State ex rel. Zimmerman v. Avon Lake

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State

ex rel. Zimmerman v. Avon Lake, Slip Opinion No. 2026-Ohio-1090.]

NOTICE

This slip opinion is subject to formal revision before it is published in an

advance sheet of the Ohio Official Reports. Readers are requested to

promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65

South Front Street, Columbus, Ohio 43215, of any typographical or other

formal errors in the opinion, in order that corrections may be made before

the opinion is published.

SLIP OPINION NO. 2026-OHIO-1090

THE STATE EX REL. ZIMMERMAN ET AL. v. THE CITY OF AVON LAKE ET AL.

[Until this opinion appears in the Ohio Official Reports advance sheets, it

may be cited as State ex rel. Zimmerman v. Avon Lake, Slip Opinion No.

2026-Ohio-1090.]

Mandamus—Open meetings—R.C. 121.22(C)—Public-records requests—R.C.

149.43—Writ sought to order preparation of minutes for previously held

meetings of a committee of a community-improvement corporation and

production of those minutes in response to a public-records request—Writ

granted ordering preparation and production of the requested minutes for

previously held committee meetings at which a majority of its members

discussed public business—Relator awarded court costs, and relator’s

requests for attorney fees and statutory damages denied.

(No. 2024-1711—Submitted November 18, 2025—Decided March 31, 2026.)

IN MANDAMUS.

__________________

The per curiam opinion below was joined by KENNEDY, C.J., and FISCHER,

SUPREME COURT OF OHIO

DEWINE, BRUNNER, DETERS, HAWKINS, and SHANAHAN, JJ.

Per Curiam.

{¶ 1} Relators, William Zimmerman; Ohio Citizens for Honesty, Integrity,

and Openness in Government, Ltd. (“Ohio Citizens”); Taxpayers Coalition; and

Protect Our Lake and Environment, L.L.C. (“POLE”), bring this mandamus action

against 14 respondents. Respondents are the City of Avon Lake (“the city”), the

Avon Lake Community Improvement Corporation (“Avon Lake CIC”), the

Brownfield Funding Committee (“Brownfield committee”), and 11 individual

persons. Relators ask for a writ of mandamus ordering respondents to prepare the

minutes for previously held Brownfield committee meetings and produce those

minutes in response to a public-records request. Relators also ask for awards of

court costs, attorney fees, and statutory damages.

{¶ 2} For the following reasons, we grant a writ of mandamus ordering

respondents to prepare and produce the requested minutes for previously held

Brownfield committee meetings at which a majority of its members discussed

public business. We award relators court costs but deny their requests for awards

of attorney fees and statutory damages. We deny relators’ “motion for costs of the

proceedings” and “motion for rebuttal evidence and/or motion to strike.” We deny

respondents’ motion for a protective order as moot.

I. FACTS AND PROCEDURAL HISTORY

A. Background

{¶ 3} The city is a charter municipality in the State of Ohio, and Avon Lake

CIC is the city’s agency and instrumentality for economic-development activities

under R.C. 1724.10. The Brownfield committee was created by Avon Lake CIC to

collect and evaluate information related to redevelopment projects. The following

named respondents are current or past members of the Avon Lake CIC board of

directors and currently hold or formerly held certain positions of that body: Janice

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Lapina, former president; Steve Luca, former president and former vice president;

Ross Vincent, former vice president; Ted Esborn, secretary and treasurer; Ron

Kovach, former vice president; Greg Zilka, former board member; Zach Arnold,

former board member; and Mark Spaetzel, board member. Some of these named

respondents also currently hold or formerly held certain positions with the city. For

example, Esborn is the city’s community-development director. As the secretary

for Avon Lake CIC, Esborn is required to attend meetings of the Avon Lake CIC

board of directors, keep meeting minutes, and provide copies of those minutes to

the city’s mayor and the clerk of the Avon Lake City Council once the board

approves the minutes. Zilka is a former mayor of the city, and Arnold is a former

Avon Lake City Council member. Named respondents Luca, Dan Bucci, Andrew

Perry, and Jeff Brausch were members of the Brownfield committee, and Luca held

the position of chairman.

