NAILAH K.

BYRD
CUYAHOGA COUNTY CUERK OF COURTS
1200 Ontario Street
Cleveland, Ohio 44113

Court of Appeals

REPUY BRIEF OF APPEUUANT FIFED

March 12, 2017 23:04

By: CURT C. HARTMAN 0064242

C onfirmation Nbr. 1010657

STATE OF OHIO EX REL. MORE BRATENAHL, ET AL. CA 16 105281

vs.
Judge:
VILLAGE OF BRATENAHL, OHIO, ET AL.

Pages Filed: 16

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 Case No. CA-16-105281

In the Court of Appeals

Eighth Appellate District
Cuyahoga County, Ohio

STATE OF OHIO e* rel. PATRICIA MEADE,

Relator-Appellant,

v.

VILLAGE OF BRATENAHL, et al.,

Defendants-Appellees.

APPELLANT’S REPLY BRIEF

Counselfor Appellant: Counselfor Appellees:

Curt C. Hartman (0064242) David J. Matty (0012335)
The Law Firm of Curt C. Hartman Shana A. Samson (0072871)
7394 Ridgepoint Drive, Suite 8 Mark B. Marong (0082865)
Cincinnati, OH 45230 Matty, Henrikson & Greve
(513)379-2923 55 Public Square, Suite 1775
hartmanlawfrm@fuse. net Cleveland, OH 44113
(216) 621-6570
Christopher P. Finney (0038998) dmatty@mhglegal. com
Finney Law Firm LLC ssamson@mhglegal. com
4270 Ivy Pointe Blvd., Suite 225 mmarong@mhglegal. com
Cincinnati, OH 45245
(513) 943-6655
chris@finneylawfirm. com

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 TABLE OF CONTENTS

Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
APPELLANT’S REPLY MERIT BRIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
I. Pronouncements as to the rationale for the trial court’s ruling or what it
considered are misplaced as the trial court’s ruling was simply a single-lined
entry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
II. The Open Meetings Act does not have a mens rea requirement and, thus, whether
a public official actually intended to violate the Act is irrelevant . . . . . . . . . . . . . 1
III. CONDUCTING PUBLIC BUSINESS BY SECRET-BALLOT VOTING
(Count I). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
A. Relator’s claim to ensure public business is not conducted by secret-ballot
voting is not moot. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
B. Conducting public business of a legislative body by secret-ballot voting
violates the Open Meetings Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
IV. FINANCE COMMITTEE MEETING MINUTES (Count II). . . . . . . . . . . . . 7
A. The requirements of the Open Meetings Act apply equally to a village
council and to the committees of a village council. . . . . . . . . . . . . . . . . . . 7
B. Simply listing the content of motions and votes in minutes, without sufficient
facts and information to permit the public to understand and appreciate the
rationale behind the decisions, does not satisfy the requirements of the Open
Meetings Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
V. EXECUTIVE SESSION - MOTION, VOTE and MINUTES (Count III). . . . . . 11
A. Appellees implicitly admit that, at a minimum, the minutes fail to indicate
the content of the motion and the roll call vote. . . . . . . . . . . . . . . . . . . . . 11
VI. CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Certificate of Service. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

