State ex rel. More Bratenahl v. Bratenahl (Slip Opinion)

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

ex rel. More Bratenahl v. Bratenahl, Slip Opinion No. 2019-Ohio-3233.]

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. 2019-OHIO-3233

THE STATE EX REL. MORE BRATENAHL; MEADE, APPELLANT, v. THE VILLAGE

OF BRATENAHL ET AL., APPELLEES.

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

may be cited as State ex rel. More Bratenahl v. Bratenahl, Slip Opinion No.

2019-Ohio-3233.]

Civil law—Application of R.C. 121.22, Ohio’s Open Meetings Act—The Open

Meetings Act does not permit a governmental body to take official action by

secret ballot—Maintaining secret-ballot slips as public records does not

cure an R.C. 121.22 violation—Court of appeals’ judgment reversed and

cause remanded.

(No. 2018-0440—Submitted March 26, 2019—Decided August 14, 2019.)

APPEAL from the Court of Appeals for Cuyahoga County, No. 105281,

2018-Ohio-497.

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SUPREME COURT OF OHIO

DEWINE, J.

{¶ 1} Ohio’s Open Meetings Act commands, “All meetings of any public

body are declared to be public meetings open to the public at all times.” R.C.

121.22(C). The question before us is whether a village council complies with this

directive when it elects a council officer by way of a secret ballot. We say no.

I. A secret ballot to elect a president pro tempore of council

{¶ 2} In January 2015, the Bratenahl Village Council gathered for its first

meeting of the year. Among the council’s business that day was the election of a

president pro tempore—someone to serve as the acting mayor when the mayor is

absent or unable to perform his or her duties. See R.C. 731.10. After two members

were nominated for the position, the following exchange was had:

MAYOR LICASTRO: Do you want to do a show of hands? Do

you want to do a secret ballot?

COUNCILMEMBER BECKENBACH: Let’s do secret ballot.

We’ve always done that.

MAYOR LICASTRO: Secret Ballot. Mr. Matty?

COUNCILMEMBER BACCI: Is that legal?

SOLICITOR MATTY: Yes, it is legal.

***

COUNCILMEMBER BACCI: I thought I saw something in the

Sunshine Law of the [Ohio Revised Code] that you can’t have a

secret ballot.

{¶ 3} No one replied to Councilmember Bacci’s comment, and the council

proceeded to vote by secret ballot. The village solicitor privately tallied the votes.

Without revealing the results, he announced that the council would have to vote

again because someone had voted for a person who had not been nominated. The

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second vote was a tie, so the council voted by secret ballot a third time. Again, the

village solicitor counted the votes and, without announcing the votes, declared

Councilmember Jim Puffenberger the new president pro tempore.

{¶ 4} A year later, the community-news publication MORE Bratenahl and

Patricia Meade, the operator of MORE Bratenahl, filed suit against the village of

Bratenahl, five of the village’s councilmembers, and its mayor (collectively,

“Bratenahl”). MORE Bratenahl and Meade sought a declaratory judgment that

Bratenahl had violated Ohio’s Open Meetings Act, R.C. 121.22, by conducting

public business by secret ballot, an injunction to prohibit future secret-ballot voting,

reasonable attorney fees, and a civil forfeiture of $500.

{¶ 5} During discovery, Meade sought copies of the ballots. Bratenahl

produced the ballot slips with sticky notes attached to them, purporting to identify

the councilmember who cast each vote. Both sides filed motions for summary

judgment. The trial court denied Meade’s motion for summary judgment and

awarded summary judgment to Bratenahl.

{¶ 6} On appeal, the Eighth District found that Meade was unable to

establish that Bratenahl had violated the Open Meetings Act. It noted that, because

the votes were cast in open session and were maintained as a public record, the

votes were not “secret.” 2018-Ohio-497, ¶ 20. Thus, there was “no evidence that

Bratenahl attempted to conceal information from the public.” Id.

{¶ 7} We accepted Meade’s appeal on the question whether members of a

public body violate the Open Meetings Act when they vote on matters of public

business through the use of secret ballots. See 152 Ohio St.3d 1489, 2018-Ohio-

2155, 99 N.E.3d 426.

II. The Open Meetings Act does not permit a governmental body to take

official action by secret ballot

{¶ 8} The Open Meetings Act begins with a pronouncement: “This section

shall be liberally construed to require public officials to take official action and to

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conduct all deliberations upon official business only in open meetings unless the

subject matter is specifically excepted by law.” R.C. 121.22(A). It directs that

“[a]ll meetings of any public body are declared to be public meetings open to the

public at all times.” R.C. 121.22(C). And it further provides, “A resolution, rule,

or formal action of any kind is invalid unless adopted in an open meeting of the

public body.” R.C. 121.22(H). (The act includes several exceptions to its

requirements, none of which are applicable here.)