{¶ 4} Zimmerman is a resident of the city. Ohio Citizens, Taxpayers

Coalition, and POLE are nonprofit companies. Ohio Citizens claims that its

purposes include promoting openness and transparency in government. Taxpayers

Coalition asserts that its purposes include monitoring various aspects of

government activity. POLE claims that its purposes include addressing

environmental issues primarily in the city.

{¶ 5} On October 29, 2024, Ohio Citizens submitted a public-records

request to the city, requesting records related to the Brownfield committee,

including its meeting minutes. On November 15, the city responded by informing

Ohio Citizens that it did not have minutes for previously held Brownfield

committee meetings. On December 3, relators sent a “taxpayers’ demand,” citing

R.C. 733.56 through 733.59, to the city’s law director, demanding that the law

director bring an appropriate legal action to compel the production of the requested

minutes. On December 6, the law director responded to relators’ demand, claiming

that no minutes for Brownfield committee meetings existed apart from the minutes

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of Avon Lake CIC meetings and indicating that there was no basis to bring a

mandamus action to compel the production of records that did not exist.

B. Procedural history

{¶ 6} On December 12, 2024, relators initiated this mandamus action under

Ohio’s Sunshine Law, R.C. 121.22, and Public Records Act, R.C. 149.43. Relators’

mandamus claim is limited to the requested minutes for previously held Brownfield

committee meetings.1 Specifically, in their complaint, relators demand a writ

ordering respondents to prepare and produce the requested minutes. They also ask

for awards of court costs, attorney fees, and statutory damages. On the same day,

relators also filed a “motion for costs of the proceedings,” requesting that we set

the costs of the proceedings at $100.

{¶ 7} Respondents filed a motion to dismiss. We granted the motion in part

with respect to named respondent Todd Davis, thus dismissing him as a party, but

we denied the motion with respect to the remaining 14 respondents. 2025-Ohio-

1876. We issued an alternative writ, ordered the remaining respondents to file an

answer, and set a schedule for the submission of evidence and briefs. Id.

{¶ 8} After filing their answer, respondents filed a motion for a protective

order under Civ.R. 26(C) to prevent relators from conducting discovery. Relators

timely filed their response to that motion, and the parties submitted evidence on

June 17, 2025.

{¶ 9} The parties filed briefs, and relators filed a reply brief. Relators also

timely filed a “motion for rebuttal evidence and/or motion to strike.” Respondents

timely responded to that motion.

1. Although relators also requested relief as a taxpayers’ action “per law both common and

statutory,” no further explanation is provided for this requested relief. And relators do not set forth

an argument in support of this claim in their merit brief. See State ex rel. Howard v. Watson, 2023-

Ohio-3399, ¶ 16 (“the court need not address request for writ of mandamus that was raised in

complaint but was not specifically argued in merit brief”), citing State ex rel. Ohio Gen. Assembly

v. Brunner, 2007-Ohio-3780, ¶ 26, fn. 4. Thus, relators forfeited their claim for relief as a taxpayers’

action.

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C. Submitted evidence

{¶ 10} Relators’ evidence consists of 26 exhibits and the affidavits of

Zimmerman and Gerald Phillips, the attorney representing relators. The exhibits

include the city ordinances designating Avon Lake CIC as an agency and

instrumentality of the city, the Avon Lake CIC Code of Regulations, Avon Lake

CIC meeting minutes, Ohio Citizens’ public-records request and relators’

taxpayers’ demand, and documentation detailing redevelopment projects that Avon

Lake CIC and the Brownfield committee either worked on or have some alleged

connection to.

{¶ 11} Respondents’ evidence consists of the affidavit of Esborn, a partial

copy of the city’s charter, Avon Lake CIC meeting minutes, the Avon Lake CIC

Code of Regulations, and past correspondence with relators.

