2017.1.26 Appellant's Merit Brief

NAILAH K.
BYRD
CUYAHOGA COUNTY CUERK OF COURTS
1200 Ontario Street
Cleveland, Ohio 44113
Court of Appeals
APPEUUANT'S BRIEF FIFED

January 26, 2017 23:23
By: CURT C. HARTMAN 0064242
Confirmation Nbr. 971162
STATE OF OHIO EX REL. MORE BRATENAHL, ET AL. CA 16 105281
vs.
Judge:
VILLAGE OF BRATENAHL, OHIO, ET AL.
Pages Filed: 41
Electronically Filed 01/26/2017 23:23 / FILING OTHER THAN MOTION / CA 16 105281 / Confirmation Nbr. 971162/CLKPW
Case No. CA-16-105281
In the Court of Appeals

Eighth Appellate District
Cuyahoga County, Ohio
STATE OF OHIO ex rel. PATRICIA MEADE,
Relator-Appellant,
v.
VILLAGE OF BRATENAHL, et al.,
Defendants-Appellees.
APPELLANT’S MERIT 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
hartmanlawfirm@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
Electronically Filed 01/26/2017 23:23 / FILING OTHER THAN MOTION / CA 16 105281 / Confirmation Nbr. 971162 / CLKPW
TABLE OF CONTENTS
Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
APPELLANT ’ S MERIT BRIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
I. STATEMENT OF THE ASSIGNMENTS OF ERROR PRESENTED FOR
REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
FIRST ASSIGNMENT OF ERROR: The trial court erred in granting
summaryjudgment (T.d.34) in favor of Respondents-Appellees.
SECOND ASSIGNMENT OF ERROR: The trial court erred in denying
summaryjudgment (T.d.34) in favor of Relator-Appellant.
II. STATEMENT OF THE ISSUES PRESENTED FOR REVIEW. . . . . . . . . . . . . 2
III. STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
A. Statement of Jurisdiction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
B. Procedural Posture. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
IV. STATEMENT OF THE FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1. The Bratenahl Village Council conducted public business by secret-ballot
2. The Meeting Minutes of the Finance Committee simply contain a recitation of

motions and votes without providing information concerning the discussions or
means by which decisions were made. . . . . . . . . . . . . . . . . . . . . . . . . . . 8
3. The Meeting Minutes of the Bratenahl Village Council fail to indicate the
purpose for which a meeting was held in executive session or the holding of a
roll call vote on any motion to enter executive session. . . . . . . . . . . . . . . . . 13
V. ARGUENT IN SUPPORT OF ASSIGNMENTS OF ERROR. . . . . . . . . . . . . 14
FIRST ASSIGNMENT OF ERROR
The trial court erred in granting summary judgment (T.d.34) in favor of
Respondents-Appellees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECOND ASSIGNMENT OF ERROR
The trial court erred in denying summaryjudgment (T.d.34) in favor of Relator-
Appellant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Issue Presented to Review and Argument
In conducting a de novo review of a trial court’s ruling on cross-motions for
summary judgment, a court of appeals may affirm the summary judgment in
favor of the appellees, reverse and render ajudgment in favor of the appellant,
or reverse and remand the case if neither party has met its summary-judgment
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. . . . . . . . . . . . . . . . . 15
1. The Bratenahl Village Council conducted public business by secret-ballot

voting. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
A violation or threatened violation of the Open Meeting Act (R.C. § 121.22)
occurs when a public body conducts public business through secret-ballot
2. The Finance Committee of the Bratenahl Village Council failed to keep or

maintain meeting minutes which contain sufficient facts and information
such that the public can understand and appreciate the rationale behind its
decision. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

occurs when a public body fails to keep a full and accurate record of its
proceedings which includes satisfying the requirement that meeting minutes
contain sufficient facts and information so that the public can understand and
appreciate the rationale behind any decision or action of the public body. . . . . . 21
3. With respect to the executive session held during the meeting on August 19,
2015, either: (i) Respondents failed to comply with the conditions precedent
for holding an executive session; or (ii) if such conditions precedent were
actually satisfied, then the meeting minutes fail to accurately indicate such
compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Minutes of a public body are those that are approved as the minutes, not
information from additional extraneous sources . . . . . . . . . . . . . . . . . . . . . 25
A village council speaks only through its minutes or its written record of
resolutions, directives, and action. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
ii
A violation or threatened violation of the Open Meeting Act (R.C. § A
violation or threatened violation of the Open Meeting Act (R.C. § 121.22)
occurs when a public body meets in executive session without satisfying the
conditions precedent of (i) the motion to enter executive session specifically
stating the statutorily-permissible purpose for the executive session; and (ii)
conducting a roll-call vote on that motion. . . . . . . . . . . . . . . . . . . . . . . . . 26

occurs when a public body fails to keep a full and accurate record of its
proceedings which includes setting forth: (i) the motion to enter executive
session which specifically states the statutorily-permissible purpose for the
executive session; and (ii) recording the roll-call vote on that motion. . . . . . . . 26
VI. CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Certificate of Service. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Appendix. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Notice of Appeal (T.d.38), December 20 2016
Entry Granting Motion to Strike Remaining Claim (T.d.37), December 20, 2016
Decision Denying Relator’s Motion for Summary Judgment and Granting
Respondents’ Cross-Motion for Summary Judgment (T.d.34), December 15, 2016
in
TABLE OF AUTHORITIES
Case Citations
Ackerman v. Tri-City Geriatric & Health Care,
55 Ohio St.2d 51,378 N.E.2d 145 (1978). . . . . . . . . . . . . . . . . . . . . . . 15, 16
American Guaranty Co. v. Supply Co.,
115 Ohio St. 524, 155 N.E. 127 (1926). . . . . . . . . . . . . . . . . . . . . . . . . 19
Angerman v. State Med. Bd. of Ohio,
70 Ohio App. 3d 346, 591 N.E.2d 3 (10th Dist. 1990). . . . . . . . . . . . . . . . 18
City of Solon v. Solon Baptist Temple, Inc.,
8 Ohio App.3d 347, 457 N.E.2d 858 (8th Dist. 1982). . . . . . . . . . . . . . . . . 17
Doran v. Northmont Bd. ofEd.,
153 Ohio App.3d 499, 794 N.E.2d 760, 2003-0hio-4084 (2d Dist.). . . . . . . . 15
Hydrofarm, Inc. v. Orendorff
180 Ohio App.3d 339, 905 N.E.2d 658, 2008-0hio-6819 (10th Dist.). . . . . . . 15
Kane v. Ford Motor Co.,
17 Ohio App.3d 111,477 N.E.2d 662 (8th Dist. 1984). . . . . . . . . . . . . . . . 17
Lame, Inc. v. E.G. Systems, Inc.,

2015-Ohio-686 (8thDist.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Mathews v. E. Local Sch. Dist.,
2001-Ohio-2372 (4th Dist.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Pattison v. W. W. Grainger, Inc.,

120 Ohio St.3d 142, 897 N.E.2d 126, 2008-Ohio-5276 (2008). . . . . . . . . . . 5
Procter & Gamble Co. v. Stoneham,
140 Ohio App.3d 260, 747 N.E.2d 268 (1st Dist. 2000). . . . . . . . . . . . . . . 15
Richardson v. Boes,
179 Ohio App.3d 418, 2008-0hio-6173 (6th Dist.). . . . . . . . . . . . . . . . . . 14
State ex rel. Celebrezze v. Cincinnati Land Dev. Corp.,
61 OhioApp.3d747,573 N.E.2d 1133 (12thDist. 1989). . . . . . . . . . . . . . 16
State ex rel. Cincinnati Post v. Cincinnati,
76 Ohio St.3d 540, 668 N.E.2d 903, 1996-Ohio-372 (1996). . . . . . . . . . . . . 20
State ex rel. Long v. Cardington Village Council,
22-23,
92 Ohio St.3d 54, 748 N.E.2d 58, 2001-0hio-130. . . . . . . . . . . . . . .
. . . 25
State ex rel. Patrick Bros. v. Putnam Cty. Bd. of Comm ’rs,
2014-Ohio-2717(3dDist.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
State ex rel. Pizza v. Rezcallah,
84 Ohio St.3d 116, 702N.E.2d 81, 1998-Ohio-313. . . . . . . . . . . . . . . . . . 15
State ex rel. Schuette v. Liberty Twp. Bd.of Trs.,
2004-0hio-4431 (5th Dist.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
IV
Swafford v. Norwood Bd. ofEd.,
14 Ohio App.3d 346, 471 N.E.2d 509 (1st Dist. 1984) . . . . . . . . . . . . . . . . . 25
White v. Clinton Cty. Bd. of Comm’rs,