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 TABLE OF AUTHORITIES

Case Citations
American Guaranty Co. v. Supply Co.,
115 Ohio St. 524, 155 N.E. 127 (1926). . . . . . . . . . . . . . . . . . . . . . . . . . 5
Berner v. Woods,
2007-0hio-620 (9th Dist. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8-9
Doran v. Northmont Bd. ofEd.,
153 Ohio App.3d 499, 794 N.E.2d 760, 2003-0hio-4084 (2d Dist. 2003). . . . . . 4
Lame, Inc. v. E.G. Systems, Inc.,
2015-Ohio-686 (8th Dist. 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Marbury v. Madison,
5U.S.(lCranch) 137 (1803). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Mishr v. Poland Bd. ofZoning Appeals,
76 Ohio St.3d 238, 667 N.E.2d 365, 1996-0hio-400 (1996)). . . . . . . . . . . . . 6-7
State ex rel. American Civil Liberties Union v. Cuyahoga Cty. Bd. of Comm’rs
128 Ohio St.3d 256, 943 N.E.2d 553, 2011-Ohio-625 (2011). . . . . . . . . . . . . 8
State ex rel. Cincinnati Post v. Cincinnati,
76 Ohio St.3d 540, 668 N.E.2d 903, 1996-Ohio-372 (1996). . . . . . . . . . . . . . 5, 8
State ex rel. Long v. Cardington Village Council,
92 Ohio St.3d 54, 748 N.E.2d 58, 2001-0hio-130 (2001). . . . . . . . . . . . . . . 8 - 11
State ex rel. Patrick Bros. v. Putnam Cty. Bd. of Comm ’rs,
2014-Ohio-2717(3dDist.2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11
State ex rel. Randles v. Hill,
66 Ohio St.3d 32, 607 N.E.2d 458, 1993-Ohio-204 (1993). . . . . . . . . . . . . . . 1
Swafford v. Norwood Bd. ofEd.,
14 Ohio App.3d 346, 471 N.E.2d 509 (1st Dist. 1984) . . . . . . . . . . . . . . . . . 10
White v. Clinton Cty. Bd. of Comm’rs,
76 Ohio St.3d 416, 667 N.E.2d 1223, 1996-Ohio-380 (1996). . . . . . . . . . . . . 9
White v. King,
147 Ohio St.3d 74, _ N.E.2d 2016-0hio-2770 (2016). . . . . . . . . . . . . . . 5, 8

Court Rules
Ohio R. App. P. 12(B). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Statutory Provisions
Open Meetings Act / R.C. § 121.22 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
R.C. § 121.22(I)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Ohio Attorney General Opinions

Ohio Att’y Gen’l Opin. No. 2011-038 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

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 APPELLANT’S REPLY BRIEF

I. Pronouncements as to the rationale for the trial court’s ruling or what it considered
are misplaced as the trial court’s ruling was simply a single-lined entry.

Even though a trial court’s ruling on cross-motions for summary judgment is subject to

de novo review, Lame, Inc. v. E.G. Systems, Inc., 2015-Ohio-686 |13 (8th Dist.), Appellees

wrongfully intimate some deference should be shown to the trial court’s ruling or what evidence

was actually considered by the trial court. See, e.g, Appellees Brief, at 4 (“exhibits were

appropriately considered by the trial court”). Yet, it must be noted that the trial court engaged in

no analysis or reasoning whatsoever in its ruling; instead, the trial court disposed of cross­

motions for summary judgment in a single-line entry with no reasoning, explanation, etc., and

without even addressing directly the Motion to Strike. See Appellant’s Brief, at 17 n.3. Thus, it is

important for this Court to examine de novo the summary-judgment record and consider the

proper summary-judgment evidence presented to the trial court.

II. The Open Meetings Act does not have a mens rea requirement and, thus, whether a
public official actually intended to violate the Act is irrelevant.

Initially (and for the first time on appeal), Appellees contend that the trial court properly

granted summary judgment in their favor on all counts alleging violations the Open Meetings

Act because “[t]here is absolutely no evidence in the record that there was any intent by the

Respondents” to violate the Act. Appellees ’ Brief, at 3. But the Ohio Supreme Court has held

that “[i]ntent...is not a consideration in determining compliance with R.C. 121.22(C), which

broadly requires that ‘[a]ll meetings of any public body...be ...open to the public at all times.’”

State ex rel. Randles v. Hill, 66 Ohio St.3d 32, 607 N.E.2d 458, 1993-Ohio-204 (1993). And this

is further reinforced by the language of the Act itself as it does not contain a mens rea

requirement - all that is required is a violation or threatened violated. Thus, Appellees’ present

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 argument concerning whether they intentionally violated Act ignores not only the language of

the Act itselfbut also a holding of the Ohio Supreme Court directly on point.

III. CONDUCTING PUBLIC BUSINESS BY SECRET-BALLOT VOTING (Count I)

A. Relator’s claim to ensure public business is not conducted by secret-ballot voting

is not moot.

