. A-1100109, 2011 Ohio Misc. LEXIS 799, at *4 (Oct. 6, 2011).
Secret ballots in Bratenahl
The Village Council, at its January 2016 meeting voted by secret ballot in choosing their president pro tempore, even after one member questioned the legality of a secret ballot vote.
Meade, brought suit, and, during discovery the Village turned over copies of the ballot slips – appended with post-it-notes identifying the councilmember to whom each slip belonged. But in a bizarre set of circumstances, the appended ballots suggest that one member voted twice in the second round; and one ballot in each of the other rounds is unidentified.
Additionally, at one meeting, the Village entered into executive session without the minutes indicating the roll call vote; and the minutes of the council’s finance committee were simply recitations of the motions and votes, with nothing of the substance of the discussions.
Trial and Appellate Court’s response
The Cuyahoga County Common Pleas Court, in a un-detailed decision, simply granted summary judgment to the Village on all claims.
Plaintiff appealed the decision to the Cuyahoga County Court of Appeals, which affirmed the trial court’s decision, declaring that a secret ballot vote isn’t a secret ballot vote if the public body keeps copies of the ballot slips and later produces them as part of discovery in a lawsuit; and that the minutes of one public body can be used to supplement the minutes of a different public body – and without notice to the public.
Simply put, the Court of Appeals significantly altered the landscape of Ohio Sunshine Law, and, from Plaintiff’s perspective, in a manner inconsistent with the statute and Ohio Supreme Court precedent.
Plaintiff petitions Ohio Supreme Court for review of the case
On March 23, Finney Law Firm filed its notice of appeal and memorandum in support of jurisdiction wtih the Ohio Supreme Court. Then on March 26, the Ohio Coalition for Open Government filed an amicus brief urging the Court to accept jurisdiction and review the Cuyahoga County Court of Appeals’ decision. Notably, the Ohio Supreme Court only accepts approximately 7% of all “jurisdictional appeals” such as this case. So even getting the case heard by the Court is a hurdle. Read our memo here, and the OCOG memo here.
Finney Law Firm has a proud history of advocating for open government and we are cautiously optimistic that the Ohio Supreme Court will accept jurisdiction in this case, and that we will be able to once again vindicate the people’s right to know what its government is doing.