IN THE SUPREME COURT OF OHIO

STATE OF OHIO EX REL. : On Appeal from the Court of

MORE BRATENAHL, ET AL., : Appeals for Cuyahoga County,
: Eighth Appellate District
Relator-Appellant, :
: Court of Appeals Case No. 105281
v. :
: Supreme Court Case No. 2018-
VILLAGE OF BRATENAHL, : 0440
OHIO, ET AL., :
:
Defendants-Appellees. :

______________________________________________________________________________

MEMORANDUM OF AMICUS CURIAE

OHIO COALITION FOR OPEN GOVERNMENT
IN SUPPORT OF JURISDICTION
______________________________________________________________________________

Monica L. Dias (0073617) Christopher P. Finney (0038998) David J. Matty (012335)

(Counsel of Record)
Ryan W. Goellner (0093631)
FROST BROWN TODD LLC
3300 Great American Tower
301 East Fourth Street
Cincinnati, Ohio 45202
Telephone: (513) 651-6800
Facsimile: (513) 651-6981
mdias@fbtlaw.com
rgoellner@fbtlaw.com
Counsel for Amicus Curiae
Ohio Coalition for Open
Government
Brian C. Shrive (0088980)
FINNEY LAW FIRM, LLC
4270 Ivy Pointe Blvd., Suite 225
Cincinnati, Ohio 45245
Telephone: (513) 943-6655
Facsimile: (513) 943-6669
chris@finneylawfirm.com
brian@finneylawfirm.com
Counsel for Relator-Appellant
State of Ohio ex rel. Patricia
Meade
Shana A. Samson (0072871)
Mark B. Marong (0082865)
Matty, Henrickson & Greve
55 Public Square, Suite 1775
Cleveland, Ohio 44113
Telephone: (216) 621-6570
Facsimile: (216) 621-1127
dmatty@mhglegal.com
ssamson@mhglegal.com
mmarong@mhglegal.com
Counsel for Defendants-
Appellees Village of
Bratenahl, et al.
 TABLE OF CONTENTS

TABLE OF CONTENTS .............................................................................................................ii

MEMORANDUM IN SUPPORT OF JURISDICTION ............................................................1

A. The Ability Of Ohio Governments To Vote In Secret And Not

Document Their Meetings Is Of Great Public Or General
Interest. ...............................................................................................................................1

B. Statement Of Interest Of Amicus Curiae Ohio Coalition For

Open Government. .............................................................................................................3

C. Statement of the Case and Facts. ......................................................................................4

D. Propositions of Law and Argument. ................................................................................4

Proposition of Law No. 1: The Eighth District erred to the

detriment of free and open government and the Ohio public in
accepting Appellees’ belated and incomplete corrections to their
violations of the Open Meetings Act’s mandate of public meetings. ..................................4

Proposition of Law No. 2: The Eighth District erred to the

detriment of free and open government and the Ohio public in
creating an exception to the Open Meetings Act whereby a
separate public body may later rectify another public body’s failure
to maintain complete meeting minutes. .............................................................................10

E. Conclusion ........................................................................................................................14

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 MEMORANDUM IN SUPPORT OF JURISDICTION

A. The Ability Of Ohio Governments To Vote In Secret And Not Document Their
Meetings Is Of Great Public Or General Interest.

“Democracies die behind closed doors.” Detroit Free Press v. Ashcroft, 303 F.3d 681,

683 (6th Cir. 2002). That warning applies to this case with particular acuity. If permitted to

stand, the decision below will allow local governments to effectively operate in secret, impairing

the public’s ability to hold their representatives accountable. Public knowledge of government

operations is vital to the legitimacy of local governments in Ohio. Public local government is

also mandated by Ohio law, which affords “crucial rights” to Ohioans to know how their

government operates. State ex rel. Long v. Council of the Village of Cardington, 92 Ohio St.3d

54, 60-61, 748 N.E.2d 58 (2001). The Eighth District’s decision undermining these basic

principles is of critical public interest, should be reviewed by this Court, and should be reversed.