76 Ohio St.3d 416, 667 N.E.2d 1223, 1996-Ohio-380 (1996). . . . . . . . . . . . . . 21-23
White v. King,
147 Ohio St.3d 74,__N.E.2d__, 2016-0hio-2770 (2016). . . . . . . . . . . . . . . 20
Court Rules
Ohio R. App. P.4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
OhioR.App.P. 12(B). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14,28
Ohio R. Civ. P. 56(B). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Ohio R. Civ. P. 56(C). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Statutory Provisions
OpenMeetingsAct/R.C. §121.22. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
R.C. § 121.22(A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
R.C. § 121.22(G). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24-27
R.C. § 121.22(I)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
R.C. § 121.22(I)(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
R.C. § 2501.02. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Ohio Attorney General Opinions

OhioAtt’yGen’lOpin.No.2011-038 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17-19
APPELLANT’S MERIT BRIEL
This appeal involves a de novo review of the trial court’s disposition of cross-motions for
summary judgment involving three separate and distinct violations of the Open Meetings Act by
public officials of the Village of Bratenahl. Because it is de novo review, the appeal is, by its
nature, essentially rearguing the motions for summary judgment. And as the trial court disposed
of the motions in a single-line entry with no reasoning, explanation, etc., it makes it impossible
to directly address and refute the trial court’s analysis by which it arrived at its ultimate
conclusion.
Nonetheless, in this case, the material facts are not in dispute and never were. Thus, the
argument herein does not involve the contention that there is a genuine issue of material fact
such that summary judgment was improper. Instead, this appeal simply calls upon the court to
make legal conclusions based on the undisputed facts as established by the proper summary-
judgment evidence. Specifically, the issues before the Court are whether, based upon the
undisputed facts as developed by the proper summary-judgment evidence, did public officials of
the Village of Bratenahl either violate or threaten to violate any of the requirements of the Open
Meetings Act. As developed below, the undisputed evidence in this case establishes such
violations or threatened violations and, thus, Relator-Appellant was entitled to summary
judgment and the issuance of a statutory injunction. Accordingly, the trial court erred in granting
summary judgment in favor of Respondents-Appellees and denying summary judgment in favor
of the Relator-Appellee.
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I. STATEMENT OF THE ASSIGNMENTS OF ERROR PRESENTED FOR REVIEW
FIRST ASSIGNMENT OF ERROR: The trial court erred in granting summaryjudgment
(T.d.34) in favor of Respondents-Appellees.
SECOND ASSIGNMENT OF ERROR: The trial court erred in denying summary
judgment (T.d.34) in favor of Relator-Appellant.
II. STATEMENT OF THE ISSUES PRESENTED FOR REVIEW
FIRST ISSUE PRESENTED FOR REVIEW: In conducting a de novo review of a trial
court’s ruling on cross-motions for summary judgment, a court of appeals may affirm the
summary judgment in favor of the appellees, reverse and render a judgment in favor of the
appellant, or reverse and remand the case if neither party has met its summary-judgment burden.
SECOND ISSUE PRESENTED FOR REVIEW: 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.
THIRD ISSUE PRESENTED FOR REVIEW: A violation or threatened violation of the
Open Meeting Act (R.C. § 121.22) occurs when a public body conducts public business through
secret-ballot voting.
FOURTH ISSUE PRESENTED FOR REVIEW: A violation or threatened violation of
the Open Meeting Act (R.C. § 121.22) occurs when a public body fails to keep a full and
accurate record of its proceedings, which includes satisfying the requirement that meeting
minutes contain sufficient facts and information so that the public can understand and appreciate
the rationale behind any decision or action of the public body.
-2 -
FIFTH ISSUE PRESENTED FOR REVIEW: Minutes of a public body are those that
are approved as the minutes, not information from additional extraneous sources.
SIXTH ISSUE PRESENTED FOR REVIEW: A village council speaks only through its
minutes or its written record of resolutions, directives, and action.
SEVENTH ISSUE PRESENTED FOR REVIEW: A violation or threatened violation of
the Open Meeting Act (R.C. § 121.22) occurs when a public body meets in executive session
without satisfying the conditions precedent of (i) the motion to enter executive session
specifically stating the statutorily-permissible purpose for the executive session; and (ii)
conducting a roll-call vote on that motion.
EIGHTH ISSUE PRESENTED FOR REVIEW: A violation or threatened violation of
the Open Meeting Act (R.C. § 121.22) occurs when a public body fails to keep a full and
accurate record of its proceedings which includes setting forth: (i) the motion to enter executive
session which specifically states the statutorily-permissible purpose for the executive session;
and (ii) recording the roll-call vote on that motion.
-3 -
III. STATEMENT OF THE CASE
A. Statement of Jurisdiction
The order being appealed (T.d.37, Entry Granting Motion to Amend Complaint to Strike
Remaining Claim) constitutes a final appealable order as it resolved all claims against all parties
herein; said entry being entered on December 20, 2016. The Notice ofAppeal (T.d.38) invoking
the jurisdiction of this Court was timely filed on that same day, viz., December 20, 2016, and
specifically referenced the most substantive entry at issue on this appeal, viz., the entry dated
December 15, 2016, wherein the trial court granted summary judgment in favor of the Appellees
and denied summary judgment in favor of the Appellant. (T.d.34, Entry.) As all claims against
all parties have been resolved and a timely appeal filed, this Court possesses jurisdiction
pursuant to R.C. § 2501.02 and Ohio R. App. P. 4.
B. Procedural Posture
Relator-Appellant Patricia Meade commenced this action on January 25, 2016, alleging
violations of the Open Meetings Act by public officials of the Village of Bratenahl. (T.d.l,
Complaint.) Subsequently, on April 21, 2016, Relator-Appellant filed an amended complaint,
expanding the alleged violations of the Open Meetings Act. (T.d.17, Amended Complaint.)
Ultimately, the parties filed cross-motions for summary judgment. (T.d . 22, Relator’s Motion
for Summary Judgment; T.d.28, Respondents’ Cross-Motion for Summary Judgment.) On
December 15, 2016, in a journal entry without opinion, the trial court granted the motion of the
Respondents-Appellees for summary judgment while denying the motion of the Relator-
Appellant for summaryjudgment. (T.d.34, Entry.)
To resolve a claim that technically remained pending but which had been abandoned
during the course of the initial case management conference, Relator-Appellant sought leave to
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amend the complaint so as to strike that remaining claim consistent with the requirement of
Pattison v. W.W. Grainger, Inc., 120 Ohio St.3d 142, 897 N.E.2d 126, 2008-Ohio-5276 ^19
(2008)(“the proper procedure for a plaintiff to dismiss fewer than all claims against a single
defendant is to amend the complaint pursuant to Civ.R. 15(A)”). (T.d.35, Motion to Strike
Remaining Claim.) The trial court granted that motion on December 20, 2016. (T.d.37, Entry.)
A timely notice of appeal was filed that same day. (T.d.38, Notice ofAppeal.)
IV. STATEMENT OF THE FACTS
This case arises from numerous violations of the Open Meetings Act (R.C. 121.22) by the
mayor and councilmembers of the Village of Bratenahl. Generally speaking, the Open Meetings
Act imposes certain legal mandates regarding how public officials conduct meetings of public
bodies, as well as imposing certain requirements concerning the keeping and maintenance of full
and accurate minutes of such meetings.
As a resident and taxpayer in the Village of Bratenhal, Relator-Appellant Patricia Meade
brought this action due to the repeated violations of the requirements of the Open Meetings Act
by village officials.1 (T.d.17, Amended Complaint ^2.) Respondents-Appellees are the Village
1 The claims herein were also initially brought by and on behalf of MOREbratenahl, a
community news publication issued and disseminated by Ms. Meade and which reports on events
and happenings occurring in and around the Village of Bratenahl, including its government.
(T.d.17, Amended Complaint ^1.) Even though this case involved the narrow issue of
Respondents’ compliance vel non with the requirements of the Open Meetings Act, Respondents
sought overly intrusive discovery from MOREbratenahl relating to, inter alia, its operations, its
contributors, its research, etc. During the initial case management conference, when the trial
court indicated that MOREbratenahl would have to disclose such information, notwithstanding
the irrelevance of such information to claims arising under the Open Meetings Act and, more
significantly, MOREbratenahl’s First Amendment privilege against such intrusive discovery,
instead of allowing this case to become bogged down over these privilege claims (which would
necessarily have included an interlocutory appeal to protect MOREbratenahl’s First Amendment
privilege), MOREbratenahl voluntarily dismissed all of its claims. (T.d.20, Minute Entry.) Thus,
Ms. Meade is the sole appellant herein.
-5 -
of Bratenal qua a corporate entity, as well as its mayor and the current members of its council
who engaged in the violations or threatened violations of the Open Meetings Act giving rise to
this action. (T.d.17, Amended Complaint ^3-9; T.d.19, Answer ^3-9.) The violations of the
Open Meetings Act at issue in this case can be categorized into three distinct groups:
1. The Bratenahl Village Council conducted public business by secret-ballot voting.
On January 21, 2015, the Bratenahl Village Council held and conducted a regular
meeting. (T.d.17, Amended Complaint ^16; T.d.19, Answer ^16.) One of the matters of public
business that needed to be performed by the Council at that meeting was the selection of a
president pro tempore as mandated by R.C. § 731.10: “[a]t the first meeting in January of each
year, the legislative authority of a village shall immediately proceed to elect a president pro
tempore from its own number, who shall serve until the first meeting in January next after his
election.” (T.d.17, Amended Complaint ^19 & 20; T.d.19, Answer ^19 & 20.)
After two councilmembers were nominated to serve as president pro tempore,
Councilmember Mary Beckenbach expressed her desire to take the vote by secret ballot,
declaring “We’ve always done that.” (T.d.17, Amended Complaint ^26; T.d.19, Answer ^26;
T.d.17, Amended Complaint, Exhibit A (Official Record Transcript), at page 16, lines 19-20.) In
response, then-Councilmember Laura Bacci made the express inquiry as to whether voting by
secret ballot was legal, stating that she thought she “saw something in the Sunshine Law or the
ORC that you can’t have a secret ballot.” (T.d.17, Amended Complaint ^28; T.d.19, Answer ^28;
T.d.17, Amended Complaint, Exhibit A (Official Record Transcript), at page 17, lines 2-4.)
Notwithstanding then-Councilmember Laura Bacci raising or questioning the legality of voting
by secret ballot, the members of the Bratenahl Village Council proceeded to vote by secret ballot
- 6-
for the selection of president pro tempore. (T.d.17, Amended Complaint, Exhibit A (Official
Record Transcript), at page 17, lines 5-9.)
After the councilmembers marked their secret ballots, the ballots were not handed to
designated tellers but, instead, were handed to David Matty, the village solicitor, who alone
reviewed and counted the secret ballots. (T.d.17, Amended Complaint ^30; T.d.19, Answer ^30.)
Without even publicly pronouncing the specific tally of the secret-ballot vote, Mr. Matty simply
declared that another vote had to be taken, indicating that a vote had been cast for an individual
who was not nominated for president pro tempore. (T.d.17, Amended Complaint ^31; T.d.19,
Answer ^31; T.d.17, Amended Complaint, Exhibit A (Official Record Transcript), at page 17,
lines 10-16.)
With Mr. Matty expressly declaring and directing the councilmembers that they could
only vote for one of the two individuals that had actually been nominated for president pro
tempore (T.d.17, Amended Complaint, Exhibit A (Official Record Transcript), at page 17, lines
23-25), a second set of secret ballots were cast by the councilmembers. T.d.17, Amended
Complaint, Exhibit A (Official Record Transcript), at page 18, line 1.) Again, Mr. Matty alone
reviewed and counted the second set of secret ballots. (T.d.17, Amended Complaint ^34; Answer
^34; T.d.17, Amended Complaint, Exhibit A (Official Record Transcript), at page 18, lines 2-3.)
Thereupon, Mr. Matty announced that the results of the second secret ballot for president pro
tempore resulted in a tie vote. (T.d.17, Amended Complaint ^35; T.d.19, Answer ^35; T.d.17,
Amended Complaint, Exhibit A (Official Record Transcript), at page 18, lines 4-5.)
Thus, the councilmembers cast yet a third set of secret ballots in order to elect the
president pro tempore. (T.d.17, Amended Complaint, Exhibit A (Official Record Transcript), at
page 18, line 23.) After Mr. Matty alone reviewed and counted the third set of secret ballots, he
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announced that Councilmember Puffenberger had been elected president pro tempore of the
Bratenahl Village Council. (T.d.17, Amended Complaint, Exhibit A (Official Record Transcript),
at page 18, line 23 - page 19, line 2.)
2. The meeting minutes of the Finance Committee simply contain a recitation of