{¶ 12} In his affidavit, Esborn, the secretary-treasurer of Avon Lake CIC,

avers that the Brownfield committee was “a purely advisory committee” that served

“as a liaison between [Avon Lake CIC], the City, and members of the public.” He

avers that Avon Lake CIC never delegated decision-making authority to the

Brownfield committee and that there were no Brownfield committee meetings at

which it “took or agreed to take or recommend any actions on behalf of [Avon Lake

CIC].” Esborn further avers that he was the person who searched for the requested

minutes for previously held Brownfield committee meetings and that the city’s

response to the request stated that the city had no such minutes. However, Esborn

does not attest that no minutes for Brownfield committee meetings exist. Esborn

avers that after relators filed this mandamus action, the Brownfield committee

“functionally, if not formally, disbanded.” Esborn does not explain what he means

by “functionally, if not formally, disbanded,” and other than this assertion,

respondents provide no evidence that the Brownfield committee has disbanded.

Esborn also makes several assertions that Phillips lacks personal knowledge of the

facts and evidence of this case.

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II. ANALYSIS

A. Motions

{¶ 13} While this action was pending, relators filed two motions and

respondents filed one motion. For the following reasons, we deny each motion.

1. Relators’ “motion for costs of the proceedings”

{¶ 14} Relators filed a “motion for costs of the proceedings,” requesting

that the court set the costs of the proceedings at $100 in accordance with the Rules

of Practice of the Supreme Court of Ohio. The filing fee for an original action is

$100, S.Ct.Prac.R. 3.04, and relators paid the filing fee. Additionally, S.Ct.Prac.R.

18.05(A)(2) states that costs will be assessed at the conclusion of an original action

brought in this court. Because relators offer no explanation beyond seemingly

asking that we comply with the Rules of Practice of the Supreme Court of Ohio, we

deny the motion.

2. Respondents’ motion for a protective order

{¶ 15} In their motion for a protective order, respondents sought to prevent

relators from conducting depositions during the evidence-submission period.

However, respondents did not request expedited review of their motion, and relators

timely filed their response to the motion the day before the June 17, 2025

evidentiary deadline, see 2025-Ohio-1876. Because the evidentiary deadline

closed discovery, a protective order is moot. Therefore, we deny respondents’

motion for a protective order as moot.

3. Relators’ “motion for rebuttal evidence and/or motion to strike”

{¶ 16} Relators filed a “motion for rebuttal evidence and/or motion to

strike,” seeking to rebut certain averments made by Esborn in his affidavit. To do

this, relators request leave to submit another affidavit by Phillips to rebut Esborn’s

averments attesting that Phillips lacks personal knowledge of the facts and evidence

of this case.

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January Term, 2026

{¶ 17} In his rebuttal affidavit, Phillips attests that he has personal

knowledge of the exhibits that relators submitted as evidence, that those exhibits

are true and accurate, and that he has personal knowledge of the facts of this case.

Phillips also attests to what he believes certain exhibits prove. Respondents oppose

relators’ motion, arguing that relators’ complaint contains a “false” claim about the

Brownfield committee’s decision-making authority and that Phillips’s rebuttal

affidavit lacks a factual basis for his claimed personal knowledge of that “false”

claim.

{¶ 18} S.Ct.Prac.R. 12.06(B) provides that a “[r]elator may file a motion for

leave to file rebuttal evidence within the time permitted for the filing of relator’s

reply brief” and that the “rebuttal evidence shall be attached to the motion for

leave.” ‘“Rebutting evidence is [evidence] given to explain, refute, or disprove

new facts introduced into evidence by the adverse party; it becomes relevant only

to challenge the evidence offered by the opponent, and its scope is limited by such

evidence.’” (Bracketed text in original.) State ex rel. Mobley v. Powers, 2024-

Ohio-104, ¶ 11, quoting State v. McNeill, 1998-Ohio-293, ¶ 44. We have discretion

in determining whether to admit rebuttal evidence. Id.

{¶ 19} Phillips’s rebuttal affidavit attests to his personal knowledge of the

facts and evidence of this case that he largely already attested to in his prior affidavit

that relators submitted as evidence. Accordingly, we deny the motion.

