Case No.

CA-16-105281

STATE OF OHIO ex rel. PATRICIA MEADE,

Relator-Appellant,

v.

Village of Bratenahl, et al.,

Defendants-Appellees.

APPELLANT’S APPLICATION FOR RECONSIDERATION

Counsel for Appellant : Counsel for Appellees:

Christopher P. Finney (0038998) David J. Matty (012335)

Brian C. Shrive (0088980) Shana A. Samson (0072871)
FINNEY LAW FIRM, LLC Mark B. Marong (0082865)
4270 Ivy Pointe Blvd., Suite 225 Matty, Henrickson & Greve
Cincinnati, Ohio 453245 55 Public Square, Suite 1775
(513) 943-6655 Cleveland, Ohio 44113
chris@finneylawfirm.com (216) 621-6570
brian@finneylawfirm.com dmatty@mhglegal.com
ssamson@mhglegal.com
mmarong@mhglegal.com
 Pursuant to Rule 26(A) of the Ohio Rules of Appellate Procedure, Appellant moves for the

reconsideration of this Court’s opinion and entry of November 9, 2017. “This court, when

reviewing an application for reconsideration, must determine whether the motion calls to the

attention of the court an obvious error in its decision or raises an issue for consideration that was

either not considered at all or not fully considered by the court.” State v. Ramos, 8th Dist.

Cuyahoga No. 103596, 2017-Ohio-7712, ¶ 10.

Reconsideration is appropriate here because the Court’s decision is premised upon legal

and factual issues not raised or briefed by the Parties and that reflect foundational and obvious

factual errors, which, if accurately considered, would result in a different decision. Specifically:

1. The Court deprived Appellant of due process by deciding the case on matters not put at issue
by the pleadings but, instead, issues created by the Court sua sponte and not briefed or
argued, and without giving notice and opportunity to brief the issues.

2. The councilmembers did not mark their names on the written ballots as Exhibit 1 was
produced during discovery with the addition of “post-it notes” containing the names of the
putative voters, but such post-it notes were added after-the-fact and were not on the ballots
at the time of the vote.

3. The Decision is premised upon an incorrect belief that the audio recordings presented into
evidence were public records created and maintained by the Appellees; the audio recordings
were created and maintained by private citizens.

4. The Court incorporated the handwritten ballots and audio recordings into the meeting
minutes, contrary to the admissions of the Appellees that the written minutes constitute the
official meeting minutes.

5. The Court ignored the Ohio Supreme Court’s ruling in State ex rel. Long v. Council of
Cardington, 92 Ohio St. 3d 54, 2001-Ohio-130, and its clarification of White v. Clinton Cty.
Bd. of Commrs., 76 Ohio St.3d 416, 424, 667 N.E.2d 1223 (1996).

6. The Court failed to consider that the Open Meetings Act applies both to the conduct in the
meeting itself as well as the content of the minutes.

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I. The Decision relies on issues raised by the Court sua sponte without providing
Appellant notice or an opportunity to brief the issues.

The Ohio Supreme Court has recognized that, consistent with the mandates of due process

and “[i]n fairness to the parties, [an appellate court] which contemplates a decision upon an issue

not briefed should . . . give the parties notice of its intention and an opportunity to brief the issue.”

C. Miller Chevrolet, Inc. v. City of Willoughby Hills, 38 Ohio St.2d 298, 301 n.3, 313 N.E.2d 400

(1974). And this basic constitutional principle was reiterated by Justice Pfeifer in State ex rel.

Shelly Materials, Inc. v. Clark Cty. Bd. of Commrs., 115 Ohio St.3d 337, 875 N.E.2d 59, 2007-

Ohio-5022:

“[w]hile appellate courts have the power to raise issues sua sponte, they should
cease deciding cases on such issues without giving the parties an opportunity to be
heard through supplemental briefing and argument . . . [because the] failure to do
so is inconsistent with the fundamental principles of due process that a party should
have notice of, and the opportunity to be heard on, the determinative issue in the
case.” The preferable course is to request supplemental briefing on issues that are
not raised by the parties and that are susceptible of reasonable disagreement and are
considered to be potentially dispositive

Id. ¶55 (Pfeifer, J., dissenting). Yet, notwithstanding these basic tenets of due process, in this

appeal, this Court proceeded sua sponte to dispose of issues on bases that neither party raised,

briefed or argued before for the trial court or before this Court. And the reason neither party did

so is because the bases that this Court developed sue sponte is founded upon false factual matters

or assumptions not put at issue by the pleadings or supported by the summary-judgment evidence.