Appellant Patricia Meade (“Meade”) sought to remedy Appellees’ (collectively,

“Bratenahl”) violations of the Open Meetings Act, R.C. 121.22 (“OMA”). In response, the

Eighth District created exceptions to the OMA. First, the decision below allows a public body to

plainly violate the law and vote by secret ballot, so long as the public body later undertakes some

effort to publicize its secret vote, even if those efforts are incomplete and take place during

litigation over the alleged OMA violations. Second, the Eighth District’s decision permits a

public body to evade application of the OMA’s requirement to maintain prompt and complete

minutes, as long as a separate public body later attempts to supplement those minutes. Taken to

its logical conclusion, the Eighth District’s decision, by allowing inadequate meeting minutes of

one public body to be supplemented later by a separate public body, will permit local

governments to revise or reconstruct public records at will. This undermines the OMA’s purpose

to ensure transparent local governments and should be reversed.

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 With regard to secret ballots, the decision below restricts the public’s right to know how

government representatives vote in real time. A public meeting is not “public” in any sense of

the word unless the electorate knows immediately how each member of the government entity

holding the meeting voted on any issue presented. See White v. Clinton Cty Bd. of Commrs., 76

Ohio St.3d 416, 419, 667 N.E.2d 1223 (1996) (“[P]ublic scrutiny is necessary to enable the

ordinary citizen to evaluate the workings of his or her government and to hold government

accountable.”). Elected government officials, like Bratenahl’s village council (“Council”), are

held accountable through the ballot box. But voters can hold their elected officials accountable

only if they know how those officials perform their duties. Given that elected members of

bodies like the Council perform their duties principally by voting, Ohioans must be able to track

these votes contemporaneously and in public. The decision below undermines these fundamental

principles of democracy.

With regard to meeting minutes, in addition to undermining this Court’s requirement that

meeting minutes contain sufficient facts to permit the public to understand the rationale behind a

public body’s decision, the Eighth District’s decision will require a citizen to root through the

records of a different public body or await correction of one public body’s minutes by another

public body, which is antithetical to the OMA. Id. at paragraph two of syllabus.

Finally, the Eighth District’s decision conflicts with a 1997 decision from the Fifth

District Court of Appeals and directly contradicts a 2011 Ohio Attorney General Opinion. The

Fifth District held that members of a local public body cannot conduct public proceedings

inaudibly and that doing so violates the OMA because “whispered” proceedings withdraw the

body’s deliberations from the public eye. Manogg v. Stickle, 5th Dist. Licking No. 97 CA 104,

1998 WL 516311 (Apr. 8, 1998), aff’d after remand, 5th Dist. Licking No. 98CA00102, 1999

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WL 173275 (Mar. 15, 1999). Whispered proceedings are no different from the secret votes at

issue here. Then, nearly seven years ago, the Attorney General announced that public bodies

“may not vote in an open meeting by secret ballot.” 2011 Ohio Atty.Gen.Ops. No. 2011-038, *8.

The decision below contradicts Manogg’s holding and the Attorney General’s opinion by

permitting public bodies to vote in secret without running afoul of the OMA. This Court should

accept jurisdiction to clarify that the Attorney General and the Fifth District, not the Eighth, have

correctly interpreted the law.

B. Statement Of Interest Of Amicus Curiae Ohio Coalition For Open Government.

Amicus curiae the Ohio Coalition for Open Government (“OCOG”) is a nonprofit

corporation whose members include Ohio newspapers, broadcasters, and other citizens who

share a common interest in informing the public about, enforcing, and studying the laws of Ohio

that obligate public offices to make their records available for public inspection and copying.

The coalition was formed by the Ohio News Media Foundation. OCOG is operated for

charitable and educational purposes by conducting and supporting activities to benefit those who

seek compliance with public access laws. For 25 years, OCOG has worked to ensure that local

governments in Ohio remain governments of the people, by the people, and for the people.

OCOG offers this amicus curiae brief in support of Appellant Patricia Meade, who seeks

to reverse the Eighth District’s ruling allowing local governments to vote by secret ballot and to

supplement other public bodies’ minutes—after the fact—without any statutory basis. This case

presents important issues regarding open government, interpretation of the OMA’s mandates,

and Ohioans’ fundamental right to know how their local governments operate. As such, OCOG

and its members will be directly affected by the Eighth District’s ruling.