{¶ 9} Bratenahl does not dispute that its council is a public body, that the

election of a president pro tempore was an “official action” on “public business,”

or that the council’s January gathering was a meeting. (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).) The only question is whether the council

acted in a meeting that was “open to the public” when it selected its president pro

tempore by secret ballot.

{¶ 10} Taking a point from the introductory language of the act, Meade says

that we must construe the act in favor of openness. To allow a secret ballot, she

says, is inconsistent with the act’s legislative purpose of allowing the public to

ascertain the workings of their government.

{¶ 11} Bratenahl pushes back on such a reading. It says that the act does

not prescribe a voting procedure, pointing to a municipal corporation’s statutory

authority “to determine its own rules.” R.C. 731.45. In essence, Bratenahl contends

that the act is satisfied as long as the doors to the meeting space are unlocked and

the public is permitted to sit in the same room as the council.

{¶ 12} We begin our analysis with the text of the act, focusing on the

ordinary meaning of its terms and its structure. Because the act does not define

“open” or “open meeting,” we afford the terms their plain, everyday meanings,

looking to how such words are ordinarily used. Great Lakes Bar Control, Inc. v.

Testa, 156 Ohio St.3d 199, 2018-Ohio-5207, 124 N.E.3d 803, ¶ 8-10. This work

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January Term, 2019

includes reading words in their context and construing them “according to the rules

of grammar and common usage.” R.C. 1.42; see also Great Lakes at ¶ 9.

{¶ 13} “Open” is a word with a variety of usages. It is defined as

“completely free from concealment ˸ exposed to general or particular perception or

knowledge,” Webster’s Third New International Dictionary 1579 (1966)—a

definition that supports Meade’s interpretation. But it can also mean more narrowly

“free to be entered, visited, or used,” Webster’s New International Dictionary 1705

(1953), and “in a state which permits access, entrance, or exit,” Webster’s New

World Dictionary 948 (3d College Ed.1988)—definitions more in line with

Bratenahl’s reading of the act.

{¶ 14} When we consider the full text of the act, its structure, and the

legislative purpose as derived from the text of the act, we think it clear that the

broader reading must carry the day. Significantly, the act does not just say that all

meetings shall be open to the public. It also provides that “[a] resolution, rule, or

formal action of any kind is invalid unless adopted in an open meeting of the public

body.” R.C. 121.22(H). Thus, the act ties the openness requirement to official

action taken at the meeting. Not only must the meeting be open, but any official

action (for example, the election of a president pro tempore) must take place in an

open meeting. We read this to mean that that portion of the meeting in which the

formal action is taken—here, the vote—must be open.

{¶ 15} Further, when the text of a statute makes its purpose clear, and we

must choose between two permissible readings of the statutory text, an

interpretation that advances the purpose of the statute is to be preferred over one

that would thwart that purpose. See Griffin v. Oceanic Contrs., Inc., 458 U.S. 564,

571, 102 S.Ct. 3245, 73 L.Ed.2d 973 (1982); see also Scalia & Garner, Reading

Law: The Interpretation of Legal Texts 56-57 (2012). The text of the act makes

clear its purpose: to require that public business be conducted in a manner that is

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accessible to the public. Meade’s reading advances that purpose; Bratenahl’s

reading does not.

{¶ 16} Bratenahl’s reliance on the fact that the Open Meetings Act does not

prescribe particular voting procedures does little to advance its cause. Just as the

act does not prescribe a particular voting procedure, it does not prescribe how

members are to communicate in such a meeting. But certainly, a meeting is not

open if the members communicate in whispers, concealing their deliberations from

the public. See Manogg v. Stickle, 5th Dist. Licking No. 97 CA 104, 1998 Ohio

App. LEXIS 1961, *2, 4 (Apr. 8, 1998). Nor do we think it would be open if the

members spoke only in Latin, or placed a screen between themselves and the

audience, or took any of numerous other actions that would limit the public’s ability

to access their deliberations. The act may not prescribe any particular voting

procedure—and a council may adopt its own rules—but none of this alters the

fundamental requirement that the public have meaningful access to what takes place

at the meeting.