B. Mandamus relief

{¶ 20} The mandamus relief that relators seek here relates to the Open

Meetings Act’s requirements concerning preparation of a public body’s meeting

minutes. Specifically, relators seek to enforce R.C. 121.22(C), which “requires a

public body to prepare, file, and maintain minutes of its meetings,” State ex rel.

Ames v. Portage Cty. Bd. of Commrs., 2021-Ohio-2374, ¶ 21. A “meeting” is

defined as “any prearranged discussion of the public business of the public body by

a majority of its members.” R.C. 121.22(B)(2). “Once these minutes are prepared,

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Ohio’s Public Records Act, R.C. 149.43, requires the public body to permit public

access to the minutes upon request.” State ex rel. Long v. Cardington Village

Council, 2001-Ohio-130, ¶ 13. “Mandamus is an appropriate remedy to compel a

public body to prepare and produce full and accurate meeting minutes under R.C.

121.22 and 149.43.” Ames at ¶ 24. Therefore, relators argue that they are entitled

to a writ ordering respondents to prepare the minutes for previously held

Brownfield committee meetings under R.C. 121.22(C) and produce those minutes

under R.C. 149.43.

{¶ 21} For relators to prevail on their mandamus claim under the Open

Meetings Act, they “must establish, by clear and convincing evidence, (1) a clear

legal right to the requested relief, (2) a clear legal duty on the part of [respondents]

to provide it, and (3) the lack of an adequate remedy in the ordinary course of the

law.” Id. at ¶ 12. For relators to prevail on their mandamus claim under the Public

Records Act that is based on the public-records request made by Ohio Citizens, “the

first two elements are the same, but [they] need not establish the lack of an adequate

remedy in the ordinary course of the law.” Id.

C. Respondents mischaracterize relators’ requested relief

{¶ 22} We must first address respondents’ argument that relators’ requested

relief seeks a declaratory judgment and prohibitory injunction, not mandamus

relief. They argue that what relators truly request is for this court to declare that

the Brownfield committee is subject to open-meeting and minute-keeping

requirements and then enjoin it to generally comply with R.C. 121.22(C) in the

future. Respondents mischaracterize the requested relief.

{¶ 23} A proper mandamus action seeks to compel a public entity to

perform a clear legal duty. See State ex rel. Gen. Motors Corp. v. Indus. Comm.,

2008-Ohio-1593, ¶ 9. “What distinguishes a proper mandamus complaint from an

improper one is not whether the relator is seeking declaratory judgment as part of

the complaint but whether the complaint seeks to prevent or compel official action.”

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January Term, 2026

State ex rel. Ethics First—You Decide Ohio Political Action Commt. v. DeWine,

2016-Ohio-3144, ¶ 10. “The difference between the two forms of relief is simple:

‘a prohibitory injunction is used to prevent a future injury, but a mandatory

injunction is used to remedy past injuries.’” State ex rel. Gadell-Newton v. Husted,

2018-Ohio-1854, ¶ 10, quoting Gen. Motors Corp. at ¶ 12.

{¶ 24} Here, relators request a writ ordering respondents to prepare the

minutes for previously held Brownfield committee meetings and comply with a

public-records request for those minutes. Mandamus is an appropriate remedy to

compel a public body to prepare and produce full and accurate meeting minutes.

Ames, 2021-Ohio-2374, at ¶ 24. And we have previously “granted writs of

mandamus directing a public body to ‘prepare, file, and maintain full and accurate

minutes and to conduct all meetings in public, except for properly called executive

sessions.’” Id. at ¶ 18, quoting Long, 2001-Ohio-130, at ¶ 34. Because relators

seek to compel action by the respondents, not prevent respondents from acting, they

may seek mandamus relief. Therefore, we reject respondents’ argument that

relators’ requested relief seeks a declaratory judgment and prohibitory injunction.