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C. Statement of the Case and Facts.

OCOG incorporates the statement of the case and facts as set forth by Appellant in her

memorandum in support of jurisdiction. (Meade Mem. at 4-5.)

D. Propositions of Law and Argument.

The OMA provides 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). That subsection also states: “The

minutes of a regular or special meeting of any public body shall be promptly prepared, filed, and

maintained and shall be open to public inspection.” A “public body” includes a “council” of a

“township” and any committees or subcommittees thereof. R.C. 121.22(B)(1)(a)-(b). Bratenahl

does not contest that its Council and Council’s Finance Committee are public bodies, or that it

held meetings at the times pertinent to this lawsuit. (First Amend. Compl., ¶¶ 16, 48, 68; Answer,

¶¶ 16, 48, 68.) Thus, the sole issues are: (1) whether the Eighth District improperly allowed

Bratenahl to violate the OMA by voting by secret ballot and (2) whether the Eighth District

improperly allowed Bratenahl to violate the OMA’s mandate that public bodies prepare and

maintain accurate minutes.

Proposition of Law No. 1: The Eighth District erred to the detriment of

free and open government and the Ohio public in accepting Appellees’
belated and incomplete corrections to their violations of the Open
Meetings Act’s mandate of public meetings.

The OMA’s purpose is to assure accountability of elected officials by prohibiting secret

deliberations on public issues. State ex rel. Cincinnati Post v. Cincinnati, 76 Ohio St.3d 540,

544, 668 N.E.2d 903 (1996). The OMA facilitates public understanding of government actions

because, “[i]f the public can understand the rationale behind its government’s decisions, it can

challenge or criticize those decisions as it finds necessary,” a fundamental ingredient to

American democracy. White, 76 Ohio St.3d at 419, 667 N.E.2d 1223. Hence, “the entire

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[OMA] process . . . prevents important decisions from being made behind closed doors.” Id.

The OMA is to “be liberally construed to require public officials to take official action and to

conduct all deliberations upon official business only in open meetings,” unless specifically

exempted. R.C. 121.22(A). Here, Bratenahl satisfied neither the letter nor the spirit of the

OMA, and the Eighth District’s decision to the contrary should be reversed.

Bratenahl’s Council met on January 21, 2015 in part to elect a president pro tempore.

State ex rel. MORE Bratenahl v. Village of Bratenahl, 8th Dist. Cuyahoga No. 105281, 2018-

Ohio-497, ¶ 16. Due to various issues, Council conducted three votes for the position. Id. at ¶¶

16-17. During each vote, members of Council wrote the name of a chosen candidate on slips of

paper—anonymously—and the votes were tallied by the village solicitor. Id. The identity of the

Council voters and their votes—i.e., which candidate each councilmember voted for—was not

disclosed at the time and was produced only during discovery. Id. at ¶ 20, n.4. Even then, the

“ballots” produced do not identify every councilmember’s vote. See Bratenahl’s Motion for

Summary Judgment at Exhibit 1. In fact, the ballots fail to identify one voter during each round

of voting and identify a councilmember as having voted twice in the second round. Id. Thus,

either some councilmembers failed to vote in the second round or Bratenahl made a serious error

in its post hoc reconstruction of the votes. Either way, the public did not know then and still

does not know how all Bratenahl councilmembers voted during the January 15, 2015 meeting.

The Eighth District incorrectly accepted this procedure as compliant with the OMA. 1

Bratenahl admits that it neither announced nor published the tally of the first and third

secret ballots. See First Amend. Compl. ¶¶ 39-40; Answer at ¶¶ 39-40. Further, Bratenahl

admits that it conducted the second vote by secret ballot and merely announced the result as a tie.

