Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Mar 28 4:21 PM-19CV002653

IN THE COURT OF COMMON PLEAS

FRANKLIN COUNTY, OHIO

STATE OF OHIO ex rel. ANDREW : CASE NO.

STEVENS
c/o FINNEY LAW FIRM, LLC : JUDGE
4270 Ivy Pointe Blvd. Suite 225
Cincinnati, Ohio 45245 : COMPLAINT FOR INJUNCTIVE
RELIEF PURSUANT TO R.C. 121.22
Relator, : AND R.C. 149.351

v. :

STEWARD GIBBONEY :
111 N. Front St.
Columbus, Ohio 43215 :

and :

CLYDE E. HENRY :
111 N. Front St.
Columbus, Ohio 43215 :

and :

JOSEPH M . MCCABE :
111 N. Front St.
Columbus, Ohio 43215 :

and :

DANIEL M. MORGAN :
111 N. Front St.
Columbus, Ohio 43215 :

and :

ERIN PROSSER :
111 N. Front St.
Columbus, Ohio 43215 :

and :
 Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Mar 28 4:21 PM-19CV002653

ABBIE STIERS :
111 N. Front St.
Columbus, Ohio 43215 :

and :

JACKIE BARTON :
111 N. Front St.
Columbus, Ohio 43 :

and :

CITY OF COLUBUS HISTORIC :

RESOURCES COMMISSION
111 N. Front St. :
Columbus, Ohio 43215
:
Respondents.
:

Democracies die behind closed doors . . . When government begins closing doors,
it selectively controls information rightfully belonging to the people. Selective
information is disinformation.

Detroit Free Press v. Ashcroft, 303 F.3d 681, 683 (6th Cir. 2002)

Now comes Andrew Stevens, on relation to the State of Ohio (“Relator”), and for his

complaint states as follows:

1. This is an action to compel compliance with Ohio’s Open Meetings Act (R.C. 121.22);

R.C. 149.351; and Section 3117.03 of the Columbus Codified Ordinances.

2. This action results from the conduct of the members of the City of Columbus Historic

Resources Commission (the “Commission”), whereby at various times a majority of the

members of the Commission would meet for “Business Meetings” without preparing

minutes, and in some occasions, losing, or otherwise making unavailable to the public

recordings of such Business Meetings.

2
Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Mar 28 4:21 PM-19CV002653

3. Relator ANDREW STEVENS is a person and resident of Franklin County, Ohio.

4. The Commission is a public body established in Columbus Codified Ordinance 3117.02.

5. Respondent STEWARD GIBBONEY is one of seven members of the Commission, who

on information and belief attended and participated in the meetings of the Commission at

issue in this matter.

6. Respondent CLYDE E. HENRY is one of seven members of the Commission, who on

information and belief attended and participated in the meetings of the Commission at

issue in this matter.

7. Respondent JOSEPH M . MCCABE is one of seven members of the Commission, who

on information and belief attended and participated in the meetings of the Commission at

issue in this matter.

8. Respondent DANIEL M. MORGAN is one of seven members of the Commission, who

on information and belief attended and participated in the meetings of the Commission at

issue in this matter.

9. Respondent ERIN PROSSER is one of seven members of the Commission, who on

information and belief attended and participated in the meetings of the Commission at

issue in this matter.

10. Respondent ABBIE STIERS is one of seven members of the Commission, who on

information and belief attended and participated in the meetings of the Commission at

issue in this matter.

11. Respondent JACKIE BARTON is one of seven members of the Commission, who on

information and belief attended and participated in the meetings of the Commission at

issue in this matter.

3
Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Mar 28 4:21 PM-19CV002653

12. Respondents STWEARD GIBBONEY, CLYDE E. HENRY, JOSEPH M. MCCABE,

DANIEL M. MOGAN, ERIN PROSSER, ABBIE STIERS, and JACKIE BARTON are

referred jointly herein as the “Commissioner Respondents.”

13. The Commissioner Respondents are named as respondents herein in their official

capacity as members of the Commission.

JURISDICTION AND VENUE

14. Jurisdiction is proper in this Court under R.C. 121.22; R.C. 143.351; and R.C 149.43.

15. Venue is proper in this Court because the actions or occurrences contained in this

Complaint occurred in Franklin County, Ohio.

BACKGROUND FACTS

16. R.C. 121.22(C) unequivocally declares “[a]ll meetings of any public body are declared to

be open to the public at all times,” and further declares that “[t]he 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.”