As developed infra, Appellees never contended – before the trial court or this Court – that

the individual members voted by writing their names on the respective ballots when the ballots

were cast, or that the audio recordings were a part of the meeting minutes. Instead, Appellees’

entire argument was that they could determine how to conduct council proceedings, even using

secret ballots, and that the stenographic minutes satisfied the requirements of the Open Meetings

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 Act. Thus, this Court proceeded down a path that neither party raised, addressed or briefed; and

the reason neither party did so was because the factual premise created by the Court is inaccurate.

Further, and as discussed more fully infra, the Court’s determination to incorporate the

audio recordings and paper ballots into the meeting minutes was not raised in the briefs. Likewise,

the Court’s determination that the secret ballot votes were somehow not secret ballot votes is

contrary to the pleadings and again not raised in the briefs. By failing to give notice to the

Appellant that the Court contemplated deciding the case on issues not raised in the briefs,

Appellant was deprived of her due process rights.

II. The Court’s decision is based upon evidence not in the record and that is actually
refuted by the record.

a. Paper Ballots

The foundational basis of the Decision on secret-ballot voting is contained in two

paragraphs of the Decision:

¶15: “The members of the Bratenahl Council proceeded to vote by handwriting their
respective votes and names on a piece of paper…”

¶19: “the ballots were handwritten in open session and included the name of the
nominated individual as well as the name of each councilmember issuing the vote.”

But the factual conclusion that the members of the Bratenahl Council wrote their names on the

paper ballots is absolutely false as a factual matter and is not within the summary judgment record.

Exhibit 1 to the Respondents’ Memorandum in Opposition to Relator’s Motion for

Summary Judgment and Cross-Motion for Summary Judgment contains the handwritten secret

ballots to which post-it notes bearing the names of the putative voters were subsequently added.

The inclusion of the post-notes was done in response to a discovery request during the course of

this case that Appellees identify and associate the secret ballot to the respective councilmember

who cast it. The identification to whom each ballot belonged was not done by the councilmember

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as part of the voting itself, i.e., the councilmembers did not write their names on the secret ballots,

cf. ¶15, but only after the commencement of this action and in response to discovery, were the

names appended via post-it notes. And even the handwriting on the post-it notes is noticeably

different that the writing on the secret ballot itself.

The secret ballots themselves were pieces of paper on which only the councilmembers

indicated only their selection; Exhibit 1 contains photocopies of the ballots provided during

discovery on 8½” x 11” pieces of paper in response to a request to identify who marked each ballot.

And it was this discovery response that included the secret ballots with the separate post-it notes

attached noting member to whom each ballot belonged – again, something done during the course

of discovery but not by the councilmembers as part of their voting.

Furthermore, not all of the ballots produced by the Appellees indicate whose ballot they

were (see, e.g., Bates No. 1122, containing only the handwritten name “Smith” without any

indication of who cast that ballot; see also Bates Nos. 1130 and 1137, containing only the

handwritten name “Murphy” without any indication of who cast those ballots). Additionally, with

respect to the second ballot, there are two ballots ascribed to Jim Puffenberger (Bates Nos. 1127

and 1129). The obvious conclusion is that the names of the putative voters were not written by the

voters themselves at the time of the vote. Thus, the Court relied upon an inaccurate factual matter

when it assumed that the ballots as they were produced in discovery reflect their condition at the

time of the vote. Further, absent specific proof of that fact, by affirming the decision to grant

summary judgment against the Appellant, upon facts not in evidence, the Court failed to construe

all evidence most strongly in the Appellant’s favor, contrary to Rule 56.

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 Further, the evidence upon which this aspect of the Court’s decision is apparently based,

i.e., Exhibit 1, was not proper summary judgment evidence before the trial court and, thus, should

not have even been considered by this Court. The Court completely ignored this issue raised in

Appellant’s Brief at 17, n.3.

b. Reliance upon audio recordings as public records

Additionally, the Decision is premised upon another mistaken factual assumption – that

the audio recordings provided by the Appellant were public records, produced, kept, or maintained

by the Appellees. See Decision, ¶¶ 22-25, 29. In fact, Appellant and other private citizens made

the recordings of the meetings, not the Appellees. Appellees acknowledge this in their brief,

“[h]owever, as evidenced by the audio recording of the August 19, 2015 taken by Relator and

provided to Respondents during discovery . . . ” Appellee’s Corrected Brief, at 14 (emphasis

added). See also, Meade Affidavit, attached to Relator’s Motion for Summary Judgment (making

clear that the recordings were not obtained from the Village, but made by Relator or others). Thus,

any reliance upon the audio recordings being public records that may be used to supplement or be

a part of the meeting minutes is factually incorrect.

The Court’s determination on this point is both factually wrong and legally impermissible.