motions and votes without providing information concerning the discussions or
means by which decisions were made.
One of the committees of the Bratenahl Village Council is the Finance Committee.
(T.d.17, Amended Complaint ^68; T.d.19, Answer ^68.) As such, the Finance Committee
constitutes a “public body” as defined in R.C. 121.22(B)(1) (T.d.17, Amended Complaint ^66;
T.d.19, Answer ^66) such that it and its members are subject to the requirements of the Open
Meetings Act.
A review of the official minutes of Finance Committee for meetings held on January 19,
2016; February 16, 2016; March 14, 2016; and April 18, 2016 (T.d.17, Amended Complaint ^82
& Exh. D; T.d.19, Answer ^82), indicate various items came before the committee, the action
taken thereon and the votes of the committee members on a motion to effectuate that action. Yet,
when consideration is given to the length of these meetings (as clearly indicated by the official
minutes themsleves) and the limited number of items considered, there clearly would have been
significantly more involved than simply a motion and vote concerning each item:
No. of Items
Meeting Date Length of Meeting
Considered
January 19, 2016 5 items 47 minutes
February 16, 2016 5 items 54 minutes
March 14, 2016 8 items 1 hour, 6 minutes
April 18,2016 8 items 1 hour, 17 minutes
But beyond a comparison between the length of the meetings versus the number of items
considered, Relator-Appellant also audio-recorded these meetings or obtained such recordings.
- 8 -
(T.d.22-20, Meade Affidavit ^3, attached to Relator’s Motion for Summary Judgment.) These
recordings reveal significantly more occurred during these meetings than is reported in the
perfunctory minutes. (See generally T.d.22-20, Meade Affidavit, attached to Relator’s Motion
for Summary Judgment, T.d. 27, Notice of Filing Electronic Files for Meade Affidavit with
attached audiovisual recordings.) While a complete and more detailed comparison between the
official minutes, on the one hand, and the audiovisual recordings of each meeting, on the other
hand, can fully reveal the information and discussions concerning various public issues that were
part of the decision-making process of the Finance Committee, the summaries of those recording
as set forth in the following tables confirm and establish that the minutes fail to contain sufficient
facts and information to permit the public to understand and appreciate the rationale behind the
Committee’s decisions and actions.
January 19, 2016

Item 2: Ord. 3855 - Pav Claims
Minutes Action: No chanees.
Motion to recommend Council passage: Ms. Murphy; Second: Mr. Williams. Motion carried.
Item 2 concerned a recommendation for the authorization of payment of claims.