17. R.C. 121.22(A) requires that the Open Meetings Act “shall be liberally construed to require

public officials to take official action and to conduct all deliberations upon official business

only in open meetings unless the subject matter is specifically excepted by law.”

18. The purposes of the Open Meetings Act include: (i) ensuring openness and accountability

in government; (ii) affording citizens the maximum opportunity to observe the conduct of

public business by public bodies; and (iii) affording the accountability of public officials.

19. “R.C. 121.22 prohibits any private prearranged discussion of public business by a majority

of the members of a public body regardless of whether the discussion occurs face to face,

telephonically, by video conference, or electronically by e-mail, text, tweet, or other form

4
Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Mar 28 4:21 PM-19CV002653

of communication.” White v. King, 147 Ohio St.3d 74, 2016-Ohio-2770, 60 N.E.3d 1234,

¶ 15.

20. R.C. 121.22(H) declares invalid any resolution, rule, or formal action of any kind if it was

the result of meetings conducted in violation R.C. 121.22.

21. R.C. 121.22(I) provides for the issuance of a mandatory injunction upon the showing of a

violation or threatened violation of R.C. 121.22.

22. Columbus Ordinance 3117.03 unequivocally declares that “[a]ll commission meetings

shall be open to the public A record of proceedings shall be maintained and available for

inspection.

23. With respect to the disposal of public records, R.C. 149.351(A) declares:

All records are the property of the public office concerned and shall not be removed,
destroyed, mutilated, transferred, or otherwise damaged or disposed of, in whole or
in part, except as provided by law or under the rules adopted by the records
commissions provided for under sections 149.38 to149.42 of the Revised Code or
under the records programs established by the boards of trustees of state-supported
institutions of higher education under section 149.33 of the Revised Code.

24. R.C. 149.351(B) provides that:

Any person who is aggrieved by the removal, destruction, mutilation, or transfer

of, or by other damage or disposition of a record in violation of division (A) of this
section, or by threat of such removal, destruction, mutilation, transfer or other
damage to or disposition of any such record, may commence either or both… (1)A
civil action for injunctive relief to compel compliance with division (A) of this
section, and to obtain an award of reasonable attorney’s fees incurred by the person
in the civil action; (2) A civil action to recover a forfeiture in the amount of one
thousand dollars for each violation, but not to exceed a cumulative total of ten
thousand dollars, regardless of the number of violations, and to obtain an award of
the reasonable attorney’s fees incurred by the person in the civil action not to
exceed the forfeiture amount recovered.

25. In The New Victorian’s, Inc. v. Brown, et. al. (Franklin County Court of Common Pleas,

Case NO. 02 CVH03 2653) (the “Italian Village Suit”), the members of the City of

Columbus’ Italian Village Commission (a public body whose formation, purpose and

5
Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Mar 28 4:21 PM-19CV002653

function are substantially similar to those of the Commission) was enjoined to among other

things, keep accurate minutes of all meetings.

26. The injunction issued in the Italian Village Suit was premised upon a stipulation that the

Italian Village (i.e. a body whose formation, purpose, and function are substantially similar

to those of the Commission) is subject to the requirements of R.C. 121.22 (i.e. it is a “public

body”).

COMMISSION fails to prepare minutes of “Business Meetings” and removes,

destroys, transfers, or otherwise disposes of audio recordings of Business Meetings

27. On or about December 26, 2018, Relator tendered a public records request upon the

Commission, via email to Connie Torbeck, the Assistant Historic Preservation Officer,

seeking production of the records and minutes of the Commission ‘business meetings” held

in July 2018, August 2018, September 2018, October 2018, November 2018, and

December 2018.

28. In response to such request, the Commission did provide audio recordings of the September

2018 and December 2018 business meetings, but did not produce records responsive to the

request for the records and minutes of the Commission’s business meetings for August,

October, or November 2018; nor did the Commission provide minutes for any of the

requested meetings.

29. When Relator followed up on the missing records, Ms. Torbeck state via email,

“Recordings of the August, October, and November business meetings have not been

located,” and that “Formal minutes and attendance are not taken at the business meetings.”

COUNT ONE VIOLATION OF R.C. 121.22 – FAILURE TO KEEP MINUTES

30. Relator restates and incorporates by reference the foregoing paragraphs as if fully stated

here.