First, the audio recordings were not created by the Appellees; they were created by the Appellant

and other private citizens. Secondly, as discussed more fully infra, the pleadings establish that that

the stenographic minutes alone are the official minutes of the Village of Bratenahl.

Further, with respect to the executive sessions, by relying on the audio recordings to

demonstrate what occurred at the meeting, the Appellees essentially admitted that the minutes fail

to contain the content of the motion to enter executive session or the roll call vote thereon – a

violation of the Open Meetings Act requirement to prepare, file and maintain full and accurate

minutes. Thus, while the recordings may be used as evidence that the meeting was conducted
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 properly, they cannot be used to satisfy the requirement to created accurate minutes; and in fact

prove a violation of the Open Meetings Act requirement to prepare, file and maintain accurate

minutes.

Thus, absent the incorrect finding that audio recordings are public records which may be

considered to supplement the official minutes, the official minutes are unquestionably inaccurate

and deficient with respect to the executive sessions and meetings of the Finance Committee.

III. The Court’s incorporation of the handwritten ballots and audio recordings into the
minutes violates the law of pleading and Ohio Supreme Court precedent.

“It has been held that according to the law of pleading, an admission in a pleading dispenses

with proof and is equivalent to proof of the fact.” Pope ex rel. Barkley v. Univ. Settlement, Inc.,

8th Dist. Cuyahoga NO. 73946, 1999 Ohio App. LEXIS 1165, at *5 (Mar. 25, 1999) (See also,

Duffy v. Cleveland Coin Machine Exchange, Inc., 138 N.E.2d 307 (8th Dist. 1956), “WE KNOW

IT TO BE ELEMENTARY IN THE LAW OF PLEADING THAT AN ADMISSION IN A

PLEADING DISPENSES WITH PROOF AND IS EQUIVALENT TO PROOF OF THE FACT.”

citing 3 JONES COMMENTARIES ON EVIDENCE (SECOND ED.), SEC. 993).

In the First Amended Complaint, and Answer thereto, the Appellant alleged, and the

Appellees admitted both (i) that the transcribed minutes are the official minutes (See, Paragraphs

21, 22, 82, 91, and 102 of the First Amended Complaint and the corresponding paragraphs in the

Answer thereto); and (ii) that the “secret ballots” complained of were, in fact, secret ballots (See,

Paragraph 29 of the First Amended Complaint and corresponding paragraph in the Answer

thereto).

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 The stenographic minutes attached to the First Amended Complaint (i.e. the official

minutes as admitted by Appellees), further establish that the “secret ballots” were secret ballots

(See, Page 17, line 9 of Exhibit A to the First Amended Complaint: “(Secret ballot vote taken.)”

as well as Page 18, lines 1 and 23.)

Thus, this Court’s sua sponte creation of factual and legal issue by which it decided the

case is contrary to the facts and issues established by the pleadings. See Gerend v. City of Akron,

137 Ohio St. 527, 531, 30 N.E.2d 987 (1940)(“[t]he function of the pleadings in the trial of a cause

is to apprise the court and the parties of the respective grounds of the controversy, furnish the

question to be tried, an determine the nature and scope of the trial”).

Further, in sua sponte incorporating the audio recordings and paper ballots into the official

meeting minutes, the Court cited to White for the proposition that minutes may be kept via audio

recording, but ignored the more recent, controlling precedent of State ex rel. Long v. Council of

Cardington, 92 Ohio St. 3d 54, 2001-Ohio-130, that clarified White. In Long, the Ohio Supreme

Court specifically rejected the argument that audio recordings created and maintained by a public

body automatically satisfy the public body’s “duties to prepare and make available minutes by

audiotaping council meetings and making the audiotapes of the meetings available to the public.”

Long, at 57.

Here the Appellees did not create or maintain the audio recordings at issue, the Appellant

and other privates did, i.e., they are not public records. Indeed, the Appellees did not obtain copies

of the recordings until they were produced in discovery. See Appellees’ Corrected Brief, at 14.

In Long, the Ohio Supreme Court (reviewing actual public records) set forth a three prong

test to determine whether audio recordings created by a public body can be considered the official

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minutes of a public body: (1) did the public body treat the recordings as the official minutes; (2)

did the public body record all of its meetings; and (3) are the recordings audible. Long, at 57.

Starting with the second prong, the recordings were not created or maintained by the public

body, thus there is no evidence in the record that the Appellees recorded any meetings, much less

all of them. As to the first prong, the Appellees did not have copies of the recordings until they

were produced by the Appellant in discovery, and Appellees admitted that the stenographic

minutes are the minutes, thus the first prong fails.