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Bratenahl did not invoke R.C. 121.22(G), the OMA’s executive session provision. Regardless,
that permits only limited, private discussion, not voting or official action. R.C. 121.22(H).
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Id. at ¶¶ 34-35. Finally, Bratenahl admits that the election was public business at an otherwise

public meeting. Id. at ¶ 57. This should end the inquiry: Bratenahl held secret, non-public votes

and prevented the public from knowing how every councilmember voted.

However, the Eighth District reasoned that, because the votes were “cast in open session”

(by secret ballot), and because they were “made public record” (only during this litigation

pursuant to discovery requests), therefore “the votes were not ‘secret.’” MORE Bratenahl, 2018-

Ohio-497, at ¶ 20. But Meade’s lawsuit and request for the records do not cure Bratenahl’s

underlying violation of the OMA. The Council voted in secret at the January 15, 2015 meeting,

and the village solicitor interpreted and announced the results with no indication of how each

councilmember voted. Id. at ¶¶ 16-17. Further, Bratenahl’s later production of the slips of paper

used to vote—with the names of most of the voting councilmembers appended via post-it note—

does not retroactively make the secret vote “public.” This defies both logic and the definition of

“open to the public,” as that phrase is used in the OMA and has been interpreted by Ohio courts.

Bratenahl’s supposed later “cure” of its secret ballots, accepted by the Eighth District, is

insufficient to inform citizens about Council’s votes. That is, Bratenahl publicized the ballots

only after being sued, but these public versions of the ballots remain incomplete. The court’s ex

post excusal of Bratenahl’s OMA violations still does not guarantee that the public will receive

access to complete or accurate records of supposedly public votes. The records provided to

Meade fail to identify voting councilmembers and indicate that one member of council voted

twice during the second round. Thus, even as this litigation continues, the citizens of Bratenahl

lack access to the records of allegedly “public” votes by their elected council at “public”

meetings. The defects in Bratenahl’s post hoc approach, endorsed by the Eighth District, proves

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the prophylactic value of citizens knowing how elected representatives vote when they cast those

votes.

The Eighth District’s interpretation of the OMA also places an undue burden on citizens.

The decision below is not based on any willing public disclosure of the secret ballots. Rather, it

effectively requires citizens to sue public bodies to obtain access to something that should have

been done in public in the first place. Under the Eighth District’s scheme, a citizen must: attend

a council meeting, witness a secret vote, make a request for the secret ballots, hope for the public

body’s revelation of at least some information, and then, if the information is still not complete,

file a lawsuit and at best receive a partial, modified record of the allegedly public action. This

negates the OMA’s purpose and forces private citizens to engage in costly litigation to obtain

partial records of votes that should have taken place in public.

Further, as this Court has recognized, “[o]ne of the strengths of American government is

the right of the public to know and understand the actions of their elected representatives. This

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 are reached.” White, 76 Ohio St.3d at 419. Under this

principle, two Ohio authorities have disagreed with the Eighth District’s approach and affirmed

Ohioans’ right to know how a public body votes and deliberates in real time.

First, the Fifth District Court of Appeals ruled that a lack of audible votes violates the

OMA. Manogg, 5th Dist. Licking No. 97 CA 104, 1998 WL 516311, at *2. In that case, the

appellate court affirmed that the “failure to make audible votes” meant a meeting was not “open

to the public” because the members of the public body, “by their actions of whispering and

passing documents among themselves, circumvented the intent of R.C. 121.22.” Id. at *2. The

court explained that the meeting “was open to the public,” insofar as the public could sit in the

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same room where the meeting was conducted, but “the meeting was not open to the public”

because “the public could not hear the business being transacted . . . .” Id. at *4. The same is

true in Bratenahl’s case: by writing their ballots on slips of paper and passing them to the village

solicitor, the Council “circumvented the intent of R.C. 121.22” because the vote was only

“public” in the sense that the public could sit in the room while it was taken. It was not truly

public because citizens could not determine how each councilmember voted as they voted. The

Eighth District’s opinion fails to distinguish Manogg or craft a counterstatement to its reasoning.

Second, in a 2011 opinion, the Ohio Attorney General determined that the State Board of

Education, a public body under the OMA, “may not vote in an open meeting by secret ballot.”

