orignal v complaint, case no: cv 00055 and the appropriation actions, case nos. 12 cv 0073, 12 cv...
TRANSCRIPT
ORIGNAL v
THI
THE STATE OF OHIO, ez red.LISA STAINBROC?K et at.,
RELA'TLTTLS,
vs:
BC}ARD O-.F t'IJ'I'NAM COUNTYCOIV11^..+l.I.SSI(}NERS;
0X1:.iENT.
SOPItE+ME COURT OF OF.ttO
Case No, 12-1263
Original A.ctian in Mandamus
'S iViRI4'I0RkNJ)VM INOPPORELATOP , ..TO RESPC)NtJEN'''S 14'Tt?TCOItit`'F6IM
T E11is (0Q38555).CMJNSVES- OF RECftRD)
Linde ;'I?lrst VVebb (00I 2673)LYOY & 1VTOAN, L'I'P7.4430N. Flolland-Sy.tvani a Roady nia, M1o 43560-2149Teisp^o= 4 f 9- S 82-71 Ot1Faesi'unftt 419-882-7201
w Cunn.i.nghaxn (00070505){ fpr Buckeye Stave^'r13AM LAW OFFICE
eet, Box 7(SCtawa., Ohio 45875Telephone: 419-523-3396
COUNSEL FOR RELA'1'{}RS
F
lsnaati. tw.ebbr, s^^lyretaan.ecam
LED
AUG 1 6 Z01Z
CLERK OF COURTSUPREME COURT OF OHIO
O. B#ielc,ensderPer (0073019){C.'C7.ULtilStrf., t.J,F' ALC.:C1X-U)
9277 Centre Poztate L}rive, SuitWest Chester, Ohio 45069Phoue:; 513-8fi0-8200Faeaitqile: 513-870-0999Ema{1: spisilIiM^c^Ftbtaw::emia
Scott i7., Phillips (0043654)Frost Brown Tbdd. LLC
Facsitciffo: 513-651-6981Eratal, aiil^ck^^ter^er(cr^tla^.coiia
u^ne. 5:13-^$1.6162:Ciztoatzaiati.,.Ohio 452,02
3300 Cr̀reat.tlm.enean Tower301 East Fow-th Street
Frqst Brocvn 'Ftidct LLC
Frazrk J. Reed, Jr. (0055234)Frost Brown Todd LLCOne G olnmli:ns, Suite 230010 West Broad StreetCaluznbus, Ohio 43215Telephone: 614-464-1211Facsimile: 614-464-1737EiAail: free &ftisttaw.eorn
COUNSEL FOR RESPONDENT
0
IN THE SUPREME COURT OF OHIO
TF3E STATE OF OHIO, ex reel.L:I-A STt NWO(7K. et ai.,
RELATORS,
IiR.Z? OF PU't'NAM CC3UNTYCF?tuF^iT^^F{72^£^tS,
RESPONDENT.
Case iVurnber: 12-126;
t7eiginal Action in Mmidaanus(Ftabizc Itee:ords)
Iielatar's 7VlemvratzdMirt.Qp,posWunto k-cspond0u.t"'s Mu.tion to I7FstiFSs
actiori seeking to e,4mpe1 the Piitnarm County
[duct its activities at public x:ncetings and prepae coiu,piete records of its
the pu'hlic has the oppartunity to krnow aud understand the aeticstis oftheic elected
eepresentatives. Ptielators have a right to 1czow not only what the Commissioners' final decision
is on a matter, but the ways and means by which the decision were reachecL This Mandamus
action challenges the Commissioners violation of Ohio Public Meeting and Public Reeord Acts
regard-ing the Resolrttion it purported adopted to "author.ize" the Coutsty Road 5 Project that it
liad already beg[zn to construct, had let contraots and or.dered the movement of utility poles
without any resolution of necessity authorizing the project in which the public was permitted to
participate and voice their objections.' Respondents attempt to fratne the issue that Relators
stop a road widening project authorized by that county's connn.issioners;" but the
1 The Commissioners had already decided to rubber stamp the Resolution presented bySchroeder at the July 27, 2012 hearing authorizing the construction of the county road 5 projectbefore the hearing ever began (See, Record of Proceedings of July 27, 2012 hearing; paae 136,LL 24-25 an.d page 137 LL 1-15, attaclied in pertinent part as Exhibit A).
questing this Court to compel the Respondent to eonduct public busines;
nve rnoaniii2g,ful participation consistent with due process guaranteed by the Qhia and
United States Constitutions.