Initially, Appellees assert that the violation of the Open Meetings Act arising from

conducting public business by secret-ballot voting has become moot because “[t]he relief sought

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

issue has ended.” Appellees’ Brief, at 6. In making such an argument, Respondents fail to

appreciate: (i) the specific relief actually sought by Relator; and/or (ii) once a violation or even a

threatened violation has been established, the Act mandates the issuance of a statutory

injunction.

Initially, Appellees conveniently ignore that the relief sought by Relator did not concern or

directly challenge Mr. Puffenberger’s status as president pro tempore of the Bratenahl Village

Council. For while secret-ballot voting for president pro tempore may have been the event

constituting an actual violation of the Open Meetings Act, Relator actually challenged in Count I

the larger and more significant issue of Respondents conducting any public business through the

use of secret-ballot voting:

Voting by the members of a public body is a formal action that must occur in a
meeting open to the public. In fact, the Ohio Attorney General has concluded that
“[vjoting by secret ballot is at variance with the purpose of the open meetings law
and only denies the people their right to view and evaluate the workings of their
government. Accordingly, a public body that is subject to the requirements of the
Open Meetings law may not vote in an open meeting by secret ballot.”

T.d.17, Amended Complaint ^53 (quoting Ohio Att’y Gen’l Opin. No. 2011-038).

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 In fact, the explicit relief Relator seeks due to the use of secret-ballot voting does not even relate

to Mr. Puffenberger’s status as president pro tempore but, instead, concerns the use of secret-

ballot voting for any public business:

Pursuant to the Open Meetings Act (R.C. 121.22), Relator is entitled to the issuance
of injunctive relief so as to preclude and prohibit Respondents from conducting any
business of the Bratenahl Village Council by secret ballot, including, without
limitation, taking votes on official business by secret ballot unless expressly
authorized to do so by the Ohio Revised Code, together with an award of a civil
forfeiture and attorney fees.

WHEREFORE, the State of Ohio, on relation to Relators, hereby pray and request
that the Court:

c. issue a declaratory judgment that Respondent MARY BECHENBACH,

Respondent JAMES PUFFENBERGER, Respondent ERIN SMITH, Respondent
GEOFFREY B.C. WILLIAMS, and Respondent MARLA MURPHY, individually
or collectively, threaten to violate the Open Meetings Act by conducting, in the
future, public business of the VILLAGE OF BRATENAHL, OHIO, and the
Bratenahl Village Council by secret ballot votes;

d. issue an injunction prohibiting Respondent MARY BECHENBACH, Respondent

JAMES PUFFENBERGER, Respondent ERIN SMITH, Respondent GEOFFREY
B.C. WILLIAMS, and Respondent MARLA MURPHY, from conducting any votes
of the Bratenahl Village Council, by secret ballot unless Ohio law expressly permits
voting by secret ballot for the particular matter;

T.d.17, Amended Complaint ^63 & prayerfor relief (c) & (d).
Furthermore, Appellees’ argument fails to recognize that actions under the Open Meetings

Act involve issuance of a statutory injunction, a concept developed by Appellant but completely

ignored by Appellees. See Appellant’s Brief, at 15-17. Because the Open Meetings Act

specifically mandates the issuance of an injunction upon proof of either: (i) a violation of any

requirement of the Act; or (ii) a threatened violation of any requirement of the Act, once either

of those criteria have been established, an appropriate injunction must issue. In rejecting a

similar contention of mootness, the Second District expressly declared “we cannot conclude that

the issues presented are moot. R.C. 121.22(I)(1) requires that the court issue an injunction where

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 a violation of the statute has been proven. It is irrelevant whether the injunction is actually and

currently necessary to prevent a future harm.” Doran v. Northmont Bd. of Ed., 153 Ohio App.3d

499, 794 N.E.2d 760, 2003-0hio-4084 ^20 (2d Dist. 2003). A violation (or threatened violation)

of the Open Meetings Act has been established by the proper summary-judgment evidence and,

pursuant to the Act itself, an appropriate injunction must issue. The claim is not moot.