2011 Ohio Atty.Gen.Ops. No. 2011-038, at *1. The Attorney General so determined because “a

meeting is not ‘open’ to the public where members of a public body vote by way of secret

ballot,” i.e., “a process of voting by slips of paper on which the voter indicates his vote.” Id. at

*4. The Eighth District acknowledged this opinion but held that Bratenahl’s votes were not

“secret” because they were written during an open session and without evidence that Bratenahl

“attempted to conceal information from the public.” MORE Bratenahl, 2018-Ohio-497, at ¶ 20.

Thus, the court created an “intent” requirement found nowhere in the OMA.

Bratenahl voted by “secret ballot,” just as the Attorney General defined the term. The

Attorney General’s opinion plainly states that a vote by secret ballot in “open session” does not

cure the ballot’s violation of the OMA. The Eighth District read into the OMA and Attorney

General’s opinion a non-existent intent requirement, hinging its excusal of Bratenahl’s actions on

the Council’s lack of “attempt to conceal” information from the public. Id. at ¶ 20. This is

factually wrong because Bratenahl did conceal which councilmembers voted for which candidate

during the meeting. Further, the OMA does not direct local governments to “attempt” to hold

8
public meetings or fault them for an “intent” to conceal information. Rather, the OMA mandates

that all meetings of a public body must be open to the public, unless exempted under a narrow

class of exceptions. R.C. 121.22(A), (C); see also State ex rel. Randles v. Hill, 66 Ohio St.3d 32,

35, 607 N.E.2d 458 (1993) (holding that there are “only two defenses to claims of

noncompliance” with the OMA: (1) that an action was excepted from the open-meetings

requirement, or (2) that public access was provided). As the Attorney General has determined,

writing on slips of paper in open session—just as Bratenahl did—does not meet the OMA’s

public meeting requirement.

These issues with Bratenahl’s votes and the Eighth District’s decision demonstrate that,

“[w]hen government begins closing doors, it selectively controls information rightfully

belonging to the people. Selective information is misinformation.” Detroit Free Press, 303 F.3d

at 683. Bratenahl’s desire to control the flow of information from village council votes

constitutes misinformation in this case because the record of votes provided to Meade remains

incomplete and inaccurate—and she and the public had a well-established right under the OMA

to know how council members voted at the time they voted.

Moreover, appending councilmembers’ names to the slips of paper on which they

voted—after the fact and during litigation—has no guarantee of trustworthiness. Bratenahl asks

Meade, other citizens, and this Court simply to trust what it did with the ballots after the meeting

and during discovery. As the United States Supreme Court has noted, this country’s Founders

“did not trust any government to separate the true from the false for us.” Kleindienst v. Mandel,

408 U.S. 753, 773, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972) (quoting Thomas v. Collins, 323 U.S.

516, 545, 65 S.Ct. 315, 89 L.Ed. 430 (Jackson, J., concurring)). Thus, Bratenahl should not be

9
permitted to rest on its own assurances that it has properly informed the public about each

councilmember’s vote.

The Eighth District’s decision sets a dangerous precedent. If not reviewed and reversed,

the Eighth District’s decision will permit local governments to vote by secret ballot on any

matter, as long as they later produce some evidence of the vote in litigation. Moreover, the

public, when confronted by a local body voting by secret ballot, will be required to sue to learn

how each elected official voted. In this way, the Eighth District’s ruling misinterprets the OMA

and effectively closes meetings to the public.

Proposition of Law No. 2: The Eighth District erred to the detriment of

free and open government and the Ohio public in creating an exception to
the Open Meetings Act whereby a separate public body may later rectify
another public body’s failure to maintain complete meeting minutes.

“[F]ull 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.”

White, 76 Ohio St.3d 416, 667 N.E.2d 1223, paragraph two of the syllabus. Citizens have a right

to know how their government operates, thus enabling them to challenge and criticize the

government. Id. at 420. Further, committee meetings are meetings under the OMA, and

Bratenahl does not dispute that the Finance Committee must abide by R.C. 121.22(C)’s minutes

requirement. Long, 92 Ohio St.3d at 58, 748 N.E.2d 58.