D. Whether the Brownfield committee is subject to R.C. 121.22(C)’s

requirements

{¶ 25} Relators argue that Avon Lake CIC is required to hold open meetings

and keep minutes of those meetings under R.C. 121.22(C) and that the Brownfield

committee has the same requirements because it is a committee of Avon Lake CIC.

Respondents disagree.

1. R.C. 149.43 and 121.22(C) apply to the Avon Lake CIC

{¶ 26} The city has adopted R.C. 149.43 as its public-records policy, see

Avon Lake Code of Ord. 274.06, and Avon Lake CIC has adopted the city’s public-

records policy. Respondents invoke the Home Rule provisions of the Ohio

Constitution as the basis for their argument that R.C. 121.22(C) does not apply to

the city, Avon Lake CIC, or the Brownfield committee.

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{¶ 27} Under the Home Rule provisions in Article XVIII, Sections 3 and 7

of the Ohio Constitution, a charter municipality may enact a charter and ordinances

in matters of local self-government that are different from statutory provisions, and

a charter controls when it conflicts with general statutory provisions, State ex rel.

Lightfield v. Indian Hill, 69 Ohio St.3d 441, 442 (1994) (“In matters of local self-

government, if a portion of a municipal charter expressly conflicts with a parallel

state law, the charter provisions will prevail.”). Charter municipalities may set

open-meeting requirements as a matter of local self-government. See Fox v.

Lakewood, 39 Ohio St.3d 19, 22 (1988).

{¶ 28} A charter municipality must clearly and expressly state the areas in

which it intends to depart from statutory provisions. Lightfield at 443. When a

municipality’s charter is not inconsistent with R.C. 121.22, the statute applies to

the charter municipality. See State ex rel. Cincinnati Post v. Cincinnati, 1996-

Ohio-372, ¶ 27 (holding that R.C. 121.22 applied to a charter municipality because

the charter was “certainly not inconsistent with the Sunshine Law”). Therefore,

whether relators are entitled to mandamus relief depends on whether the city

implements its own specific open-meeting and minute-keeping requirements that

depart from the requirements set forth in R.C. 121.22(C).

{¶ 29} Respondents identify no charter provision or city ordinance that

explicitly supersedes R.C. 121.22(C)’s requirements. And the city’s charter

provides that “[a]ll general laws of the State of Ohio as now or hereafter enacted

which are not in conflict with this Charter, as now enacted or hereafter amended,

or with any ordinance enacted hereunder shall apply to” the city. Avon Lake

Charter Ch. 13, § 66. Because the city does not implement its own specific open-

meeting and minute-keeping requirements that depart from the requirements set

forth in R.C. 121.22(C), the statute applies to Avon Lake CIC. See Cincinnati Post

at ¶ 27.

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January Term, 2026

2. Avon Lake CIC is a public body subject to R.C. 121.22(C)’s requirements

{¶ 30} For purposes of R.C. 121.22, the definition of “public body”

includes “any legislative authority or board, commission, committee, council,

agency, authority, or similar decision-making body of any . . . municipal

corporation . . . or other political subdivision or local public institution.” (Emphasis

added.) R.C. 121.22(B)(1)(a). R.C. 1724.10(A)(1) provides that a community-

improvement corporation created under R.C. Ch. 1724 may be designated “as the

agency of each [participating] political subdivision for the industrial, commercial,

distribution, and research development in such political subdivision” when the

legislative authority of the political subdivision has determined that doing so

promotes “the health, safety, morals, and general welfare of its inhabitants through

the designation of a community improvement corporation as such agency.”

(Emphasis added.); see also State ex rel. Burton v. Greater Portsmouth Growth

Corp., 7 Ohio St.2d 34, 40 (1966) (R.C. 1724.10 “in general provides that a county

or municipality may designate a community improvement corporation as its agent

for the industrial, commercial and research development of the area”).

{¶ 31} As respondents acknowledge in their merit brief, once Avon Lake

CIC was organized in the manner provided in R.C. Ch. 1724, it became “the agency

and instrumentality of the city for economic development generally, and lakefront

redevelopment specifically within the city,” Avon Lake Code of Ord. 250.01.