B. Conducting public business of a legislative body by secret-ballot voting violates

the Open Meetings Act,

With respect to the merits of Count I, there is no dispute as to the one critical material fact,

viz., Appellees conducted public business of the Bratenahl Village Council through secret-ballot

voting. Instead, the entirety of Appellees’ defense is that the Open Meetings Act “does not

provide for any particular voting procedure”, Appellees ’ Brief, at 9, and, therefore, by extension,

they (and all public bodies throughout the State) may conduct all public business in any manner

not expressly prohibited in the Open Meetings Act, including by secret-ballot voting.1

In an effort to refute the unequivocal pronouncement in Ohio Att’y Gen’l Opinion No.

2011-038 that “a public body”, i.e., any public body, “that is subject to the requirements of the

Open Meetings law may not vote in an open meeting by secret ballot,” Appellees claim the

Opinion applies only to the Ohio Board of Education which specifically requested it. Appellees ’

Brief, at 7. In attempting to so confine the Opinion, Appellees conveniently ignore that

underlying legal principles - be they in a formal legal opinion or in a court decision - are not

constrained or limited only to the particular facts of a case; legal principles have universal

application beyond the specific facts giving rise to the pronouncement thereof. Appellees’

1 Appellees actually recognize the need for the Court to declare whether, consistent with
the letter and spirit of the Open Meetings Act, public bodies may conduct all public business by
secret-ballot voting. See Appellees ’ Brief, at 9 (“the plain and unambiguous language of R.C.
121.22(C) does not provide for any particular voting procedure, therefore, such intent should be
inferred here by thejudiciary”).

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 argument is akin to saying that the well-established legal proposition that “[i]t is emphatically the

province and duty of thejudicial department to say what the law is,” Marbury v. Madison, 5 U.S.

(1 Cranch) 137 (1803), only has application when an individual appointed as a justice of the

peace seeks to compel the issuance of mandamus in the Supreme Court for the delivery of his

commission. While that was the precise factual posture of Marbury, it is beyond cavil that the

legal principle pronounced therein has much wider and universal application.

Additionally, Appellees completely ignore the remedial nature of the Open Meetings Act

and the direction of the Ohio Supreme Court cited to and quoted by Appellant concerning

statutory construction of remedial statutes. See Appellant’s Brief, at 19 (in interpreting remedial

statutes, courts “often go quite beyond the letter of the statute. What is within the intention is

within the statute though not within the letter; and what is within the letter but not within the

intention is not within the statute” (quoting American Guaranty Co. v. Supply Co., 115 Ohio St.

524, 537, 155 N.E. 127 (1926)(quoting 2 Sutherland on Statutory Construction (2d Ed. Lewis),

Section 585)).

Appellees also ignore the fact that the Ohio Supreme Court has repeatedly found violations

of the Open Meetings Act even when the conduct of public officials was not expressly prohibited

under a strict reading of the Act. While Appellant cited in her brief to the holdings of the Ohio

Supreme Court in White v. King, 147 Ohio St. 3d 74,_ N.E.3d_ , 2016-0hio-2770, and State

ex rel. Cincinnati Post v. Cincinnati, 76 Ohio St.3d 540, 544, 668 N.E.2d 903 (1996), see

Appellant’s Brief, at 20, Appellees elected to avoid even addressing these cases which

completely repudiate their argument. Thus, even though serial in-person communications and

serial electronic communications via e-mail are not expressly prohibited by the language of the

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 Act, the Ohio Supreme Court has recognized that when public officials conduct public business

through either method, they have violated the Open Meetings Act.

To conclude that Appellees did not violate the Open Meetings Act when they conducted

the public business of the Bratenahl Village Council by secret-ballot voting necessitates this

Court to reject and repudiate the clear, well-reasoned and extensively-set-forth logic within Ohio

Att’y Gen’l Opin. No. 2011-038. Furthermore, to ratify the conducting of public business by

secret-ballot voting would permit all public bodies throughout the State of Ohio to undertake all

of the public’s business by secret ballot, including critical or controversial votes on public

expenditures, appropriations, etc. Allowing for the interpretation Appellees posit would result in

an absurd result that would effectively nullify the Open Meetings Act and its core purpose of

transparency and accountability.2 But “[i]t is a cardinal rule of statutory construction that a

