Supreme Court of Ohio Clerk of Court - Filed April 18, 2018 - Case No.

2018-0440

IN THE SUPREME COURT OF OHIO

STATE OF OHIO ex rel. Patricia Meade, )

)
) SUPREME COURT
Relator-Appellant, ) CASE NO. 2018-0440
)
-vs- ) Court of Appeals Case No. CA-16-105281
) (Eighth District)
VILLAGE OF BRATENAHL, et al., )
)
)
)
Respondents-Appellees. )

MEMORANDUM IN OPPOSITION TO JURISDICTION OF APPELLEES, VILLAGE

OF BRATENAHL & MARY BECKENBACH, JAMES PUFFENBERGER, ERIN SMITH,
GEOFFREY B.C. WILLIAMS, MARLA MURPHY & JOHN M. LICASTRO

Counsel for Appellees, Counsel for Appellant,

DAVID J. MATTY (0012335) CHRISTOPHER P. FINNEY (0038998)

Counsel of Record BRIAN C. SHREVE (0088980)
SHANA A. SAMSON (0072871) Finney Law Firm LLC
MARK B. MARONG (0082865) 4270 Ivy Pointe Blvd., Suite 225
Matty, Henrikson & Greve Cincinnati, Ohio 45245
55 Public Square, Suite 1775 (513) 943-6655
Cleveland, Ohio 44113 chris@finneylawfirm.com
(216) 621-6570 brian@finneylawfirm.com
(216) 621-1127—Fax
dmatty@mhglegal.com
ssamson@mhglegal.com
mmarong@mhglegal.com
 TABLE OF CONTENTS
Page

Statement of Appellees’ position as to why this case is not a case of public or great
general interest and why this case does not involve a substantial constitutional
question…………………………………………………………………………………1

Statement of the Case and Facts………………………………………………………..3

Arguments Contra Appellant’s Propositions of Law…………………………………..5

Argument Contra Appellant’s Proposition of Law No. 1………………………5

Argument Contra Appellant’s Proposition of Law No. 2………………………6

Argument Contra Appellant’s Proposition of Law No. 3………………………8

Argument Contra Appellant’s Proposition of Law No. 4………………………11

Argument Contra Appellant’s Proposition of Law No. 5………………………11

Argument Contra OCOG’s Proposition of Law No. 1………………………….13

Argument Contra OCOG’s Proposition of Law No. 2………………………….14

Conclusion………………………………………………………………………………15

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 I. STATEMENT OF APPELLEES’ POSITION AS TO WHY THIS CASE IS NOT
A CASE OF PUBLIC OR GREAT GENERAL INTEREST AND WHY THIS
CASE DOES NOT INVOLVE A SUBSTANTIAL CONSTITUTIONAL
QUESTION

This Court has defined “public or great general interest” as “novel questions of law or

procedure (which) appeal not only to the legal profession but also to this Court’s collective interest

in jurisprudence.” Nobel v. Colwell (1989), 44 Ohio St.3d 92. Additionally, discretionary appeals

involving “public or great general interest” involve substantial and complex topics of statewide

interest.” DeRolph v. State (1997), 78 Ohio St.3d 192. Though framed by the Appellant as

implicating the vital interest of the public to know and understand the actions of its elected

officials, the impact of this case affects one person—Appellant Patricia Meade. This case does

not involve novel questions of law or complex topics of statewide interest. Instead, Appellant asks

this Court to ignore a common sense interpretation and enforcement of the Open Meetings Law

(“OMA”). The decision of the Eighth District Court of Appeals upholds the law and prevents

expanded and unrealistic results. Further, there is no substantial constitutional question presented.

Appellant first argues that the Appellees violated or threatened to violate the OMA at the

January 21, 2015 Bratenahl Council meeting when the Bratenahl Councilmembers used “secret

written ballots” to elect the president pro tempore. Yet, the injunctive relief sought by Appellant

cannot be carried into effect because the president pro tempore’s term at issue ended before

Appellant filed her Complaint and therefore the request for injunctive relief is moot. Therefore,

there is nothing for this case to consider regarding the Appellant’s first argument.