Because Avon Lake CIC is designated as an “agency” of the city, we conclude that

Avon Lake CIC is a public body that is subject to the requirements of R.C.

121.22(C).

{¶ 32} Regarding whether a community-improvement corporation’s

records are subject to disclosure under the Public Records Act, R.C. 149.43(A)(1)

defines public records as “records kept by any public office, including, but not

limited to, state, county, city, village, township, and school district units.” R.C.

1724.11 does not explicitly subject a community-improvement corporation that is

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designated as an agency under R.C. 1724.10 to the Public Records Act, but R.C.

1724.11 states that specific information maintained by the corporation—such as

certain location and improvement information submitted by an entity to the

corporation—is not a public record subject to R.C. 149.43, see R.C. 1724.11(A).

And R.C. 1724.11(B)(1) provides that when the board of directors of a community-

improvement corporation or any of the board’s committees or subcommittees meet

to consider information that is not a public record under R.C. 1724.11(A)(1), the

board, committee, or subcommittee, “by majority vote of all members present, may

close the meeting during consideration of the confidential information.” R.C.

1724.11(B)(1) continues that the board or any of its committees or subcommittees

“shall consider no other information during the closed session.” The General

Assembly’s excluding certain records from disclosure under the Public Records Act

shows that other records are subject to disclosure.

{¶ 33} Accordingly, because Avon Lake CIC was designated as an agency

of the city under R.C. 1724.10(A)(1) and Avon Lake Code of Ord. 250.01, and no

charter provision or city ordinance explicitly supersedes R.C. 121.22(C) with

respect to Avon Lake CIC, we conclude that Avon Lake CIC is a public body that

must comply with R.C. 121.22(C)’s requirements. See Cincinnati Post, 1996-

Ohio-372, at ¶ 27. Therefore, some records in Avon Lake CIC’s possession may

be subject to disclosure under the Public Records Act.

3. The Brownfield committee also must follow R.C. 121.22(C)’s

requirements

{¶ 34} Having determined that Avon Lake CIC must comply with R.C.

121.22(C)’s requirements, we must now determine whether the Brownfield

committee, as an entity created by Avon Lake CIC, has the same requirements. For

the following reasons, we conclude that the Brownfield committee is also subject

to R.C. 121.22(C)’s requirements.

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January Term, 2026

a. The Brownfield committee is a committee of Avon Lake CIC

{¶ 35} As set forth above, Avon Lake CIC is a public body under R.C.

121.22(B)(1)(a). Under R.C. 121.22(B)(1)(b), “[a]ny committee or subcommittee

of a body described in [R.C. 121.22(B)(1)(a)]” is also a public body.

{¶ 36} Under Avon Lake CIC’s Code of Regulations, Avon Lake CIC,

through its board of directors, may establish special or standing committees that

consist of members that are appointed by the board and those committees may

exercise the power and authority delegated to them by the board. Further, all

committee actions must be reported to the board at the next board meeting

following such actions, and the board may revise or alter the committee’s actions

as it sees fit. Avon Lake CIC created the Brownfield committee to collect and

evaluate information related to redevelopment projects, and the evidence shows

that Brownfield committee members attended Avon Lake CIC meetings to provide

updates and recommendations on those projects.

{¶ 37} Relators argue that the Brownfield committee is subject to R.C.

121.22(C)’s requirements because it is a committee of Avon Lake CIC, irrespective

of its making recommendations to Avon Lake CIC that require the approval of

Avon Lake CIC. Respondents disagree, arguing in their merit brief that the

Brownfield committee is an “advisory group without delegated authority to act” on

behalf of Avon Lake CIC and that because it lacks decision-making authority, the

Brownfield committee is not a public body that is subject to R.C. 121.22(C). For

support, respondents cite State ex rel. Am. Civ. Liberties Union of Ohio, Inc. v.

Cuyahoga Cty. Bd. of Commrs., 2011-Ohio-625 (“ACLU”).