2 Respondents also make a fleeting effort to justify their action by making a passing
reference to the authority within R.C. 731.45 for a legislative authority to determine its own rules
and the conclusory assertion that “Village Council followed its own past practice of using a
secret ballot to elect president pro tempore.” Appellees ’ Brief, at 8. Of course, there was not any
proper summary-judgment evidence even purporting to establish the fact of past history and,
thus, such a conclusory assertion must be rejected.
But even assuming arguendo that the general rule-making authority within R.C. 731.45
could supersede the Open Meetings Act, such rules are not established in an ad hoc manner. For
the Bratenahl Village Council has already adopted rules for its proceedings which do not even
purport to authorize the conducting of public business by secret ballot. See Codified Ordinance
of Bratenahl, Chapter 121 (copy available on-line as a public document for whichjudicial notice
can be taken at http://www.bratenahl.org/180/Ordinances). In fact, Section 121.03(h) of the
Codified Ordinances expressly requires that meetings be conducted in conformity with state law:

The Ohio Revised Code, the Codified Ordinances of the Village of Bratenahl,
including Chapters 127, Code of Conduct, and 129, Code of Ethics, the Ohio Ethics
Law, and, if none of the aforementioned laws are applicable, then Robert's Rules of
Order as revised from time to time, shall govern all proceedings of the Bratenahl
Village Council and its Committees and it shall be the duty of the presiding officer or
chairperson thereof to adhere to and enforce such rules.
Thus, rather than attempting to repudiate the requirements of state law (and the Open Meetings
Act, in particular), the rules of the Bratenahl Village Council expressly incorporate the
, (continued on next page)
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 statute should not be interpreted to yield an absurd result.” Mishr v. Poland Bd. of Zoning

Appeals, 76 Ohio St.3d 238, 240, 667 N.E.2d 365, 1996-0hio-400; see R.C. 1.47(C)(“[i]n

enacting a statute, it is presumed that...[a] just and reasonable result is intended”). This Court

should not condone the absurd interpretation posited by Appellees which would make a nullity of

the Open Meetings Act; the reasoning and logic of Ohio Att’y Gen’l Opin. No. 2011-038 is

consistent with the purposes of the Act and should, accordingly, be adopted by this Court.

In light of the undisputed evidence that the members of the Village of Bratenahl

conducted public business when they voted, on three separate occasions, by secret ballot during

the course of the council meeting of January 21, 2015, Respondents either violated or threatened

to violate the Open Meetings Act. Thus, pursuant to R.C. § 121.22(I)(1), Relator-Appellant was

entitled to summary judgment on this claim and an appropriate statutory injunction should have

issued precluding Respondents and their successors-in-office from conducting public business of

the Village of Bratenahl by secret-ballot voting. Accordingly, the trial court committed

reversible error when it granted summary judgment in favor of Respondents-Appellees and

denied summaryjudgment in favor of the Relator-Appellant.

IV. FINANCE COMMITTEE MEETING MINUTES (Count II)

A. The requirements of the Open Meetings Act apply equally to a village council
and to the committees of a village council.

The minutes of the Finance Committee undisputedly contained only a listing of roll call

votes without any substantive indication of the Committee’s decision-making process or

rationale therefor. In order to legally justify these perfunctory minutes, Appellees argue for the

first time on appeal that a different legal standard applies depending upon whether one is dealing

requirements thereof and the mayor, as the presiding officer, failed to comply with his duty to
ensure adherence to such requirements.

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 with a village council versus the committee of that village council. See Appellees ’ Brief, at 11-12

(“[t]here is an obvious distinction between legislative acts of a village council and acts that are

administrative or ministerial in nature, like those of a committee of a village council”). Of

course, for this proposition, Appellees have offered no legal authority because there is no such

authority. In fact, a similar proposition was expressly rejected by the Ohio Supreme Court as

being “meritless”:

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.... [Cjommittee 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

State ex rel. Long v. Cardington Village Council, 92 Ohio St.3d 54, 58, 748 N.E.2d 58, 2001-

Ohio-130.3

The Open Meetings Act does not establish one set of standards for a council and another

set of standards for a committee of a council. The Act applies to “public bodies” as defined in

R.C. 121.22(B)(1) which includes not only the council itself, see R.C. 121.22(B)(1)(a), but also a