Bratenahl’s Finance Committee violated the OMA on several occasions, all of which the

Eighth District improperly excused. MORE Bratenahl, 2018-Ohio-497, ¶ 25. For example, the

minutes for the Finance Committee from January 19, 2016 relating to “Item 2: Ord. 3855 – Pay

Claims” state only that “no changes” were made to the Ordinance and that a motion and vote

recommended passage of the ordinance to the full Council. First Amend. Compl. at Exh. D.

Then, when reporting to the full Council on January 20 about the Finance Committee’s January

10
19 meeting, the chair of the committee summarized the discussion of the “pay claims ordinance”

from January 19 as: “[R]ecommended by the committee to be passed along to Council for

approval this evening.” Bratenahl’s Motion for Summary Judgment at Exhibit 2, transcript page

17:1-6. This report to Council on January 20 about the Finance Committee’s meeting on January

19 repeated nearly verbatim the “minutes” regarding the ordinance and provided no

information—let alone supplemental information—about the ordinance. Yet during its January

19 meeting, the Finance Committee discussed the basis of the claims being paid for nearly ten

minutes. See Relators’ Motion for Summary Judgment, Attachment to Affidavit of Patricia

Meade. One would expect to see some record of that ten minutes of discussion in the Finance

Committee’s minutes, but neither the minutes nor the committee’s “report” to Council elaborated

on this ten-minute discussion. White, 76 Ohio St.3d at 420, 667 N.E.2d 1223 (“[T]he

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.”). Thus, these later

transcripts—supplemental “minutes” in the Eighth District’s view—do not augment the Finance

Committee’s original deficient minutes.

Perhaps the most disturbing aspect of the Eighth District’s decision concerning meeting

minutes is its judicially crafted exception to the OMA. The Eighth District did not hold that the

Finance Committee’s minutes were sufficient under the OMA. Rather, the court reasoned that,

because the matters addressed by the Finance Committee were subject to minimal discussion

before the entire Council, the transcript of Council’s later meeting supplemented the minutes of

the Finance Committee. MORE Bratenahl, 2018-Ohio-497, at ¶ 25. This novel exception to the

OMA—whereby a public body’s transcript can supplement another public body’s minutes—does

not appear in the statute and has not been recognized by this Court. Further, this judicially

11
created exception to the OMA impinges on the legislature’s function. Cablevision of the

Midwest, Inc. v. Gross, 70 Ohio St.3d 541, 544, 639 N.E.2d 1154 (1994) (“A court’s role is to

interpret, not legislate.”).

Even assuming a public body could later correct or supplement a different public body’s

deficient minutes by discussing those minutes during a subsequent meeting, Bratenahl failed to

do so here. The brief recitation of the Finance Committee’s January 19 activities during the full

Council meeting on January 20 does not provide any information beyond that stated in the

Finance Committee’s minutes. Contrary to the Eighth District’s ruling, Council did not

supplement the Finance Committee’s January 19 minutes, and the transcripts from Council do

not provide sufficient detail about the Finance Committee’s meeting to comply with the OMA’s

minutes requirement. White, 76 Ohio St.3d at 424, 667 N.E.2d 1223.

Further, although this Court has allowed narrow exceptions in which a public body may

maintain non-traditional meeting minutes, the transcripts of Council’s meetings do not satisfy the

test for these exceptions. See Long, 92 Ohio St.3d at 57, 748 N.E.2d 58 (holding that audio

recordings may be “minutes” if they are treated as official minutes, used consistently and

maintained as minutes, and provide a full record of proceedings). For example, to use an

alternate form of minutes under Long, the public body must treat that form of minutes as

“official.” Id. But the Finance Committee did not do so here. Bratenahl did not argue—and the

Eighth District did not hold—that the Finance Committee has, as a matter of course, treated the

full Council’s transcripts as the Finance Committee’s minutes. Indeed, to argue this would be

absurd—no public body keeps prompt and accurate meeting minutes by waiting for another

public body to discuss what happened during the first body’s meetings. This contradicts the

plain language of the OMA and defeats the purpose of prompt and accurate minutes.