Even though the minutes indicate simply a motion and vote to recommend
passage, the audio visual recording indicates discussions, inquiries and
explanations of this item last nearly 10 minutes (from 0:53 - 10:32 of the
recording). During the course of the inquiries and discussions concerning the
Summary
payment of claims, the fact that the village police department was obtaining
of
money relating to the use of motorcycles arose (1:59 - 4:25 of the recording). In
Recording2
addressing the payment of claims relating to the motorcycles, one committee
member expressed her concern and reservation about village police officers using
motorcycles. Yet, even though such discussion arose during the course of
considering the authorization for payment of claims, one reviewing the minutes
would be oblivious to this concern or any concern or inquiry raised during the
nearly 3-plus minutes of this single item.
2 The Recordings were authenticated by the Meade Affidavit (attached to T.d. 22, Relator’s
Motion for Summary Judgment) with the recordings themselves being filed electronically with
the clerk (T.d. 27, Notice ofFiling Electronic Files for Meade Affidavit with attached audiovisual
recordings.)
-9-
Also during the course of the nearlv-ten-minute discussion concerning the various
claims being presented for payment, detailed explanations are provided on the
claims broken down by village departments. Yet no such clarification or
explanation is provided in the minutes.
item 3: Ord. 3E56 — Amend!nu Administrative Code re: "Holidavs"

Action: Amended to add only Veteran's Day to Holiday list.
Minutes Motion to recommend Council passage as amended; Ms. Murphy; Second: Mr. Williams,
Motion carried.
Item 3 concerned expanding the list of holidays recognized by the village. As

explained during the course of the discussion (10:32- 16:13 of the recording), the
goal and purpose of changing the list was to change the number of village
holidays from 11 to 13, with 13 being described as being the typical number of
holidays recognized by governments in general. Additionally, inquiry was made
as to Good Friday being a holiday (which it was already). Throughout the video,
discussions ensured about whether the day after Thanksgiving should be included
Summary
in the expansion of holidays or it should just be limited to Veterans Days. Even
of
though the recommendation presented to the Committee sought to add more than
Recording
one day, in light of the indication “we’ll adjust” the list, the committee actually
changed the recommendation provided to it so as to recommend to council the
addition of a single new holiday. Thus, the committee clearly considered,
discussed and acted upon the recommended list of additional holidays, expressly
rejecting the scope of the recommendation. Yet the minutes are devoid of any of
such process, including the reasoning and rationale of the committee in rejecting
the recommendation or its ultimate action.
Item 4: Ord. 3S57 -Additional Aoorooriations for Current Ex censer

Minutes Action: No changes.
Motion to recommend Council passage: Mr. Williams; Second: Ms, Murphy, Motion carried.
When Item 4 came up during the meeting (16:20 - 29:50 of the recording), the
chairman of the committee immediately asked for explanation of this item, which
Summary was subsequently provided and questions thereon ensued. Additionally, extended
of discussions occurred concerning the recreation commission and its operations.
Recording But the minutes are completely devoid of the information provided and overview
of inquiries concerning this item, even though the committee had the matter
before it for 13’A minutes.
- 10
-
Item 5: Preliminary Discussion related to Administrative Compensation Strategy
Action: Administration to orovide nod ate/detail on current emoloyee resoonsibilities. Mr.
Minutes Puffenberger to update current compensation detail to facilitate subsequent discussion. 30 day
completion target.
Item 5 involved extensive discussions (nearly 15 minutes) concerning the

Summary
development of a strategy to change the compensation structure for non-elected
of
administrative personnel. Yet, the minutes fail to contain any insight as to these
Recording
discussion, etc.
Minutes Void of any reference of public comments and responses thereto.

Following the items indicated on the minutes, public comments and inquiries
directed to the committee occurred (45:30 - 51:30 of the recording), yet the
minutes lack any indication of issues that the public raised with the committee.
Summary
And as comments from the public indicated, records which could better inform
of
the public relating to the business before the Committee were not provided, thus,
Recording
further hindering the public’s ability to have more complete knowledge of the
committee’s activity, making the deficiency in the minutes all the more
significant.
February 16,2016
Item 2: Crd. 3859 - Authoring fund balance transfers associated with bond debt refinancing
Action: Amend/correct Section 1.. line 1 to read transfer 5340.000 from the General Fund
Minutes (vs. $350,000).
Motion to recommend Council passage as amended: Mr. Williams; Second: Ms. Murphy.
Motion carried.
Item 2 concerned a recommendation for the authorization of the transfer of funds.

But as the audio visual recording indicates (at 1:18-1:36 of the recording), an
Summary explanation of the reasons and necessity for these funds was provided and
of preceded approval of the committee’s recommendation. Yet absent from the
Recording minutes are any indication or explanation as to the reason or rationale for this
action (including amending the recommendation made to the Committee) even
though such an explanation was provided during the meeting.
ffem 3: Ord. 3860- Pay Claims

Minutes Action: No changes.
Motion to r&commend Council passage: Ms. Murphy; Second: Mr. Williams. Motion carried.
Item 3 concerned a recommendation for the authorization of payment of claims.

Summary Even though the minutes simply indicate no changes and simply a motion and
of vote to recommend passage, the audio visual recording the discussion, inquiries
Recording and explanation of this item last nearly 10 minutes (from 3:13-13:02 of the
recording). During the course of the nearly-ten-minute discussion concerning the
- 11 -
various claims being presented for payment, detailed explanations are provided
on the claims broken down by village departments. Yet no such clarification or
explanation is provided in the minutes.
March 14, 2016

Item 2: Qrd, 3866-Pay Claims
Action: No charees.
Minutes Motion to recommend Council passage: Mr. Williams; Second: Mr. Ruffenberger. Motion
carried.
As a monthly matter, Item 2 concerned the recommendation for the authorization

of payment of claims. As with the prior meetings, explanations of the reasons
Summary
and necessity for the payment of these claims were provided and preceded
of
approval of the committee’s recommendation. Yet, par for the course, absent
Recording
from the minutes are any indication or explanation as to the reason or rationale
for this action even though such an explanation was provided during the meeting.
item 6: Review of Service Garage Condition and Recommendations

Minutes Action: Bids will be accepted to evaluate demolition and replacement options for current
structure prior to year-end.
Lasting for over 10 minutes (at 12:30-22:51 of the recording), Item 6 related to
the current condition of the service garage, and the potential need to demolish and
replace it. While the minutes simply indicate bids will be accepted, the meeting
actually included extended discussions concerning the on-going problems with
Summary
the present service garage, e.g., leaking roof, problem with structural beams, etc.,
of
that actually necessitate the potential expenditure governmental funds, but the
Recording
costs for repairing versus demolition will also be considered (but is anticipated
not to be cost effective). Additional discussions also addressed the potential use
of a multi-million dollar bond issue that would provide funds for not only the
service garage, but also other capital improvements.
April 18, 2016

item 3: Poliice Department full1-time staff restructuring
Action: Agreement conceptually and on likelihood of financial feasibility.
Minutes Motion to send to Public Safety Committee for final recommendation: Ms. Murphy; Second:
Mr. Puffenberger. Motion carried.
Item 3 involved a nearly 14-minute presentation and discussion (see 12:43 -