6
Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Mar 28 4:21 PM-19CV002653

31. The Commission constitutes a “public body” as defined in the Open Meetings Act. R.C

121.22(B)(1).

32. The Commission and its individual members, i.e. the Commissioner Respondents, named

herein, are subject to, inter alia, the mandates of the Open Meetings Act, which is codified

at Section 121.22 of the Ohio Revised Code.

33. The Ohio Open Meetings Act mandates that the Act itself “shall be liberally construed to

require public officials to take official action and conduct all deliberations upon official

business only in open meetings unless the subject matter is specifically excepted by law.”

R.C. 121.22(A).

34. The Open Meetings Act also mandates that “[a]ll meetings of any public body” be “public

meetings open to the public at all times.” R.C. 121.22(C).

35. On information and belief, on or about July 12, 2018; August 9, 2018; September 13, 2018;

October 11, 2018; November 8, 2018; and December 13, 2018, a majority of the

Commissioner Respondents conducted a meeting of the majority of the members of the

Commission.

36. Such meetings were prearranged.

37. On information and belief, during such meetings, a majority of the members of the

Commission met and deliberated on public business and/or took official action on matters

of public business.

38. Despite the mandate of the Open Meetings Act that minutes be “promptly prepared, filed,

and maintained and shall be open to public inspection,” the Commission has, as a matter

of practice and policy, failed to prepare, file, or maintain minutes of its “business

meetings,” including, the meetings specifically at issue in this Complaint.

7
Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Mar 28 4:21 PM-19CV002653

39. Thus, the Commissioner Respondents and the Commission have violated or threatened to

violate R.C. 121.22 by failing to promptly prepare, file, and maintain minutes of its

business meetings, and to make the same available for public inspection.

COUNT TWO VIOLATION OF R.C. 143.351 – Disposition of Records

40. Relator restates and incorporates by reference the foregoing paragraphs as if fully stated

here.

41. The Commission constitutes a “public office;

42. On information and belief, the Commission, has a practice of making audio recordings of

its business meetings.

43. Such audio recordings constitute “records” as defined in Section 149.011(G) of the Ohio

Revised Code.

44. The Commission has removed, destroyed, transferred, or otherwise disposed of the audio

recordings of the August, October, and November 2018 business meetings, other than as

provided by law or retention schedules; or threatened to remove, destroy, transfer, or

otherwise dispose of the audio recordings of the August, October, and November 2018

business meetings, other than as provided by law or retention schedules.

45. The Relator is aggrieved by such removal, destruction, transfer, or otherwise disposition,

or threatened removal, destruction, transfer, or otherwise disposition of the of the audio

recordings of the August, October, and November 2018 business meetings.

WHEREFORE, Relator on behalf of the State of Ohio, hereby prays and request that the Court:

a. Issue a declaratory Judgment that the Commission and the Commissioner Respondents
jointly and severally, have violated or threatened to violate the Open Meetings Act by
failing to promptly prepare, file, and maintain minutes of its business meetings, and to
make the same available for public inspection;

8
Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Mar 28 4:21 PM-19CV002653

b. Issue an injunction compelling the Commission and the Commissioner Respondents to

promptly prepare, file, and maintain minutes of its business meetings, and to make the
same available for public inspection;

c. Pursuant to R.C. 121.22(H), declare invalid any resolution, rule, or formal action of
any kind that was the result of business meetings for which no minutes were created;

d. Pursuant to R.C. 149.351(B)(1), issue an injunction prohibiting the Commission from

removing, destroying, transferring, or otherwise disposing of audio recordings of its
business meetings other than as provided by law or retention schedules, or threatening
to remove, destroy, transfer, or otherwise dispose of audio recordings of its business
meetings, other than as provided by law or retention schedules;

e. Pursuant to R.C. 121.22(I), award Relator a civil forfeiture of five hundred dollars for
each distinct violation of the Open Meetings Act, as well as an award of all court costs
and reasonable attorney’s fees; and

f. Pursuant to R.C. 149.351(B)(1), award Relator an award of all court costs and
reasonable attorney’s fees.

Respectfully submitted,

/s/ Brian C. Shrive

Brian C. Shrive (0088980)
FINNEY LAW FIRM, LLC
4270 Ivy Pointe Blvd., Suite 225
Cincinnati, Ohio 45245
(513) 943-6656
(513) 943-6669 (fax)
brian@finneylawfirm.com

Attorney for Relator Andrew Stevens