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 The policy underlying the OMA’s requirement that minutes “be promptly prepared, filed,

and maintained” is compelling. R.C. 121.22(C); see also White, 76 Ohio St.3d at 419, 667

N.E.2d 1223 (noting that prompt and complete minutes enable public scrutiny and criticism). A

contemporaneous record of government activity bears strong indicia of truthfulness. That is, the

record’s temporal proximity to the original source of the information—the government

meeting—allows citizens to trust those records as accurate representations of what the

government said or did, and why. The Eighth District’s decision essentially allows the

government to reconstruct its actions days, weeks, or even months later. In fact, one public body

is now empowered to retell the actions of another. That is, Council can restate what one of its

committees did, regardless of whether its restatements are accurate. Citizens then must simply

trust that Council correctly represented the committee’s activities. The decision below thus

permits local governments to redesign, sanitize, or otherwise manipulate records of their

meetings.

Moreover, “[k]eeping 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.” White at 420. Yet the decision below permits hiding the records

of one public body in the records of another public body. Thus, a citizen unable to attend the

Finance Committee’s meeting would not be able to “obtain complete and accurate information

about the decision-making process of their government” without either (1) attending a full

Council meeting where the pertinent Finance Committee meeting will be discussed or (2)

accessing the transcript of the full Council meeting. As with secret ballots, this defeats the

purpose of the OMA and places an enormous burden on private citizens. As to the former,

citizens must attend the meetings of a second public body to make sure they receive complete

13
information about what another public body did or said. As to the latter, a private citizen must

root through transcripts of another body (Council) to find discussion of the first body’s (Finance

Committee) meeting and determine what that first body did at its meeting. If the second public

body only keeps minutes—not transcripts—the citizen may never find out what the first body

did. These onerous requirements appear nowhere in the OMA and undercut the intent of the law.

White, 76 Ohio St.3d at 420, 667 N.E.2d 1223.

The Eighth District’s decision prevents a citizen who is unable to attend a public body’s

meeting from referencing the minutes of that meeting to determine what happened during it.

Combined with its first erroneous holding authorizing votes by secret ballot, the Eighth District’s

decision permits local governments to hold a secret vote, to record the vote inaccurately or

incompletely, and then to recreate the contents of that vote during the meeting of a separate

public body. This is not just legally wrong, but undermines the OMA and, if permitted to stand,

could do serious damage to the accountability and transparency of governmental bodies across

Ohio.

E. Conclusion

For all the foregoing reasons, the Ohio Coalition for Open Government requests this

Court accept jurisdiction and reverse the ruling below to preserve the statutory integrity of the

OMA and to protect the public’s right to know and understand the bases for the decisions their

governments make.

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 Respectfully submitted,

/s Monica L. Dias

Monica L. Dias (0073617)

Ryan W. Goellner (0093631)
FROST BROWN TODD LLC
3300 Great American Tower
301 East Fourth Street
Cincinnati, Ohio 45202
Phone: (513) 651-6800
Facsimile: (513) 651-6981
mdias@fbtlaw.com
rgoellner@fbtlaw.com

Counsel for Amicus Curiae Ohio Coalition

for Open Government

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 CERTIFICATE OF SERVICE

I certify that a copy of the foregoing was sent by e-mail and ordinary U.S. mail on March

26, 2018 to the counsel listed below:

Christopher P. Finney David J. Matty

Brian C. Shrive Shana A. Samson
FINNEY LAW FIRM, LLC Mark B. Marong
4270 Ivy Pointe Blvd., Suite 225 Matty, Henrickson & Greve
Cincinnati, Ohio 45245 55 Public Square, Suite 1775
chris@finneylawfirm.com Cleveland, Ohio 44113
brian@finneylawfirm.com dmatty@mhglegal.com
ssamson@mhglegal.com
mmarong@mhglegal.com
Counsel for Relator-Appellant
State of Ohio ex rel. Patricia Counsel for Defendants-
Meade Appellees Village of
Bratenahl, et al.

/s Monica L. Dias

0138418.0658811 4842-8071-1264v1

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