26:50 of the recording) concerning the concept and estimated costs of converting
Summary
more part-time police officers positions to full-time positions. Despite agreeing to
of
move forward with the financial commitment involved therein, no information
Recording
was provided in the minutes by which the public could ascertain and access the
information supporting the decision-making process of the Finance Committee.
- 12 -
The foregoing tables illustrate the perfunctory nature of the meeting minutes of the
Finance Committee and the complete absence of any substantive information relating to various
matters when the audiovisual recordings of the respective meetings are considered.
3. The Meeting Minutes of the Bratenahl Village Council fail to indicate the
purpose for which a meeting was held in executive session or the holding of a roll
call vote on any motion to enter executive session.
On August 19, 2015, the Bratenahl Village Council held and conducted a regular
meeting, presided over by the mayor and attended by the councilmembers. (T.d.17, Amended
Complaint Hf88-90; T.d.19, Answer ^88-90.) According to the Official Record Transcript from
that meeting, the following after-the-fact statements were made concerning the Respondents
previously entering into and meeting in an executive session:
MAYOR L1CASTRO: Thank you. Let the record reflect we went into executive
session to talk about acquisition of land and threatened litigation. The motion to
go into executive session was made by?
MR. BLAZEY: Mr. Puffenberger.
MAYOR L1CASTRO: Seconded by?
MR. BLAZEY: 1 think it was Ms. Murphy.
MAYOR L1CASTRO: A motion to come back into open session was made by?
MR. BLAZEY: Mr. Puffenberger.
MAYOR L1CASTRO: And seconded by?
MS. BECKENBACH: Ms. Beckenbach.
MR. BLAZEY: Ms. Bacci.
(T.d.17, Amended Complaint ^91; T.d.19, Answer ^26; T.d.17, Amended Complaint, Exhibit E
(Official Record Transcript), at page 2, lines 4-17.) Thus, while the official record clearly
indicates the Respondents met and held an executive session, it also indicates only an after-the-
fact assertion that a motion to enter into executive session was made (though not a
contemporaneous record in the transcription that constitutes the official record). Furthermore
- 13 -
and most significantly, completely lacking from the official record is any indication as to: (i)
whether the motion to enter executive session actually stated the purpose(s) thereof; or (ii)
whether there was a roll call vote on the motion or how the members of the village council
actually voted on whatever motion was actually made.
V. ARGUMENT IN SUPPORT OF ASSIGNMENTS OF ERROR
FIRST ASSIGNMENT OF ERROR

The trial court erred in granting summary judgment (T.d. 34) in favor of Respondents-
Appellees.
SECOND ASSIGNMENT OF ERROR

The trial court erred in denying summary judgment (T.d. 34) in favor of Relator-
Appellant.

In conducting a de novo review of a trial court’s ruling on cross-motions for
summary judgment, a court of appeals may affirm the summary judgment in favor
of the appellees, reverse and render a judgment in favor of the appellant, or reverse
and remand the case if neither party has met its summary-judgment burden.
An appellate court will “review the grant or denial of summary judgment de novo,
applying the same standard as the trial court.” Lame, Inc. v. E.G. Systems, Inc., 2015-Ohio-686
^13 (8th Dist.); accord Richardson v. Boes, 179 Ohio App.3d 418, 2008-0hio-6173 ^20 (6th
Dist.)(“[t]he standard of review of a grant or denial of summary judgment is the same for both a
trial court and an appellate court”). Thus, in conducting a de novo review of the cross-motions
for summary judgment and the trial court’s ruling on those motions, this Court may affirm the
judgment in favor of the appellees, reverse and render a judgment in favor of the appellant, or
reverse and remand if neither party has met its summary-judgment burden. See Ohio R. App. P.
12(B).
- 14-
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.
“[Statutory injunctions should issue if the statutory requirements are fulfilled.” State ex
rel. Pizza v. Rezcallah, 84 Ohio St.3d 116, 123, 702 N.E.2d 81, 1998-Ohio-313 (quoting
Ackerman v. Tri-City Geriatric & Health Care, 55 Ohio St.2d 51, 57, 378 N.E.2d 145 (1978)).
For “when an injunction is authorized by statute, normal equity considerations do not apply, and
a party is entitled to an injunction without proving the ordinary equitable requirements, upon a
showing that the party has met the requirements of the statute for issuance of the injunction.”
Procter & Gamble Co. v. Stoneham, 140 Ohio App.3d 260, 268, 747 N.E.2d 268 (1st Dist.
2000)(Painter, J., concurring); accord Hydrofarm, Inc. v. Orendorff 180 Ohio App.3d 339, 905
N.E.2d 658, 2008-0hio-6819 ^26 n.2 (10th Dist.). In fact, in the context of the Open Meetings
Act, the Second District expressly agreed with the proposition that “an equitable injunction
differs from a statutory injunction and that the General Assembly can impose upon the courts a
duty to issue an injunction when certain statutory conditions are met.” Doran v. Northmont Bd.
ofEd., 153 Ohio App.3d 499, 794 N.E.2d 760, 2003-0hio-4084 Tfl2 (2d Dist.).
Codified at R.C. 121.22, the Open Meetings Act imposes, inter alia, certain requirements
regarding the preparation, filing and maintenance of minutes of meetings of public bodies, as
well as containing limitations upon the conducting of meetings by members of a public body.
And any person may bring an action to enforce any provision or requirement of the Act. R.C. §
121.22(f)(1). Furthermore, the Open Meetings Act specifically provides that “[u]pon 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
- 15 -
with its provisions.” R.C. § 121.22(I)(l)(emphases added). Thus, actions brought pursuant to
the Open Meetings Act seek, inter alia, the issuance of a statutory injunction as opposed to an
equitable injunction.
The Open Meetings Act mandates the issuance of a statutory 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; nothing more is required for the issuance of the statutory injunction.
And, less there be any doubt as to whether anything more must be established, the Open
Meetings Act also specifically provides that “[ijrreparable harm and prejudice to the party that
sought the injunction shall be conclusively and irrebuttably presumed upon proof of a violation
or threatened violation of this section.” R.C. § 121.22(I)(3); see Ackerman, 55 Ohio St.2d at 56
(“[i]t is established law in Ohio that, when a statute grants a specific injunctive remedy to an
individual or to the state, the party requesting the injunction ‘need not aver and show, as under
ordinary rules in equity, that great or irreparable injury is about to be done for which he has no
adequate remedy at law’ . . . the traditional concepts for the issuance of equity injunctions do not
apply in statutory injunction actions” (quoting Stephan v. Daniels, 27 Ohio St. 527, 536 (1875)).
“Where the state legislature establishes a statutory injunction, that injunction must be
granted by the court if the statutory requirements for injunctive relief are met.” State ex rel.
Celebrezze v. Cincinnati Land Dev. Corp., 61 Ohio App.3d 747, 750, 573 N.E.2d 1133 (12th
Dist. 1989). Thus, the issue in this case is simply whether the Respondents, i.e., the public
officials of the Village of Bratenahl, either violated or threatened to violate any requirement or
mandate within the Open Meetings Act. As developed below, the undisputed and proper
summary-judgment evidence established both violations and threatened violations of the Act
- 16-
and, accordingly, the trial court erred in not granting summary judgment in favor of Relator-
Appellant.3
1. The Bratenahl Village Council illegally conducted public business by secret-ballot

voting.
As noted above, one of the three categories of the violations of the Open Meetings Act
concerns the members of the Bratenahl Village Council conducting public business by voting
through the use of secret ballots.