{¶ 17} The reading that Bratenahl proposes—that a meeting is open as long

as the doors of the meeting room are open to the public—is inconsistent with our

precedent. In State ex rel. Cincinnati Post v. Cincinnati, we held that the act was

violated when the city manager set up a series of back-to-back meetings (each

attended by three of the city’s councilmembers) to discuss public business prior to

the regular session of the nine-member council. 76 Ohio St.3d 540, 542-543, 668

N.E.2d 903 (1996). In doing so, we looked to the legislative dictate that the statute

be liberally construed and concluded that “Cincinnati’s game of legislative musical

chairs,” id. at 544, was inconsistent with the statutory requirement that

governmental bodies “conduct all deliberations upon official business only in open

meetings.” R.C. 121.22(A).

{¶ 18} Similarly, we have held that the act prohibited a majority of a school

board from engaging in a private, prearranged discussion of public business by e-

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mail that was later ratified by the board at a public meeting. White v. King, 147

Ohio St.3d 74, 2016-Ohio-2770, 60 N.E.3d 1234, ¶ 15, 24-25.

{¶ 19} Implicit in the Cincinnati Post and White decisions is a rejection of

the view that Bratenahl advances. The act is not satisfied simply because the doors

of a council meeting are open to the public. Rather, an open meeting requires that

the public have meaningful access to the deliberations that take place among

members of the public body, and that includes being able to determine how

participants vote.

{¶ 20} Thus, we hold that the Open Meetings Act precludes a public body

from taking official action by way of a secret ballot. Bratenahl violated the act

when it elected its president pro tempore by secret ballot.

III. Maintaining secret-ballot slips as public records does not cure a R.C.

121.22 violation

{¶ 21} Bratenahl also argues that since the secret-ballot slips were

maintained as public records, they were not actually secret. The court of appeals

reached this same conclusion, finding that since the votes were cast in open session

and later made public record, they were not “secret.” 2018-Ohio-497, at ¶ 20. But

the availability of concealed information through a public-records request does not

retroactively make a meeting with secret votes “open to the public.” Besides the

practical problems attending Bratenahl’s position—illustrated by the sticky notes

haphazardly appended to the ballot slips, supposedly identifying the voters more

than a year after they had cast their votes—it lacks any support in the text of R.C.

121.22. The statute’s plain language requires that public meetings remain open

throughout the proceedings themselves—the prospect of future access does not

make a meeting “open to the public at all times.” (Emphasis added.) R.C.

121.22(C). The statutory burden to maintain a meeting’s openness is on the public

officials, not the public. R.C. 121.22(A) and (C). Likewise, the consequence for

failing to adopt a formal action in an open meeting—invalidation of that action—

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falls on the public body. R.C. 121.22(H). Thus, the availability of secret-ballot

slips as a public record does not retroactively make a meeting compliant with the

act.

IV. The matter is not moot

{¶ 22} Bratenahl argues that since the president pro tempore’s term has

expired, the issue is moot. But again, the statute’s plain terms refute this argument.

R.C. 121.22(I)(1) provides:

Any person may bring an action to enforce this section. An

action under division (I)(1) of this section shall be brought within

two years after the date of the alleged violation or threatened

violation. Upon 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 with its provisions.

{¶ 23} Thus, the act specifically allows a party to bring an action within two

years of a violation—as Meade did. And when a violation or threatened violation

is proven, it mandates the issuance of an injunction. Because the act, by its terms,

anticipates exactly the type of action Meade pursued, we have little difficulty

concluding that the matter is not moot.

V. Conclusion

{¶ 24} We hold that the use of secret ballots in a public meeting violates the

Open Meetings Act. Accordingly, we remand this matter to the court of common

pleas to issue an injunction under R.C. 121.22(I)(1), order the village council to pay

a civil forfeiture under R.C. 121.22(I)(2)(a), and award any other relief consistent

with R.C. 121.22.

Judgment reversed

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and cause remanded.

O’CONNOR, C.J., and KENNEDY, FRENCH, FISCHER, DONNELLY, and

STEWART, JJ., concur.

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Finney Law Firm, L.L.C., Brian C. Shrive, Christopher P. Finney, and

Justin C. Walker; and the Law Firm of Curt C. Hartman and Curt C. Hartman, for

appellant.

Matty, Henrikson & Greve, L.L.C., David J. Matty, Shana A. Samson, and

Mark B. Marong, for appellees.

Frost Brown Todd, L.L.C., Ryan W. Goellner, and Monica L. Dias, urging

reversal for amici curiae Ohio Coalition for Open Government, Reporters

Committee for Freedom of the Press, and Ohio Association of Broadcasters.

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