Furthermore, the Eighth District properly determined Appellant could not establish her

burden by a preponderance of the evidence that Appellees violated or threatened to violate the

OMA on January 21, 2015. Appellant and the Ohio Coalition for Open Government (“OCOG”),

through its amicus brief, try to pique this Court’s interest by contending that the Eighth District

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“concluded that a public body may conduct all public business through secret-ballot voting without

running afoul of the Open Meetings Act.” However, the Eighth District decision reads, “because

the votes were cast in open session and were made public record, the votes were not ‘secret’ like

the votes in the [Ohio Attorney General’s 2011] opinion.” Thus, the Eighth District properly

differentiated the Bratenahl Council’s contemporaneous vote by ballot on January 21, 2015 from

the vote analyzed in the 2011 Ohio Attorney General opinion. There is no case law from any Ohio

court on the issue of voting by secret ballot in a public meeting or, more specifically, on the issue

of contemporaneous ballots made available to the public after the vote. Furthermore, any proposed

expansion of the OMA is properly the domain of the legislature, not the courts.

OCOG attempts create a conflict between the Eighth District decision and the decision in

Mahogg v. Stickle, 5th Dist. Licking No. 97 CA 104, 1998 WL 5163311 (Apr. 8, 1998), aff’d after

remand, 5th Dist. Licking No. 98CA00102, 1999WL 173275 (Mar. 15, 1999). OCOG argues that

“whispered proceedings are no different from the secret votes at issue here.” However, in Mahogg,

the “whispered proceedings” were never made part of the record and the trustees intended to

conceal information from the public. Here, the ballots were cast in open session, the results of the

votes were read in open session and the handwritten ballots were made part of the public record

without any intent to conceal information from the public. Thus, there is no conflict between the

holding in Mahogg and the Eighth District’s decision. Moreover, the purpose of the handwritten

ballot utilized by Bratenahl Council was not to conceal, but rather to assure comradeship among

the elected members of a very small community and allow the councilmembers to vote

contemporaneously to prevent potential influence and public pressure.

Additionally, Appellant seeks to have this Court review very fact specific issues involving

the Finance Committee minutes and August 19, 2015 executive session that are not critical to any

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statewide interest. Appellant argues that the Appellees violated or threated to violate the OMA

because the Finance Committee’s meeting minutes failed to contain sufficient facts and

information to permit the public to understand and appreciate the rationale behind the committee’s

actions. Appellant also asserts that the Appellees conducted public business of the Council in an

illegal executive session and/or entered into executive session in violation of the requirements of

the OMA. These narrow issues were resolved by the Eighth District and have also been resolved

by this Court and therefore do not present any issue of public or great general interests.

Appellees respectfully request that this Court decline jurisdiction because it is not a case

of public or great interest and does not involve a substantial constitutional question.

II. STATEMENT OF THE CASE AND FACTS

On January 25, 2016, Patricia Meade and MORE Bratenahl filed a one count Complaint in

alleging that the Village of Bratenahl and councilmembers Mary Beckenbach, James F.

Puffenberger, Erin E. Smith, Geoffrey B.C. Williams and Marla Murphy violated the OMA. The

Complaint requested injunctive relief pursuant to R.C. 121.22(I) contending that the Appellees

violated or threatened to violate the OMA by using secret ballots to conduct official business when

electing the president pro tempore of the Bratenahl Village Council on January 21, 2015. Appellant

filed an Amended Complaint adding three additional counts and naming Bratenahl Mayor, John

Licastro. Count II of the Amended Complaint requested injunctive relief pursuant to R.C. 121.22(I)

contending that the Appellees violated or threatened to violate the OMA by failing to keep and

maintain minutes of the Finance Committee of the Village Council that comply with the OMA for

the meetings held on January 19, 2016, February 16, 2016, March 14, 2016 and April 18, 2016. In

Counts III and IV, Appellant alleged the Village Council conducted public business of the Council

in illegal executive sessions and/or entered into executive session in violation of the requirements

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of the OMA on August 19, 2015 (Count III) and November 19, 2014 (Count IV). Appellant

dismissed MORE Bratenahl as a party after refusing to respond to discovery requests regarding

the corporate structure, funding and past publication history of the alleged publication and

dismissed Count IV.