A violation or threatened violation of the Open Meeting Act (R.C. § 121.22) occurs
when a public body conducts public business through secret-ballot voting.
The legal premise for the first violation of the Open Meetings Act was succinctly stated
by the Ohio Attorney General as follows:
3 In terms of the “proper” summary-judgment evidence, Respondents-Appellees attached

with their Memorandum Opposing Relator’s Motion for Summary Judgment/Cross-Motion for
Summary Judgment (T.d.28): (i) unauthenticated papers and handwritten notes (Exhibits 1 and
6); and (ii) a few unidentified and unauthenticated pages from what appeared to be excerpts from
a court reporter’s transcription of something (Exhibits 2 to 5). When Relator objected to the
impropriety thereof (see T.d. 30, Relator’s Reply Memorandum in Support of Motion for
Summary Judgment and in Opposition to Cross-Motion for Summary Judgment, at 1-2),
Respondents-Appellees sought to then tender evidentiary materials with their reply
memorandum. Because Civil Rule 56(B) indicates evidence, if any, must be tendered with the
motion for summary judgment itself and Civil Rule 56(C) indicates that a movant’s reply in
support of a motion for summary judgment is limited to argument: “the movant may serve reply
arguments within fourteen days after service of the adverse party’s response,” Relator-Appellant
moved to strike such late-filed evidentiary materials as improper under Civil Rule 56. (T.d. 32,
Motion to Strike Evidentiary Materials.) The trial court did not formally rule upon the Motion to
Strike but in light of its disposition of all claims herein, such motion is considered to have been
denied sub silentio. City of Solon v. Solon Baptist Temple, Inc., 8 Ohio App.3d 347, 457 N.E.2d
858 (8th Dist. 1982)(syllabus ^2)(“[w]here the court fails to rule on an objection or motion, it
will be presumed that the court overruled the objection or motion”); Kane v. Ford Motor Co., 17
Ohio App.3d 111, 112, 477 N.E.2d 662 (8th Dist. 1984)(“we must presume that the trial court, in
failing to respond to appellant’s motion in limine, impliedly overruled the same”).
Thus, while Relator believes such materials are irrelevant, to the extent such materials may
even be considered relevant to the issues herein, the materials which Respondents-Appellants
initially submitted and then belatedly attempted to tender with their reply memorandum must be
rejected.
- 17-
Voting 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.
Ohio Att'y Gen’l Opin. No. 2011-038 (emphasis added). As noted above, despite the specific
inquiry of then-Councilmember Laura Bacci as to whether voting by secret ballot was legally
permissible, the members of the Bratenahl Village Council proceeded deliberately and
consciously to conduct public business of the Council through the use of three secret-ballot votes
in selecting a president pro tempore.
Respondents-Appellees acknowledge that the selection of a president pro tempore of a
village council constitutes public business of the village government and the associated village
council. (T.d.17, Amended Complaint ^57; T.d.19, Answer ^57.) Such a requirement is
expressly mandated by state law, viz., R.C. § 731.10. And voting by the members of a public
body is a formal action that must occur in a meeting open to the public. See State ex rel.
Schuette v. Liberty Twp. Bd.of Trs., 2004-0hio-4431 ^28 (5th Dist.)(“the vote of the public body
must be open to the public”); Mathews v. E. Local Sch. Dist., 2001-Ohio-2372 (4th Dist.);
Angerman v. State Med. Bd. of Ohio, 70 Ohio App. 3d 346, 352, 591 N.E.2d 3 (10th Dist. 1990).
And in fact, as noted above, the Ohio Attorney General has expressly 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.” Ohio Att’y Gen’l
Opin. No. 2011-038 (emphasis added). Thus, the Attorney General appropriately and properly
concluded that “a public body that is subject to the requirements of the Open Meetings law may
- 18-
not vote in an open meeting by secret ballot.” Ohio Att'y Gen’l Opin. No. 2011-038 (emphasis
added).4
Additionally, consideration and appreciation that the Open Meetings Act is remedial
legislation also warrant the finding that conducting public business by secret ballot violates the
Act. For, at the outset, the Act expressly declares that it “shall be liberally construed to require
public officials to take official action and to conduct all deliberations upon official business only
in open meetings unless the subject matter is specifically excepted by law.” R.C. § 121.22(A).
Thus, consistent with the express mandate to liberally construe the Act, as well as its status as a
remedial statute, rules of statutory construction as recognized by the Ohio Supreme Court further
militate in favor a construction that prohibits a public body from conducting public business by
secret-ballot voting:
The statute under construction is a remedial statute, and hence that construction of its
provisions consistent with and most favorable to the fulfillment of the purpose of the
statute should be adopted. As is said in 2 Sutherland on Statutory Construction (2d ed.
Lewis), Section 585:
The courts construe remedial statutes most liberally to suppress the mischief and
advance the remedy.... The courts follow the reason and spirit of such statutes till
they overtake and destroy the mischief which the Legislature intended to
suppress. In doing so they 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.
American Guaranty Co. v. Supply Co., 115 Ohio St. 524, 537, 155 N.E. 127 (1926)(emphasis
added). Thus, remedial statutes, such as the Open Meetings Act, are not to be read with
precision; instead, such statutes and provisions must be read “consistent with and most favorable
to the fulfillment of the purpose of the statute” and even “beyond the letter of the statute” if
4 In Ohio Att'y Gen'l Opin. No. 2011-038, the Attorney General provided an extensive
analysis of the Open Meetings Act to which reference is made herein, as opposed to extensive
quoting therefrom.
- 19-
necessary in order “to suppress the mischief and advance the remedy”. Thus, the Ohio Supreme
Court has readily found violations of the Open Meetings Act even when the specific conduct at
issue was not expressly prohibited within the explicit language of the Act. See White v. King,
147 Ohio St.3d 74,_ N.E.2d_ _ , 2016-0hio-2770 (2016)(while Open Meetings Act does not
specify manner or mode of discussions necessary to constitute a “meeting”, holding that “R.C.
121.22 prohibits any private prearranged discussion of public business by a majority of the
members of a public body regardless of whether the discussion occurs face to face,
telephonically, by video conference, or electronically by e-mail, text, tweet, or other form of
communication”; “[allowing public bodies to avoid the requirements of the Open Meetings Act
by discussing public business via serial electronic communications subverts the purpose of the
act”); State ex rel. Cincinnati Post v. Cincinnati, 76 Ohio St.3d 540, 668 N.E.2d 903, 1996-Ohio-
372 (1996)(series of back-to-back-meetings of less than a majority of municipal council still
constituted a meeting and, thus, through conducting such series of back-to-back-meetings,
members of council violated Open Meetings Act; “[w]e hold that the statute prevents such
maneuvering to avoid its clear intent”).
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
- 20 -
reversible error when it granted summary judgment in favor of Respondents-Appellees and
denied summaryjudgment in favor of the Relator-Appellant.
2. The Finance Committee of the Bratenahl Village Council failed to keep or maintain
meeting minutes which contain sufficient facts and information such that the public
can understand and appreciate the rationale behind its decision.
The second violation or threatened violation of the Open Meetings Act arises from the
deficiencies in the minutes of the Finance Committee of the Bratenahl Village Council.

