The State Ex Rel. Bates v. Smith

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

ex rel. Bates v. Smith, Slip Opinion No. 2016-Ohio-5449.]

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. 2016-OHIO-5449

THE STATE EX REL. BATES v. SMITH.

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

may be cited as State ex rel. Bates v. Smith, Slip Opinion No.

2016-Ohio-5449.]

Quo warranto—Declaration of office of township trustee as vacant and

appointment of respondent to that office violated R.C. 503.241 and Open

Meetings Act, R.C. 121.22—Writ granted.

(No. 2016-0134—Submitted May 31, 2016—Decided August 23, 2016.)

IN QUO WARRANTO.

_____________________

Per Curiam.

{¶ 1} We issue a peremptory writ of quo warranto to relator, Lucas County

Prosecuting Attorney, Julia R. Bates, removing respondent, D. Hilarion Smith, as

Spencer Township trustee and confirming Shawn Valentine’s right to that office.

Two trustees unlawfully voted to declare the third trustee office vacant, even though

the third trustee was on active military service. The trustees unlawfully appointed

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Smith to that trustee position in a meeting that violated the Open Meetings Act,

R.C. 121.22.

Facts

{¶ 2} In November 2013, Shawn Valentine was elected trustee of Spencer

Township in Lucas County, with a term beginning January 1, 2014, and ending

December 31, 2017. Valentine also serves in the Ohio Army National Guard, and

in the spring of 2015, he was notified that he would be deployed for active military

service.

{¶ 3} In June 2015, Valentine gave verbal notice of his upcoming

deployment to the other township trustees, who at that time were Michael Hood

and Smith. He told the other trustees that he did not intend to resign his position as

trustee, but to maintain it as provided in R.C. 503.241. Valentine also attended a

board meeting in September 3, 2015, four days before his deployment to Fort Bliss,

Texas. During that meeting, Hood acknowledged Valentine’s military deployment

and requested prayers from the township residents for Valentine’s safety.

{¶ 4} On the roll call for the September 17, 2015 board meeting, Valentine

was listed as “absent.” At the next five board meetings, which occurred on October

1, November 5, November 19, December 16, and December 30, 2015, Valentine

was listed on the roll call as on “military leave.”

{¶ 5} At the November 2015 election for township trustee, Teresa M.

Bettinger defeated Smith, so his term was scheduled to end December 31, 2015. At

the December 30 meeting of the township trustees, Hood presented a petition from

residents requesting Valentine’s resignation “for lack of performance and lack of

providing information about [his] absence to the [c]ommunity.” Smith read three

resolutions that he said he intended to present to the prosecuting attorney: one

seeking Valentine’s resignation, one seeking the suspension of further per diem

payments to Valentine pending an opinion from the prosecutor on the issue of

“double dipping,” and one seeking official information from the United States

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January Term, 2016

Armed Forces regarding the length and location of Valentine’s deployment. The

meeting adjourned at 11:15 a.m., without any announcement of either an

emergency or an emergency meeting. Later that day, the board posted a paper

notice on the township-hall door of an “emergency meeting” of the board to be held

on December 31, 2015, at 11:00 a.m.

{¶ 6} At the December 31 meeting, Smith and Hood voted to declare

Valentine’s office vacant under R.C. 503.241. Because Valentine had never

verified his deployment with documentation, Smith and Hood concluded that

Valentine had been absent from the township for more than the 90 days permitted

by the statute for nonmilitary absences. Hood and Smith then appointed Smith to

take Valentine’s trustee position on January 1, 2016. Smith asked the fiscal officer

to tell Valentine to surrender all township equipment, including keys.

{¶ 7} Valentine has never renounced his claim to office and has continued

to serve on active duty with the Army. He was, at the time of this complaint in quo

warranto, stationed in Guantanamo Bay, Cuba.

{¶ 8} Bates filed this complaint on two bases: (1) that Smith’s claim to the

title of Spencer Township trustee violates R.C. 503.241, which prohibits the

involuntary removal of a township trustee for absenteeism while the trustee is in

active military service, and (2) that Smith’s appointment as trustee was invalid

because the December 31 meeting at which the appointment took place violated the

24-hour public-meeting notice requirement of R.C. 121.22(F). Bates requests a

writ declaring that Smith be barred from exercising the powers of the office of

township trustee and from receiving any compensation for that office, and that

Valentine is the rightful holder of that position. She also requests that the court

award her the costs of this action, as authorized by R.C. 2733.14.

{¶ 9} Although Smith was served with the summons and complaint on

January 30, 2016, he failed to file an answer or other response.

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Analysis

{¶ 10} Quo warranto is the exclusive remedy to litigate the right of a person

to hold a public office. State ex rel. Ebbing v. Ricketts, 133 Ohio St.3d 339, 2012-

Ohio-4699, 978 N.E.2d 188, ¶ 8, citing State ex rel. Johnson v. Richardson, 131

Ohio St.3d 120, 2012-Ohio-57, 961 N.E.2d 187, ¶ 15. Moreover, “ ‘[t]o be entitled

to the writ of quo warranto, the relator must establish that the office is being

unlawfully held and exercised by [the] respondent and that [the] relator is entitled

to the office.’ ” Id., quoting State ex rel. Zeigler v. Zumbar, 129 Ohio St.3d 240,

2011-Ohio-2939, 951 N.E.2d 405, ¶ 23.