Appellant sought a declaratory judgment that the Appellees violated or threatened to

violate the OMA and sought an injunction prohibiting Appellees from conducting any votes by

secret ballot, unless authorized by Ohio law, and mandating all Appellees to maintain and prepare

accurate council meeting minutes. Appellant further sought a civil forfeiture fee of $500 for each

distinct violation or threatened violation of the OMA, as well as court cots and attorney fees. The

trial court granted Appellees’ Motion for Summary Judgment and denied Appellant’s Motion for

Summary Judgment. Appellant appealed to the Eighth District Court of Appeals.

This case was decided on summary judgment, pursuant to Civ.R. 56(C). As an appellate

court reviewing summary judgment motions, the Eighth District stood in the shoes of the trial court

and reviewed the summary judgment motions utilizing the same standard and evidence as the trial

court. A review of the well-reasoned decision of the Eighth District regarding the actions of the

Appellees leaves no doubt that the Court of Appeals reached the appropriate determination. See

State of Ohio ex rel. More Bratenahl, et al vs. Village of Bratenahl, Ohio, et al., 2017-Ohio-497.

The Eighth District properly applied established legal precedent in their analysis of the evidence

and reached the legally valid, common sense conclusion that Appellees did not violation the OMA.

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 III. ARGUMENTS CONTRA APPELLANT’S PROPOSITIONS OF LAW

A. Argument Contra Appellant’s Proposition of Law No. 1.

Proposition of Law No. 1:
Pursuant to the Open Meetings Act (R.C. § 121.22), a statutory injunction shall
issue upon proof of either: (i) a violation of any requirement of the act; or (ii) a
threatened violation of any requirement of the act.

A party who files a complaint alleging 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; that is, the party

asserting a violation of OMA has the burden of persuasion by a preponderance of the evidence.

Although the OMA is construed liberally, the burden of persuasion never leaves the party who is

alleging a violation. See State ex rel. Hardin v. Clermont County Bd. of Elections, 2012-Ohio-2569

(Ohio Ct. App., Clermont County 2012). Further, “the 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, ¶ 28, 16 N.E.3d 573. Appellant is unable to

establish her burden of proof that Appellees violated the letter or spirit of the OMA.

In fact, the record shows that the initial complaint was not filed until January 26, 2016,

after Mr. Puffenberger’s term ended and the uncontested re-appointment of Mr. Puffenberger as

president pro tempore was publicly voted upon on January 20, 2016. As such, the relief sought by

Appellant in Count I cannot be carried into effect because the president pro tempore’s term at issue

has ended and is therefore moot. An issue is moot “when it has no practical significance and,

instead, presents a hypothetical or academic question.” See State v. Moore, 4th Dist. Adams No.

13CA987, 2015-Ohio-2090, ¶7; Brenneman Bros. v. Allen Cty. Cmmrs., 3d Distr. Allen No. 1-14-

15, 2015-Ohio-148, ¶40, fn. 2. Appellant’s request for injunction in Count I cannot be awarded

because the issue is moot, as are the remedies which are contingent upon an injunction being

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entered. Even if the Court finds that the issue is ripe, Appellant failed to establish her burden of

proof that she is entitled to injunctive relief as to any of her claims for violation of the OMA.

B. Argument Contra Appellant’s Proposition of Law No. 2.

Proposition of Law No. 2:
Members of a public body violate or threaten to violate the open meeting act
when they vote on matters of public business through the use of secret ballots.

Appellant alleges that Appellees violated the OMA at the Village Council meeting on

January 21, 2015 when the councilmembers used handwritten ballots to elect the president pro

tempore. On January 21, 2015, the Village Council appointed Mr. Puffenberger as president pro

tempore for a one-year term in accordance with Section 121.05 of the Bratenahl Codified

Ordinances. Mr. Puffenberger served as president pro tempore for one year, until December 31,

2015. The Village of Bratenahl is a statutory village and there is no Ohio statute or case law that

spells out how a village council should conduct a vote for a president pro tempore. Thus, the voting

on January 21, 2015 was performed in accordance with Bratenahl Village Council’s past practice

for election of president pro tempore and the results of the contemporaneous written ballots were

announced publicly and were available for public inspection after the vote.