While the tapes may be audible (satisfying the third prong), that the recordings were not

created or maintained by the public body (i.e. are not public records) or treated as minutes is fatal

to any claim that the audio recordings are, or make up any part of, the official minutes (even

without engaging in the Long analysis); particularly in light of the Appellees’ own admissions that

the stenographic minutes are the minutes.

With respect to the paper ballots, there is no evidence that the Appellees treated the paper

ballots as a part of the minutes. The Appellees admitted that the minutes attached as Exhibits to

the First Amended Complaint are the official minutes; and the paper ballots were not a part of the

Exhibits. Additionally, the post-it notes attached (during discovery in this case) to the paper ballots

are unclear in some instances as to who cast which ballot (analogous to inaudible recordings). As

such, the paper ballots were not a part of the minutes.

Thus, for the Court to sua sponte incorporate audio recordings and paper ballots into the

official meeting minutes is contrary to the law of pleading and the controlling precedent of Long.

Further, as noted above, once stripped of their status as “minutes,” the audio recordings in

fact prove the Appellant’s case that Appellees failed to produce accurate minutes and, thus,

reconsideration is clearly warranted.

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IV. The Court’s decision ignores that the Open Meetings Act requires not only full and
accurate minutes but also that those in attendance be able to hear and appreciate
what is being done at the meeting itself.

In addition to the issues addressed above, the Court ignores that the Open Meetings Act

imposes two distinct duties with respect to meetings of a public body and that the Appellant argued

in the alternative that either or both duties were violated.

The Open Meeting Act requires that public bodies “conduct their meetings in the open so

that the public can have access to the business discussed or transacted therein.” Decision, at ¶ 12,

quoting Wyse v. Rupp, 6th Dist. Fulton No. F-94-19, 1995 Ohio App. LEXIS 4008, 11-12 (Sept.

15, 1995).” This has been understood to mean both (i) that the meeting itself must be conducted in

a way that the public can hear what is being communicated, and (ii) that accurate minutes be

produced. A failure to conduct the meeting in a way that allows the public to know what is being

communicated is a violation of the Open Meetings Act. “The appellants, by their actions of

whispering and passing documents among themselves, circumvented the intent of R.C. 121.22. As

a result of their actions, the trustees failed to conduct an ‘open meeting’ in the sense that the

audience could not hear the business being transacted by the trustees.” Manogg v. Stickle, 5th Dist.

Licking Case No. 97 CA 104, 1998 Ohio App. LEXIS 1961, at *6 (Apr. 8, 1998).

Applying Manogg, the council members violated the Open Meetings Act because, when

they voted by written ballot, how each member voted was not communicated to those physically

present at the meeting, regardless of whether or not the Appellees later produced copies of the

handwritten ballots in discovery. Whether the minutes or other public records accurately reflect

the vote is immaterial to this violation. Further, that the official minutes do not indicate how the

individual members voted is itself a second, distinct violation of the Open Meetings Act.

Thus, even with the Court’s sua sponte incorporation of the ballots into the minutes

(whether proper or not), the Court failed to acknowledge or appreciate the fact that the votes
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 conducted by handwritten vote, without communicating at the meeting as to how each

councilmember voted, was itself a violation of the Open Meetings Act, regardless of the production

of the handwritten ballots in discovery.

V. Conclusion.

The Court should reconsider its prior decision because the Court: (i) decided the case on

issues not raised in the briefs without affording the parties an opportunity to brief the issues; (ii)

relied upon facts not in evidence and actually refuted by the evidence; (iii) ignored controlling

precedent and the law of pleadings; and (iv) failed to consider the violation of the Open Meetings

Act that occurred at the meeting in which secret ballots were cast as those in attendance were

unable to discern how each member voted, and in failing to prepare accurate minutes with respect

to executive sessions and finance committee meetings.

Respectfully submitted,

/s/ Christopher P. Finney

Christopher P. Finney (0038998)
Brian C. Shrive (0088980)
FINNEY LAW FIRM, LLC
4270 Ivy Pointe Blvd., Suite 225
Cincinnati, Ohio 453245
(513) 943-6655
chris@finneylawfirm.com
brian@finneylawfirm.com

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 CERTIFICATE OF SERVICE

I certify that a copy of the foregoing will be served via e-Service through the Clerk of
Courts’ the e-filing notification system, as well as electronic mail and regular mail upon the
following on November 15, 2017:

David J. Matty (012335)

Shana A. Samson (0072871)
Mark B. Marong (0082865)
Matty, Henrickson & Greve
55 Public Square, Suite 1775
Cleveland, Ohio 44113
(216) 621-6570
dmatty@mhglegal.com
ssamson@mhglegal.com
mmarong@mhglegal.com

Counsel for Appellees

/s/ Christopher P. Finney

Christopher P. Finney (0038998)
Brian C. Shrive (0088980)

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