{¶ 11} A petition for a writ of quo warranto may also be brought by the

attorney general or a prosecuting attorney. R.C. 2733.05. As Lucas County

prosecuting attorney, Bates has standing to bring this action in quo warranto.

“Judgment may be rendered on the right of the defendant, and also on the right of

the person averred to be so entitled, or only upon the right of the defendant, as

justice requires.” R.C. 2733.08.

{¶ 12} For two reasons, we agree that Smith is unlawfully holding the office

of township trustee and that Valentine is entitled to that office. First, the position

of Spencer Township trustee was not vacant. R.C. 503.241 provides that when a

township officer is absent from the township for 90 days, the office is deemed

vacant. However, the statute explicitly excepts active military duty from that

provision:

Whenever any township officer * * * is absent from the

township for ninety consecutive days, * * * his office shall be

deemed vacant and the board of township trustees shall declare a

vacancy to exist in such office.

***

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January Term, 2016

This section shall not apply to a township officer while in the

active military service of the United States.

(Emphasis added.) Id. This section does not require notice to the township by the

active military service member. Nevertheless, the board minutes show that the

township trustees knew that Valentine was absent due to active military service.

Regardless of notice, under R.C. 503.241, Valentine’s office was unlawfully

deemed vacant. Smith has usurped the title and authority of that office.

{¶ 13} Second, the declaration of vacancy and the appointment of Smith are

without legal effect because they were made at a meeting held in violation of Ohio’s

Open Meetings Act, R.C. 121.22. The statute states:

(F) Every public body, by rule, shall establish a reasonable

method whereby any person may determine the time and place of all

regularly scheduled meetings and the time, place, and purpose of all

special meetings. A public body shall not hold a special meeting

unless it gives at least twenty-four hours’ advance notice to the news

media that have requested notification, except in the event of an

emergency requiring immediate official action. In the event of an

emergency, the member or members calling the meeting shall notify

the news media that have requested notification immediately of the

time, place, and purpose of the meeting.

(Emphasis added.) R.C. 121.22(F). Smith and Hood held the December 31

meeting after giving less than 24 hours’ notice by placing a paper notice of an

“emergency meeting” on the township-hall door.

{¶ 14} The phrase “immediate official action” is not defined in the statute,

and public bodies have considerable discretion to determine what constitutes an

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emergency. See, e.g., Wolf v. E. Liverpool School Dist. Bd. of Edn., 7th Dist.

Columbiana No. 03 CO 5, 2004-Ohio-2479, ¶ 39-46. “A common dictionary

definition of ‘emergency’ is, ‘an unexpected situation or sudden occurrence of a

serious and urgent nature that demands immediate attention.’ ” Id. at ¶ 40, quoting

American Heritage Dictionary 448 (2d College Ed.1922). However, a public body

cannot “call[] an emergency session as a pretext for avoiding public scrutiny of

their actions.” Id. at ¶ 46.

{¶ 15} In this case, the December 30, 2015 trustees’ meeting ended at 11:15

a.m., with no suggestion in the minutes of any emergency, let alone one that would

compel another meeting in less than 24 hours.

{¶ 16} R.C. 121.22(H) prescribes invalidation of any action taken at a

meeting that does not comply with the Open Meetings Act: “A resolution, rule, or

formal action adopted in an open meeting is invalid if the public body that adopted

the resolution, rule, or formal action violated division (F) of this section.”

{¶ 17} The actions taken at the December 31 meeting, including the

declaration of a vacancy on the board and the appointment of Smith, are invalid

acts because the meeting did not comply with the Open Meetings Act.

Conclusion

{¶ 18} Under the plain language of R.C. 503.241, Valentine’s office of

township trustee should not have been declared vacant, and Smith has usurped the

title and authority of that office. In addition, the board of township trustees violated

the Open Meetings Act when it held an invalid “emergency” meeting on December

31, 2015.

{¶ 19} We therefore issue a peremptory writ of quo warranto declaring that

Smith is barred from exercising the powers and office of Spencer Township trustee

and from receiving compensation for that office and that any actions he has taken

as trustee since January 1, 2016, are invalid. Shawn Valentine is the rightful holder

of the position of Spencer Township trustee, and he is therefore entitled to exercise

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the powers of that office and to receive compensation in compliance with laws

addressing townships in R.C. Chapter 503.

{¶ 20} Costs are taxed to respondent.

Writ granted.

O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY,

FRENCH, and O’NEILL, JJ., concur.

_________________

Julia R. Bates, Lucas County Prosecuting Attorney, and Evy M. Jarrett and

Elaine B. Szuch, Assistant Prosecuting Attorneys, for relator.

_________________

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