Contrary to Appellant’s argument, the purpose of the handwritten ballot was not conceal,

but rather, to vote contemporaneously. A contemporaneous vote by handwritten ballot assures

comradeship and precludes the potential public pressure resulting from hearing the other

councilmember’s votes. After the vote took place, the handwritten votes from the January 21, 2015

meeting were maintained by the Village. However, Appellant did not challenge the appointment

of Mr. Puffenberger as president pro tempore for his 2015 term or request copies of the ballots

until the underlying lawsuit was filed on January 25, 2016 after Mr. Puffenberger’s term as

president pro tempore ended. The Village provided the Appellant with a copy of the handwritten

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ballots, maintained by the Village, marked by the members of the Village Council to the best of

their recollection in response to Appellant’s discovery requests in March 2016, over one year after

the vote took place. As such, there is no evidence that the Appellees intended to engage in secret

deliberations or conceal information from the public.

Appellant relies almost entirely upon Ohio Attorney General Opinion No. 2011-038 for the

proposition that Village Council violated the OMA by utilizing handwritten votes on January 21,

2015, but this Opinion does not apply to a statutory village council. See 2011 Ohio Ap. Atty Gen.

No. 38. In issuing the referenced opinion, the Ohio Attorney General was specifically asked

whether it was permissible for the Ohio Board of Education to vote by secret ballot in an open

meeting without any mention as to whether the ballots were made available or produced to the

public. See id. The Attorney General concluded that “the State Board of Education could not vote

in an open meeting by secret ballot.” Id. By its explicit language, the opinion applied only to the

State Board of Education. The 2011 Opinion overruled a 1980 Attorney General Opinion holding

that final voting of a county central committee must be held in a public vote, while allowing secret

ballots when filling vacancies for publicly elected offices. See 1980 Op. Atty Gen. No. 80-083

(syllabus, paragraph 4). Accordingly, the two Attorney General Opinions regarding secret ballots

are limited to the use of secret ballots by county central committees and the Ohio Board of

Education, not the election of a president pro tempore by a statutory village council. Further,

neither Opinion addresses a situation where the handwritten ballots were made public. Even

assuming the 2011 Attorney General opinion applies in this case, “Attorney General Opinions are

not binding on courts; at best, they are persuasive authority.” State ex rel. VanDyke v. Pub.

Employees Retirement Bd., 99 Ohio St.3d 430, 2003 Ohio 4123, P40.

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 Furthermore, there is no case law from any Ohio court on the issue of voting by secret

ballot in a public meeting or, more specifically, on the issue of contemporaneous ballots made

available to the public after the vote. Similarly, the state legislature has taken no action to legislate

regarding the use of secret ballots in public meetings. In fact, R.C. 731.45 authorizes a legislative

authority of a municipal corporation to determine its own rules and in this matter, Village Council

followed its own past practice of using a contemporaneous vote by ballot to elect president pro

tempore to a one-year term.

The plain and unambiguous language of R.C. 121.22(C) does not provide for any particular

voting procedure, therefore, the Court should not insert language into the statute. It is established

Ohio law that a court shall apply an unambiguous statute in a manner consistent with the plain

meaning of the statutory language and may not add or delete words. See Portage County Bd. of

Comm’rs v. City of Akron, 109 Ohio St.3d 106, 2006 Ohio 954, p52. Adopting Appellant’s

reasoning would require this Court to expand the OMA and any proposed expansion of the OMA

is properly the domain of the legislature, not the courts. For this reason, the Eighth District properly

determined that the vote on January 21, 2015 did not violate the OMA.

C. Argument Contra Appellant’s Proposition of Law No. 3.

Proposition of Law No. 3:
Members of a public body violate their duty to keep an maintain full and accurate
meeting minutes when they rely upon extraneous materials or documents to fully
and accurately reflect what occurred at a public meeting.