{¶ 38} In ACLU, we considered what makes an entity a “committee” of a

“public body” for purposes of R.C. 121.22. In so doing, we concluded that “[a]

‘committee’ is a ‘subordinate group to which a deliberative assembly or other

organization refers business for consideration, investigation, oversight, or action,’

[Black’s Law Dictionary (9th Ed. 2009)], or ‘a body of persons delegated to

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consider, investigate, or take action upon and usu[ally] to report concerning some

matter or business,’ [Webster’s Third New International Dictionary (1986)].”

ACLU at ¶ 43. When we evaluated whether each entity in question was a committee

of a public body or was a “workgroup” of private citizens not subject to R.C.

121.22(C)’s requirements, we considered each entity’s creation and oversight and

whether it was delegated charter-mandated duties. See id. at ¶ 44. Because the

public body did not create, direct, or delegate authority to the entities in question,

we concluded that each entity was not a committee of a public body. See id.

{¶ 39} Here, the evidence shows that (1) the Brownfield committee was

created by Avon Lake CIC as an advisory committee and (2) Brownfield members

advised Avon Lake CIC on redevelopment projects. But the evidence does not

show that Avon Lake CIC delegated decision-making authority to the Brownfield

committee, and respondents argue that the Brownfield committee must be a

decision-making body to trigger R.C. 121.22(C)’s requirements. The lack of

delegated authority by a public body is one factor that we previously considered

when evaluating whether a particular entity was a committee of a public body, but

it is not the only relevant factor. See id. And unlike in ACLU, in which a public

body did not create the entities in question, see id., the evidence here shows that the

Brownfield committee was created by Avon Lake CIC, a public body.

{¶ 40} Moreover, R.C. 121.22(B)(1)(b) does not require that a committee

be a formal decision-making body. Indeed, appellate courts have held that an

advisory committee may be a public body for purposes of R.C. 121.22. See, e.g.,

State ex rel. Mohr v. Colerain Twp., 2022-Ohio-1109, ¶ 23 (1st Dist.); Kanter v.

Cleveland Hts., 2021-Ohio-4318, ¶ 20-23, 26 (8th Dist.); Thomas v. White, 85 Ohio

App.3d 410, 412 (9th Dist. 1992). Accordingly, we conclude that the Brownfield

committee is a committee of Avon Lake CIC under R.C. 121.22(B)(1)(b) and is

therefore a public body.

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January Term, 2026

b. The Brownfield committee is subject to R.C. 121.22(C)’s requirements

{¶ 41} Respondents argue that even if the Brownfield committee is

considered a committee of Avon Lake CIC under R.C. 121.22(B)(1)(b), the

Brownfield committee is still not required to keep meeting minutes under a charter

provision or city ordinance. Respondents do not cite a charter provision or city

ordinance stating that the Brownfield committee is exempt from R.C. 121.22(C)’s

requirements; instead, they argue that the city places different meeting

requirements on its various boards, commissions, agencies, and committees and

that the lack of an express requirement in a charter provision or city ordinance for

a specific entity to conduct open meetings or keep meeting minutes shows that no

such requirement is placed on the entity. Their argument is not persuasive.

{¶ 42} Under a Home Rule analysis, express language in a municipal

charter must demonstrate a conflict with a statute to supersede the statute. See State

ex rel. N. Olmsted v. Cuyahoga Cty. Bd. of Elections, 2001-Ohio-1626, ¶ 17; see

also State ex rel. Meyers v. Columbus, 71 Ohio St.3d 603, 606 (1995) (“In order for

the municipal charter to supersede state law regarding police promotions, the

conflict must be by express charter language rather than mere inference.”). Because

respondents point to no charter provision or city ordinance that conflicts with the

requirements of R.C. 121.22(C), the statute applies to the Brownfield committee.