when a public body fails to keep a full and accurate record of its proceedings, which
includes satisfying the requirement that meeting minutes contain sufficient facts and
information so that the public can understand and appreciate the rationale behind
any decision or action of the public body.
The seminal case of the Ohio Supreme Court to address what is required of a public
office and its members in order keep and maintain “a full and accurate record of [its]
proceedings” is White v. Clinton Cty. Bd. of Comm ’rs, 76 Ohio St.3d 416, 423, 667 N.E.2d 1223,
1996-Ohio-380 (1996). Drawing upon and quoting our Founding Fathers, the Supreme Court
recognized in White that “[o]ne of the strengths of American government is the right of the
public to know and understand the action of their elected representatives” and this principle
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.” Id. at 419. Accordingly, the Ohio
Supreme Court recognized the keeping of a full and accurate record of proceedings serves
various functions, including:
• “public scrutiny is necessary to enable the ordinary citizen to evaluate the workings of his
or her government and to hold government accountable. If the public can understand the
rationale behind its government’s decisions, it can challenge or criticize those decisions
as it finds necessary;”
-21 -
• “keeping full minutes allows members of the public who are unable to attend the
meetings in person to obtain complete and accurate information about the decision
making process of their government.... [T]he interested citizens should ...be able to
examine personally those decisions and the decision-making process involved. Most
people’s day-to-day schedule leaves them with far too little time to attend government
meetings. Therefore, the opportunity to examine a full and complete copy of the minutes
enables the citizens of Ohio to stay informed about the actions and thoughts of their
elected officials.”
Id. at 420 (emphasis added).
Thus, in White, the Court held that “full 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.” Id. (syllabus ^2). And the Court in White also made clear that
full and accurate minutes must “include more than a record of mere roll call votes.” Id. at 419.
And less there be any doubt or argument as to the application to a village council of the
requirements as to what constitute sufficient minutes as set forth White, the Ohio Supreme Court
in State ex rel. Long v. Cardington Village Council, 92 Ohio St.3d 54, 748 N.E.2d 58, 2001-
Ohio-130, unequivocally applied the standards of White to a village council and the committees
thereof. See id. at 56 (“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”); id. at 58 (“the minutes do not include
sufficient facts to understand and appreciate the rationale behind some of the village council’s
decisions....[R]espondents’ minutes of finance and personnel committee meetings do not
include... the detail to meet the comprehensive requirements of R.C. 121.22”).
In fact, with respect to the finance committee at issue in Long, the Supreme Court
described some of the deficiencies in the committee’s meeting minutes as follows:
-22 -
• “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”
• “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”
Id. at 58 (emphases added); see also id. (“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”).
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 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(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.
-23 -
3. With respect to the executive session held during the meeting on August 19, 2015,
either: (i) Respondents failed to comply with the conditions precedent for holding an
executive session; or (ii) if such conditions precedent were actually satisfied, then the
meeting minutes fail to accurately indicate such compliance.
The third violation or threatened violation of the Open Meetings Act arises from the
Bratenahl Village Council meeting in executive session on August 19, 2015. With respect to this
executive session, at least one of three alternative violations or threatened violations of the Open
Meetings Act occurred: (i) the motion to enter the executive session failed to state the purpose of
the executive session, see R.C. 121.22(G)(“the motion and vote to hold that executive session
shall state which one or more of the approved matters listed in [division (G) of Section 121.22]
are to be considered at the executive session”); (ii) there was no roll call vote on any motion to
enter into executive session, see R.C. 121.22(G)(executive session allowed only after “the public
body determines, by a roll call vote, to hold an executive session”); or (iii) if the motion to enter
the executive session explicitly stated a permissible purpose and there was a roll call vote on that
motion, then the official minutes of the meeting are inaccurate as they fail to indicate the specific
content of the motion or the roll call vote thereon.
As indicated above, the official minutes of that meeting, i. e., the transcript, indicates that,
following the executive session itself, the mayor simply announced post hoc reasons for the
executive session, as well as speculating with the clerk of council as to who made and seconded
whatever motion to enter the executive session. (T.d.17, Amended Complaint ^91; T.d.19,
Answer ^26; T.d.17, Amended Complaint, Exhibit E (Official Record Transcript), at page 2, lines
4-17.) Yet, no indication is provided in the official minutes as to: (i) whether the purposes for
the executive session were specifically included in the motion to enter executive session; (ii)
whether there was a roll call vote on any motion to enter executive session; and (iii) if there was,
in fact, a roll call vote, how each member of council voted.
-24-
Minutes of a public body are those that are approved as the minutes, not
information from additional extraneous sources.

A village council speaks only through its minutes or its written record of resolutions,
directives, and action.
In conducting it de novo review concerning the third violation of the Open Meetings Act,
this Court must proceed from an appreciation 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). And a corollary thereto is the additional legal
proposition that “minutes 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-Ohio-2717
^34 (3d Dist.). Thus, post hoc efforts to recreate or to establish through other sources what
supposedly occurred at a meeting of a public body are improper and cannot refute or supplement
the official record. See Long, 92 Ohio St.3d at 57 (rejecting contention that public officials 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 determining
whether respondents complied with their statutory duties, we consider the written minutes
provided to Long rather than the audiotapes”).
-25 -
when a public body meets in executive session without satisfying the conditions
precedent of (i) the motion to enter executive session specifically stating the
statutorily-permissible purpose for the executive session; and (ii) conducting a roll-
call vote on that motion.

when a public body fails to keep a full and accurate record of its proceedings which
includes setting forth: (i) the motion to enter executive session which specifically
states the statutorily-permissible purpose for the executive session; and (ii)
recording the roll-call vote on that motion.
With respect to public bodies holding executive sessions, R.C. 121.22(G) specifically
mandates that, if a public body convenes an executive session during the course of a meeting,
“the motion and vote to hold that executive session shall state which one or more of the approved
matters listed in [division (G) of Section 121.22] are to be considered at the executive session.”
And, R.C. 121.22(G) further allows such an executive session but only after “the public body
determines, by a roll call vote, to hold an executive session.” But as noted above, the official
record of the meeting of August 19, 2015, indicates that the motion for the executive session did
not “state which one or more of the approved matters listed in [division (G) of Section 121.22]
are to be considered at the executive session.” Similarly, the official record of that meeting
indicates that no roll call vote was conducted, let alone how each individual member of council
voted. Based upon the official record, it is clear that Respondents violated and/or threatened to
violate the Open Meetings Act by holding an executive session when both the motion to hold
such a session did not state the purpose of the executive session and no roll call vote was
conducted.
Before the trial court, Respondents asserted that, with respect to the executive session
held during the meeting on August 19, 2015, they “identified in a motion to enter executive
-26-
session the specific purpose for the session [and] conducted a roll call vote on said motion”.
(T.d.31, Respondents ’ Reply Memorandum in Support of Cross-Motion for Summary Judgment,
at 7.) Assuming arguendo and in the alternative that the motion to enter executive session
actually stated the purpose therefor and that there was actually a roll call vote on such motion,
then, based upon the official minutes, i.e., the transcript of the meeting, Respondents would have
still violated the Open Meeting Act. For as developed above, the Ohio Supreme Court
recognized in Long that a village council, its members, the village clerk, as well as the mayor
who presides of the council meetings “have a duty to prepare, file, and maintain full and accurate
minutes for council meetings”. Thus, if there was, in fact, such a motion with the requisite
specificity and a roll call vote as Respondents now contend, then the failure of the official
minutes, i.e., the transcript, to include the content of the actual motion or the roll call vote
thereon would constitute a separate and independent violation by Respondents of their legal
duties under, inter alia, the Open Meetings Act to provide “to prepare, file, and maintain full and
accurate minutes for council meetings”. At a minimum, though, it certainly establishes a
threatened violation of the Act.
The undisputed evidence clearly establishes a violation or threatened violation by
Respondents of the Open Meetings Act by their failure: (i) to identify in a motion to enter
executive session the specific purpose for the session; (ii) to conduct a roll call vote on said
motion; and/or (iii) to prepare, file, and maintain full and accurate minutes for council meetings.
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.
-27-
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.
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
-28-
CERTIFICATE OF SERVICE
I certify that a copy of the foregoing was or will be served by e-mail upon the following
on the 26th day of January 2017:
David J. Matty
Shana A. Samson
Mark B. Marong
Matty, Henrikson & Greve
55 Public Square, Suite 1775
Cleveland, OH 44113
dmattv@mhglegal. com
ssamson@mhglegal. com
mmarong@mhglegal. com
/s/ Curt C. Hartman_ _ _ _ _ _ _ _
-29-
Appendix
Notice of Appeal (T.d.38), December 20 2016

Entry Granting Motion to Strike Remaining Claim (T.d.37), December 20, 2016
Decision Denying Relator’s Motion for Summary Judgment and Granting Respondents’
Cross-Motion for Summary Judgment (T.d.34), December 15, 2016
-30-
COURT OF COMMON PLEAS
CUYAHOGA COUNTY, OHIO
STATE OF OHIO Case No. CV-16-857888

ex rel MORE Bratenahl, et al,
Judge McDonnell
Relators,
v.
NOTICE OF APPEAL
VILLAGE OF BRATENHAL, OHIO,
et al,
Respondents.
Now comes the STATE OF OHIO, by and through Relator PATRICIA MEADE, and
hereby appeals to the Cuyahoga County Court of Appeals, Eighth Appellate District, from the
Final Judgment Entry entered herein on December 20, 2016, a copy of which is attached hereto,
as well as all orders and entries subsumed therein including, without limitation, the Journal Entry
dated December 15, 2016, granting Respondents’ cross-motion for summary judgment and
denying Relator’s motion for summary judgment, a copy of which is also attached hereto.
Respectfully submitted,
/s/ Curt C. Hartman_ _ _ _ _ _ _ _