The minutes of the Finance Committee at issue contain sufficient facts and information to

permit the public to understand and appreciate the issues discussed at the Finance Committee

meetings at issue and the recommendations to Village Council.

For purposes of R.C. 121.22(C), courts have determined minutes to mean “a series of brief

notes taken to provide a record of proceedings…an official record composed of such notes.”

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Mahajan v. State Med. Bd. of Ohio, 10th Dist. Nos. 11AP-421 and 11AP-422, 2011-Ohio-6728

(quoting White v. Clinton Co. Bd. of Commrs., 76 Ohio St.3d 416). There is no requirement for

minutes to be a verbatim transcript of the proceedings. See State ex rel. Citizens for Open,

Responsive & Accountable Gov’t v. Register, 116 Ohio St.3d 88, 2007-Ohio-5542 (2007). An

analysis of the Finance Committee minutes at issue show that they are not limited to a mere

recounting of the body’s roll call votes. The minutes provide sufficient information for the public

to understand and appreciate the rationale behind the public body’s discussions.

Relator argues that the Finance Committee minutes in this case are insufficient according

to White v. Clinton County Bd. of Comm’rs, 1996-Ohio-380, 76 Ohio St.3d 416, 423 and State ex

rel. Long v. Cardington Vill. Council, 2001-Ohio-130 92 Ohio St.3d 54. Yet, for the reasons set

forth below and in the Eighth District’s decision, this argument is incorrect.

In White, the complaint sought a writ of mandamus compelling the Clinton County Board

of Commissioners “to prepare complete and accurate minutes of all Board policies, decisions,

procedures and essential transactions.” White, supra. The facts in White are significantly more

egregious than those in this case. For instance, in the White case, the minutes failed to document

new policies adopted by the Board and were missing a page. While this Court in White held that

the Board of Commissioners violated the OMA, the opinion makes clear that courts are not in the

business of “micro-managing the public record-keeping procedures of local governments” and

“public bodies should be trusted with a certain degree of latitude in the preparation of minutes and

other records of their proceedings.” Id. In addition, this Court refrained from setting any specific

requirements for complying with R.C. 121.22 for keeping minutes. See id. Thus, the White case

and its underlying facts are distinguishable from the instant case.

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 The Appellant also relies upon this Court’s decision in State ex rel. Long v. Council of the

Village of Cardington. See Long, supra. In Long, this Court held that the village had a duty to

prepare, file, and maintain full and accurate minutes for council meetings, and to make them

available for public inspection and found the village to be in violation of the OMA. See id. Unlike

the facts in the Long case, Appellant has made no allegation that the minutes of the Finance

Committee were not promptly prepared, filed, maintained and/or open to public inspection. See

R.C. 121.22(C). In contrast to the facts in this matter, Long involved a challenge to the minutes of

a full village council, not a village council committee. There is an obvious distinction between

legislative acts of a village council and acts that are administrative or ministerial in nature, like

those of a recommending committee of a village council. According to Section 121.08 of the

Bratenahl Codified Ordinances, the Finance Committee “may consider and recommend on

budget, assessments, taxes, fees, transfer of property to or from the Village, and other financial

matters.” (emphasis added). Thus, the Finance Committee is limited to the administrative functions

of considering items and making recommendations to the Village Council on financial matters.

The Bratenahl Village Council is the sole legislative and policy-making body of the Bratenahl

Village government and legislative action regarding the Finance Committee’s recommendations

are adopted by Village Council as a whole on the record.

Furthermore, in analyzing the Finance Committee minutes at issue along with the

transcribed minutes of the Village Council meetings immediately following the Committee

meetings, it is apparent that the minutes provide an accurate record of the Committee’s

proceedings, recommendations and the Council’s actions on the same. The Finance Committee

minutes at issue are self-explanatory by referencing the ordinance and resolution numbers being

considered for recommendation to Village Council, identification of each motion, some discussion

10
and the votes of the Committee members. The details reflect the discussions which took place

relative to each meeting allowing the public to understand and appreciate the rationale behind the

Council’s decisions. See State ex rel. Dunlap v. Violate Twp. Bd. of Trustees, 2013-Ohio-2295.