“committee or subcommittee” thereof, see R.C. 121.22(B)(1)(b). See Long, 92 Ohio St.3d at 58­

59 (“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”); State ex rel. American Civ. Liberties Union of Ohio, Inc. v. Cuyahoga Cty. Bd. of

Comm’rs, 128 Ohio St.3d 256, 943 N.E.2d 553, 2011-Ohio-625 ^42; Berner v. Woods, 2007-

3 With respect to inconvenient case law, Appellees either ignore it completely (as in the
instances of White v. King and Cincinnati Post) or completely mischaracterize such cases. As an
example of the latter, Appellees wrongfully declare that “Long involved a challenge to the
minutes of a full village council, not a village council committee.” Appellees ’ Brief, at 11. But
Long did involve a challenge to the minutes of a village council committee and the Supreme
Court rightfully concluded the same legal standard applied to committees as applies to councils.

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 Ohio-620 |14 (9th Dist.). The Open Meetings Act applies equally to all “public bodies”,

including the principle legislative authority and any committees thereof.4

B. Simply listing the content of motions and votes in minutes, without sufficient
facts and information to permit the public to understand and appreciate the
rationale behind the decisions, does not satisfy the requirements of the Open
Meetings Act,

Appellees implicitly admit that the meeting minutes from the Finance Committee do not

constitute “a full and accurate record of [the] proceedings” when they cite to sources other than

the minutes themselves. See Appellees’ Brief, at 12-14 (“the public is given the opportunity to

hear the Finance Committee Chairperson explain the events and particular items discussed at the

recent Finance Committee meeting and make Finance Committee recommendations to the

Council as a whole and to the public in attendance on the record at the regularly-scheduled

Council meeting.... [T]he minutes from the regularly-scheduled Village Council meetings the

Finance Committee Chairperson as to the Committee’s discussions and recommendations to

Council”).

Claiming that an individual’s subsequent attendance at a council meetings can provide

sufficient information concerning the Finance Committee, Respondents ignore the actual issue at

hand, viz., whether the official minutes of the Finance Committee contain sufficient facts and

information to permit the public to understand and appreciate the rationale behind the decisions

of the Committee beyond simply stating the roll call votes. The legal requirement as clearly

pronounced by White v. Clinton Cty. Bd. of Comm’rs, 76 Ohio St.3d 416, 667 N.E.2d 1223,

1996-Ohio-380, and Long is that the minutes themselves must contain sufficient facts, etc.

4 In addition to misstating the clear and unequivocal holding from Long, Appellees’ new­
found argument that a different legal standard applies to a village council versus the committee
of that village council is also refuted by their admissions in the pleadings. See Amended
Complaint ^66, 67 & 77; Answer ^66, 67 & 77.
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 “[M]inutes are those that are approved as the minutes, not information from additional sources.”

State ex rel. Patrick Bros. v. Putnam Cty. Bd. of Comm’rs, 2014-Ohio2717 ^34 (3d Dist.). Thus,

requiring or necessitating that the public attend one meeting of a public body in order to ascertain

what occurred at a meeting of another public body lacks any legal basis and, consistent with the

White and Long, is not sufficient to satisfy the requirements of the Open Meetings Act.

Furthermore, is well-established, that just “[a]s a court speaks only through its journal, a public

board, commission, or other deliberative body speaks through its minutes or its written record of

resolutions, directives, and action.” Swafford v. Norwood Bd. of Ed., 14 Ohio App.3d 346, 348,

471 N.E.2d 509 (1st Dist. 1984). Thus, efforts to rationalize the deficiencies in the meeting

minutes by attempting to incorporate matters or statements outside of the minutes themselves is

misplaced.

In light of the minutes of the Finance Committee from the first part of 2016 only

containing “a record of mere roll call votes” and, thus, failing to provide any substantive

indication of the decision-making process of the Committee, the members thereof have failed to

comply with their legal duty under the Open Meetings Act to order keep and maintain “a full and

accurate record of [its] proceedings” consistent with the Act, White and Long. Thus, pursuant to

R.C. § 121.22(f)(1), Relator-Appellant was entitled to summary judgment on this claim and an

appropriate statutory injunction should have issued. Accordingly, the trial court committed

reversible error when it granted summary judgment in favor of Respondents-Appellees and

denied summaryjudgment in favor of the Relator-Appellant.