E. Relators are entitled to a writ of mandamus

{¶ 43} Respondents argue that relators are not entitled to a writ of

mandamus ordering the production of minutes for previously held Brownfield

committee meetings, because no minutes exist. Generally, a public body has no

duty to produce records that do not exist. E.g., State ex rel. Adkins v. Dept. of

Rehab. & Corr. Legal Dept., 2024-Ohio-5154, ¶ 17. However, we have previously

issued a writ of mandamus ordering a public body to prepare and produce meeting

minutes that it had a legal duty to prepare and maintain. See Cincinnati Post, 1996-

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Ohio-372, at ¶ 13, 29; see also State ex rel. Fairfield Leader v. Ricketts, 56 Ohio

St.3d 97, 101 (1990); Ames, 2021-Ohio-2374, at ¶ 24.

{¶ 44} In Cincinnati Post, a newspaper company filed a mandamus action

to compel the City of Cincinnati to prepare and make available to the public the

minutes for closed-door meetings attended by members of the Cincinnati City

Council. See Cincinnati Post at ¶ 12. We concluded that Cincinnati’s charter was

“not inconsistent with the Sunshine Law” and that R.C. 121.22 applied. Id. at ¶ 27.

Because we concluded that the meetings violated R.C. 121.22, see id. at ¶ 22-25,

we issued a writ of mandamus ordering Cincinnati to “prepare and make available

to the public minutes” for the meetings, id. at ¶ 29. And more recently, we

specifically stated that “[m]andamus is an appropriate remedy to compel a public

body to prepare and produce full and accurate meeting minutes under R.C. 121.22

and 149.43.” Ames at ¶ 24.

{¶ 45} Because the Brownfield committee is subject to R.C. 121.22(C)’s

requirements, a writ of mandamus is an appropriate remedy to compel respondents

to prepare and produce the minutes for previously held Brownfield committee

meetings attended by a majority of its members at which public business was

discussed. See R.C. 121.22(B)(2) (defining a “meeting” as “any prearranged

discussion of the public business of the public body by a majority of its members”).

F. Relators’ requests for awards of court costs, attorney fees, and statutory

damages

{¶ 46} In their complaint, relators requested awards of court costs, attorney

fees, and statutory damages. However, relators do not include in their merit brief

any arguments in support of their claims for attorney fees or statutory damages. By

not including arguments in support of these claims in their merit brief, relators

forfeited their claims for attorney fees and statutory damages. See State ex rel. Data

Trace Information Servs., L.L.C. v. Cuyahoga Cty. Fiscal Officer, 2012-Ohio-753,

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January Term, 2026

¶ 69. Since relators forfeited these claims, we deny relators’ requests for awards of

attorney fees and statutory damages.

{¶ 47} As for court costs, S.Ct.Prac.R. 18.05(A)(2) sets forth the assessment

of costs at the conclusion of an original action brought in this court. Because

relators are entitled to a writ of mandamus ordering respondents to prepare and

produce the minutes for previously held Brownfield committee meetings at which

a majority of its members discussed public business, they are entitled to an award

of court costs. See S.Ct.Prac.R. 18.05(A)(2)(c); see also R.C. 149.43(C)(3)(a)(i).2

III. CONCLUSION

{¶ 48} We grant relators’ request for a writ of mandamus against

respondents. Respondents are ordered to prepare and produce the requested

minutes for previously held Brownfield committee meetings at which a majority of

its members discussed public business. We award relators court costs but deny

their requests for awards of attorney fees and statutory damages. We deny relators’

“motion for costs of the proceedings” and “motion for rebuttal evidence and/or

motion to strike.” We deny respondents’ motion for a protective order as moot.

Writ granted.

__________________

Phillips & Co., L.P.A., and Gerald W. Phillips, for relators.

Seeley, Savidge, Ebert & Gourash Co., L.P.A., Gary A. Ebert, Daniel F.

Gourash, and Jeffrey S. Moeller, for respondents.

__________________

2. The General Assembly amended R.C. 149.43 in 2024 Sub.H.B. No. 265 with an effective date of

April 9, 2025. This opinion applies the version of the statute enacted in 2024 Sub.S.B. No. 29

(effective Oct. 24, 2024).

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