While the Finance Committee minutes are sufficient on their face, Appellees utilized the

Village Council minutes to demonstrate Appellees’ actions were in compliance with the OMA.

Based upon the applicable legal principles, Appellant is unable to establish her burden by a

preponderance of the evidence that the Finance Committee Meeting minutes at issue violate or

threaten to violate the OMA.

D. Argument Contra Appellant’s Propositions of Law No. 4 and 5.

Proposition of Law No. 4:
Members of a public body violate or threaten to violate the open meetings act when
they fail to conduct a roll call vote to enter into executive session.
Proposition of Law No. 5:
Members of a public body violate their duty to keep and maintain full and accurate
meeting minutes the minutes fail to indicate the conducting of a roll call vote or
how the members voted if such a vote was actually conducted.

Notwithstanding Appellant’s arguments to the contrary, Appellees identified in a motion

to enter executive session the specific purpose for the session, conducted a roll call vote on said

motion and prepared, filed and maintained full and accurate minutes for the August 19, 2015

meeting.

The rule is generally accepted that, in the absence of evidence to the contrary, public

officers, within the limits of the jurisdiction conferred by law, will be presumed to have properly

performed their duties and not to have acted illegally but regularly and in a lawful manner. See

State ex rel. Shafer v. Ohio Turnpike Com., 159 Ohio St. 581, 590, 113 N.E.2d 14 (1953); see also

Thomas v. Bd. of Trustees of Liberty Twp., 5 Ohio App.3d 265, 268, 215 N.E.2d 434 (7th Dist.

1966) (finding that township trustees were presumed to have followed the OMA.) The presumption

11
must be rebutted with actual evidence, and not bare allegations. See In re Application of Am.

Transm. Sys., Inc., 125 Ohio St.3d 333, 2010-Ohio-1841, §23, 928 N.E.2d 427.

In an action brought under R.C. 122.22, the relator initially has the burden to show that

there was a violation or threatened violation of the OMA. Once the relator demonstrates an alleged

violation, the burden then shifts to the public body to produce evidence that the challenged activity

was in compliance with the OMA. Despite Appellant’s argument to the contrary, Appellees are

not using the audiotape of the August 19, 2015 meeting or Mr. Blazey’s notes to “rectify

inadequate minutes.” The audiotape and Mr. Blazey’s notes are evidence that the challenged

activity was in compliance with the OMA. As evidenced by the audio recording of the August 19,

2015 meeting recorded by Appellant, the motion and roll call vote to hold executive session took

place in open session before the court reporter began transcribing the record. The roll call vote is

also reflected in the notes of Leon Blazey, Village Clerk, provided to Appellant during discovery.

In addition, the official minutes for the August 19, 2015 meeting show the Mayor asked

that the record reflect that Council went into executive session to talk about acquisition of land

and threatened litigation. The purchase of property and conferences with attorneys are permissible

discussion topics for executive session according to R.C. 121.22(G)(2) and (3). The Mayor states

that the motion to enter executive session was made by Mr. Puffenberger and seconded by Ms.

Murphy. The Mayor also states that Mr. Puffenberger made the motion to return to the public

session of Council and the motion was seconded by Ms. Bacci. Appellees’ citation to an

appropriate discussion topic for executive session on the foregoing date satisfies the statutory

requirements for entering an executive session. See State ex rel. Dunlap v. Violate Twp. Bd. of

Trustees, 2013-Ohio-2295., P 22. The Village Council properly entered into executive session on

August 19, 2015 in compliance with the OMA, and the minutes properly reflect such action.

12
 As such, Appellant is unable to establish her burden by a preponderance of the evidence

the Village Council entered into an illegal executive session or the minutes of the August 19, 2015

Village Council meeting were incomplete in violation of the OMA.

E. Argument Contra OCOG’s Proposition of Law No. 1.

Proposition of Law No. 1
The Eighth District erred to the detriment of free and open government and the
Ohio public in accepting Appellees’ belated and incomplete corrections to their
violations of the Open Meetings Act’s mandate of public meetings.

The Ohio Coalition for Open Government (“OCOG”) also filed a memorandum of amicus

curiae in support of jurisdiction. However, the commentary contained in the amicus brief mimics

the Appellant’s brief.