Christopher P. Finney (0038998) Curt C. Hartman (0064242)
Finney Law Firm LLC The Law Firm of Curt C. Hartman
4270 Ivy Pointe Blvd., Suite 225 7394 Ridgepoint Drive, Suite 8
Cincinnati, Ohio 45245 Cincinnati, Ohio 45230
(513)943-6655 (513)379-2923
chris@finneylawfirm. com hartmanlawfirm@fuse.net
Attorneys for Relators
Electronically Filed 02/20/201® 28:29 / FKLINGEQTHEIRDTHAN8IHI©CI:fflNr/rCftEt0l\tO52®t 0 C0n©imaii0>n Nbr. 971162 / CLKPW

CERTIFICATE OF SERVICE
I certify that a copy of the foregoing was or will be served by e-mail upon the following
on the 20th day of December 2016:
David J. Matty
Shana A. Samson
Mark B. Marong
Matty, Henrikson & Greve
55 Public Square, Suite 1775
Cleveland, OH 44113
dmattv(a),mhslesal. com
ssamson(d),mhslesal. com
mmarons&mhslesal. com
/s/ Curt C. Hartman_ _ _ _ _ _ _ _
- 2
-
Electronically Filed 02/20/201® 28:29 / FIQINGmTHEIRDra««N8ra©TI®Nr/rCiA20D1O52»1 0 COnatmaiiOrn Nbr. 971162 / CLKPW

Electronically Filed 02/26/2010 28:29 / FIDlNGEDTHEIRrTHAN8IM©TI:fflNr/\CftEt6l\t052®t 0EOfiffitmaiiOm Nbr. 971162 / CLKPW
COURT OF COMMON PLEAS
STATE OF OHIO Case No. CV-161-857888

ex rel. MORE Bratenahl, et al.
Judge McDonnell
Relators,
v.
ENTRY AMENDING COMPLAINT
VILLAGE OF BRATENHAL, OHIO, : BY STRIKING COUNT IV THEREIN
et al., :
Respondents.
Upon Relator’s Motion to Amend the Complaint to Strike Count IV Therein, the Court
finds the motion well taken and therefore it is GRANTED. The Complaint shall be amended
such that Count IV therein is STRICKEN.
This entry thus resolves all claims against all parties herein. As such, the pretrial
conference previously scheduled for January 5, 2017, is hereby cancelled.
SO ORDERED.
Electronically Filed ' 02/26/2017 26:29 / FIDlNGmTH£RSTCHftNa0©TlfflNr/rCiflrrt6MO62010COnGiimaiiOn Nbr. 971162 / CLKPW

96873051
96873051
IN THE COURT OF COMMON PLEAS

STATE OF OHIO EX REL. MORE BRATENAHL, ET Case No: CV-16-857888
AL
Plaintiff Judge: NANCY R MCDONNELL
VILLAGE OF BRATENHAL, OHIO, ET AL

Defendant
JOURNAL ENTRY
PLAINTIFF STATE OF OHIO EX RELATOR PATRICIA MEADE'S MOTION FOR SUMMARY JUDGMENT FILED ON
9/12/16 IS DENIED. DEFENDANTS' CROSS-MOTION FOR SUMMARY JUDGMENT FILED ON 11/2/16 IS GRANTED. IN
PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT PLAINTIFF INDICATES THAT SHE IS NOT PURSUING COUNT IV
OF THE AMENDED COMPLAINT. NO DISMISSAL HAS BEEN FILED AS TO COUNT IV AND THE CLAIM REMAINS
PENDING. PRETRIAL SET FOR 1/5/17 AT 10:00 A.M.
12/14/2016
RECEIVED FOR FILING
12/15/2016 15:30:35
NAILAH K. BYRD, CLERK
Page 1 of 1
Electronically Filed 02/20/2010 26:29 / FHDING^THERTMAHaM©Tt0iNr/tCAct6Mia5301 0 COfiQltfaiiOn Nbr. 971162 / CLKPW

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NAILAH K.

APPEUUANT'S BRIEF FIFED

By: CURT C. HARTMAN 0064242

Confirmation Nbr. 971162

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

In the Court of Appeals

STATE OF OHIO ex rel. PATRICIA MEADE,

VILLAGE OF BRATENAHL, et al.,

APPELLANT’S MERIT BRIEF

Counselfor Appellant: Counselfor Appellees:

2. The Meeting Minutes of the Finance Committee simply contain a recitation of

1. The Bratenahl Village Council conducted public business by secret-ballot

2. The Finance Committee of the Bratenahl Village Council failed to keep or

Issue Presented to Review and Argument

Issue Presented to Review and Argument

Lame, Inc. v. E.G. Systems, Inc.,

Pattison v. W. W. Grainger, Inc.,

White v. Clinton Cty. Bd. of Comm’rs,

Ohio Attorney General Opinions

violations or threatened violations and, thus, Relator-Appellant was entitled to summary

summary judgment in favor of Respondents-Appellees and denying summary judgment in favor

FIRST ASSIGNMENT OF ERROR: The trial court erred in granting summaryjudgment

(T.d.34) in favor of Respondents-Appellees.

SECOND ASSIGNMENT OF ERROR: The trial court erred in denying summary

judgment (T.d.34) in favor of Relator-Appellant.

II. STATEMENT OF THE ISSUES PRESENTED FOR REVIEW

FIRST ISSUE PRESENTED FOR REVIEW: In conducting a de novo review of a trial

THIRD ISSUE PRESENTED FOR REVIEW: A violation or threatened violation of the

FOURTH ISSUE PRESENTED FOR REVIEW: A violation or threatened violation of

the rationale behind any decision or action of the public body.

minutes or its written record of resolutions, directives, and action.

SEVENTH ISSUE PRESENTED FOR REVIEW: A violation or threatened violation of

conducting a roll-call vote on that motion.

EIGHTH ISSUE PRESENTED FOR REVIEW: A violation or threatened violation of

and (ii) recording the roll-call vote on that motion.

pursuant to R.C. § 2501.02 and Ohio R. App. P. 4.

Complaint.) Subsequently, on April 21, 2016, Relator-Appellant filed an amended complaint,

for Summary Judgment; T.d.28, Respondents’ Cross-Motion for Summary Judgment.) On

Appellant for summaryjudgment. (T.d.34, Entry.)

IV. STATEMENT OF THE FACTS

and accurate minutes of such meetings.

As a resident and taxpayer in the Village of Bratenhal, Relator-Appellant Patricia Meade

1. The Bratenahl Village Council conducted public business by secret-ballot voting.

After two councilmembers were nominated to serve as president pro tempore,

Notwithstanding then-Councilmember Laura Bacci raising or questioning the legality of voting

Record Transcript), at page 17, lines 5-9.)

at page 18, line 23 - page 19, line 2.)

2. The meeting minutes of the Finance Committee simply contain a recitation of

considered, Relator-Appellant also audio-recorded these meetings or obtained such recordings.

Committee’s decisions and actions.

January 19, 2016

Item 2 concerned a recommendation for the authorization of payment of claims.

item 3: Ord. 3E56 — Amend!nu Administrative Code re: "Holidavs"

Item 3 concerned expanding the list of holidays recognized by the village. As

Item 4: Ord. 3S57 -Additional Aoorooriations for Current Ex censer

Item 5 involved extensive discussions (nearly 15 minutes) concerning the

Minutes Void of any reference of public comments and responses thereto.

Item 2 concerned a recommendation for the authorization of the transfer of funds.

ffem 3: Ord. 3860- Pay Claims

Item 3 concerned a recommendation for the authorization of payment of claims.

March 14, 2016

As a monthly matter, Item 2 concerned the recommendation for the authorization

item 6: Review of Service Garage Condition and Recommendations

April 18, 2016

2017.1.26 Appellant's Merit Brief

2017.1.26 Appellant's Merit Brief