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 V. EXECUTIVE SESSION - MOTION, VOTE and MINUTES (Count III)

A. Appellees implicitly admit that, at a minimum, the minutes fail to indicate the
content of the motion and the roll call vote.

Appellees actually acknowledge that the official minutes, i.e., the transcript, of the

meeting of August 19, 2015, do not contain the actual motion or any recorded roll call vote for

entering executive session at the beginning of the meeting. Again, Appellees cite to items

outside the official minutes in an effort to establish the content of any motion or that a roll call

vote was actually held. See Appellees’ Brief, at 14 (“as evidence by the audio recording..., the

motion and roll call vote to hold executive session were clearly taken”). In relying exclusively

upon records other than the official minutes to establish what supposedly happened, Appellees

have effectively admitted that the minutes themselves do not fully and accurately set forth the

actions of the Village Council, viz., the content of any motion or the roll call vote thereon.

As noted above, “minutes are those that are approved as the minutes, not information

from additional sources.” Patrick Bros., 2014-Ohio-2717 ^34. Appellees have not cited to a

specific line entry in the official minutes, i.e., the transcript, of the meeting of August 19, 2015,

wherein the specific content of the motion is set forth or the roll call vote is recorded. Reliance

upon audio recordings or notes of the clerk is not a proper and legitimate substitute for the

official minutes. See Long, 92 Ohio St.3d at 57-58 (rejecting audio recordings as substitute for

inadequate or inaccurate minutes). The duty under the Open Meetings Act is to prepare, file, and

maintain “full and accurate minutes” for council meetings. By Appellees own admission, the

minutes from the meeting of August 19, 2015, fail to contain the content of the motion to enter

executive session or the roll call vote thereon; Appellees have violated the Open Meetings Act as

it relates to preparing, filing or maintaining full and accurate minutes.

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 Thus, pursuant to R.C. § 121.22(I)(1), Relator-Appellant was entitled to summary

judgment on this claim and an appropriate statutory injunction should have issued. Accordingly,

the trial court committed reversible error when it granted summary judgment in favor of

Respondents-Appellees and denied summaryjudgment in favor of the Relator-Appellant.

VI. CONCLUSION

The proper and relevant summary-judgment evidence is undisputed; thus, this Court’s de

novo review simply calls upon the application of law to the undisputed facts. As established by

the pleadings and supporting evidentiary materials, there is no genuine issue of material fact

concerning the conduct or omissions of Respondents as public officials of the Village of

Bratenahl under the Open Meetings Act. Such undisputed evidence establishes multiple

violations or threatened violations of the Open Meetings Act such that the judgment of the trial

court must be REVERSED and either the case REMANDED for entry of an appropriate statutory

injunction and further proceedings or, alternatively, this Court may ENTER THE

APPROPRIATE JUDGMENT itself pursuant to Ohio R. App. P. 12(B) and REMAND for

further proceedings.

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 Respectfully submitted,

/s/ Curt C. Hartman_ _ _ _ _ _ _ _

Curt C. Hartman (0064242)
The Law Firm of Curt C. Hartman
7394 Ridgepoint Drive, Suite 8
Cincinnati, Ohio 45230
(513)379-2923
hartmanlawfirm@fuse.net

Christopher P. Finney (0038998)

Finney Law Firm LLC
4270 Ivy Pointe Blvd., Suite 225
Cincinnati, Ohio 45245
(513) 943-6655
chris@finneylawfirm.com

Attorneys for Relators

CERTIFICATE OF SERVICE

I certify that a copy of the foregoing was or will be served by e-mail upon the following
on the 12th day ofMarch 2017:

David J. Matty
Shana A. Samson
Mark B. Marong
Matty, Henrikson & Greve
55 Public Square, Suite 1775
Cleveland, OH 44113
dmatty@mhglegal. com
ssamson@mhglegal. com
mmarong@mhglegal. com
/s/ Curt C. Hartman_ _ _ _ _ _ _ _

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