In OCOG’s first Proposition of Law, OCOG focuses its argument on the assertion that

Bratenahl only publicized the ballots after the lawsuit was filed, but OCOG conveniently leaves

out the pertinent fact that Appellant never requested copies of the ballots before filing this lawsuit.

The Village provided the Appellant with a copy of the handwritten ballots, maintained by the

Village, marked by the members of the Village Council to the best of their recollection in response

to Appellant’s discovery requests in March 2016, over one year after the vote took place. OCOG

calls attention to irregularities in the ballots provided to the Appellant during discovery, but these

irregularities were never questioned or challenged by Appellant. 1 Furthermore, the irregularities

do not negate the fact that the votes were part of the record.

In general, OCOG’s commentary on the January 21, 2015 meeting duplicates Appellant’s

reliance on the 2011 Ohio Attorney General Opinion and attempts to create a conflict between the

Eighth District decision and the decision in Mahogg, supra. Yet, as discussed in this Appellees’

1
As Councilwoman Laura Bacci was not named in the lawsuit, her handwritten vote was not marked during
discovery, thus leaving one vote.

13
position statement as to why this case is not a case of public or great general interest above, there

is no conflict between the holding in in Mahogg and the decision of the Eighth District because

the “whispered proceedings” in Mahogg were never made part of the record and the trustees clearly

intended to conceal information from the public. Here, the contemporaneous ballots were

handwritten in open session, read in open session and made part of the public record without any

intent to conceal information from the public.

F. Argument Contra OCOG’s Proposition of Law No. 2

Proposition of Law No. 2

The Eighth District erred to the detriment of free and open government and the
Ohio public in creating an exception to the Open Meetings Act whereby a separate
public body may later rectify another public body’s failure to maintain complete
meeting minutes.

Despite OCOG’s argument in support of its Proposition of Law No. 2, the Eighth District

opinion did not create any exception to the OMA. This argument fails for the reasons set forth

above in response to Appellant’s Propositions of Law Nos. 4 & 5. Appellees did not use

“extraneous” evidence to “rectify inadequate minutes.” The official minutes of the Finance

Committee meetings at issue in addition to the official minutes of the August 19, 2015 Village

Council meeting complied with the OMA on their face. The submission of additional evidence

including the transcripts provided by Appellant, was submitted as evidence that the challenged

activity was in compliance with the OMA. The Eighth District properly applied established legal

precedent in their analysis of the evidence and reached the common sense conclusions that

Appellees did not violate the OMA regarding the Finance Committee meeting minutes or the

August 19, 2015 Village Council meeting minutes.

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 IV. CONCLUSION

Neither the Appellant nor the Amicus raise any issue of merit on this record, let alone one

of public or great interest. In the absence of any substantial constitutional issues or issues of public

or great general interest, Appellant’s appeal should not be allowed. Accordingly, the Eighth

District Court of Appeals did not err in affirming the trial court’s order granting Appellees’ motion

for summary judgment.

Respectfully submitted,

/s/ Shana A. Samson

DAVID J. MATTY (0012335)
SHANA A. SAMSON (0072871)
MARK B. MARONG (0082865)
Matty, Henrikson & Greve
55 Public Square, Suite 1775
Cleveland, Ohio 44113
(216) 621-6570
(216) 621-1127—Fax

Attorneys for Appellees,

Village of Bratenahl, Ohio, et al.

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 CERTIFICATE OF SERVICE

The undersigned hereby certify that a true copy of the foregoing Memorandum in

Opposition to Jurisdiction of the Appellees, Village of Bratenahl, et al, was filed and served

electronically this 18th day of April 2018, upon the following:

Christopher P. Finney
Brian C. Shrive
Finney Law Firm, LLC
4270 Ivy Pointe Blvd., Suite 225
Cincinnati, Ohio 45245

Monica L. Dias
Ryan W. Goellner
Frost Brown Todd LLC
3300 Great American Tower
301 East Fourth Street
Cincinnati, Ohio 45202

/s/ Shana A. Samson

Shana A. Samson

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