BAckgrotrntl
avoid the cr.rrntnon sense interpretaticiu
stretch tire facts beyond any reasonable interpretatiorr by sugg
County Boaril of CUminissioraers was corisideting a widening
IS of the 17 retators in this aoYiian filed an action in the Coirsm..on
A c:urso:
alfeady d.eci€l.ed '
f the complaint cleariy dei2tonstca;tiel
;pondents activities;. they
at "wh:11e the Pu
f07'Putriarn f::,°{}uilty I{k7ad 5,
'leas Court, piitnairi Cawaty:"
Commissioners had
;y road 5, had obta.itted funding and kvere intendint; to take private
ped,y by eminent damain proceedings to initiate construstii^tt cvithout pravidipg n<atice to the
^ That action ch&1lenged the Cominissiane€s e£forts tci ^^ res,olutions to taiee private
property without notice to the property owners or public in violation of C7hio's 1'ublie Meeting
Act. After the af'fected propeity owners filed the cotnplaint; the Responzlents noticed a ineeting
5 to discuss the "apprC+priation pxocess" nttd eon-wA their Ohio Public lYFeetiaig Act
The affected property owners responded by filing a motic,n for temporary res'
order asiciag the Court to en,join the rn.eeting scheduled for April 5, 209:2 until such tirn.e as it had
ues pending before it. Ohio courts have held that an injuryst
affected property owners does justify injunctive relief In cases where allegations have been
raised of Sunshine violations, the applicable statzite provides that "[u]pon proof of a violation or
thi'eaten,ed viblation of the Sunshine Law, irreparal5;le harm and. prejuclice shall be "concltasively
and irrebuttably presumed." Ohio Rev. Code § 121.22(I)(3) (2004). Upon establishing a
violation of Ohio Rev. Code § 121.22 (I)(1), the court must issue an injunction regardless of
2 P.espondents consistently mislead this Court regarding facts and rulings in the original
Complaint, Case No: CV 00055 and the Appropriation Actions, Case Nos. 12 CV 0073, 12 CV
0074, 12 CV 0075, 12 CV 0076, 12 CV 0077, 12 CV 0078, 12 CV 0079, 12 CV 0080, 12 CV
0081, and 12 CV 0082, requiring a snore coinplete rendition of proeedural posture leading to theCorstpiaint for an Original Writ of Mandamus and Ancillaiy Tnjunction ftelief.
whether the injunction is actually and preseartly needed in order to prevent a fu€t
e&, FaYette Volunteer Fire IJent No. 2 I= v. Fayette Twp Bd. Of'fwp Trustees (19
Ohio App.3d 51, 54, 621 N.E.2d 855: in spite of the clear mandate, the trial court denied the
ry restrainingorder stating: "PlaaTttiff has not demonstrated a probability of suoeess on
and that unless Defendant's conduct is enjoined that Plaintiff would likely suffer
immediate and irreparable harm for vvhieh there is no adequate rernedy at law," J'E, April 3,
2012.
On April 5, 2012, the Coanin-issi:oners, re^enacted the Resolutions for Appropriation when
they had noticed the ttteefiing to discuss the "appropriation process." There wasn't notice to the
public that the Corrunissioncrs were goinag to take any action other than discuss the
"appropriatian proc.ess.°" After re-enactiltg the ::rkpprop'riata:on 12.eSolutions, the
Commissioiiers filed suit to "quick take" the properCy and begin the constructioit. The af£eeted
property owners filed a m s that the provisioiis of R.C. 163 to talte
property could not he inv*ed Guith.out a stateinent in, fhe pctltkort that all the conditlons p
to the taking liad occurred. The property owners asserted, pursuant to Civ. R. 9(C), that the
Gornmission.ers did iiot compl;y with the neces5ary statutory conditions preced.ent to iniriate an
action to appropriate ptoperty because they had not enacted a Resolutioa of Neeessity
auihtrrizing the county road 5 project attd failed to comply with the statutory requirements in
R:C. 30?.08, R.C. 5555.06 and R.C. 5555.07. Ttie Court del7ied the rnotion by stati
Court carefully considered th..e Motion to I.>isaniss and pleadings. The Court fm€Is said Motioit,s
to Dismiss not wetl takeu." JE, July 9, 2012.
On July 12, 2012, the affected propeity owners filed a motion for summary judganent
asserting that the Goinmissianers did not comply with the statutory and constitutional
requirements authorizing them to widen a road because they had not enacted any resolution
authorizing it. On July 11, 2012, the Prosecutor apparently wrote on the dry erase board
"Prosecutor reg Rd 5" purportedly scheduling a meeting for July 12, 2012 at 4:00 PM giving
4
the public notiae. The Pros+
Qwners' counsel statiiig:^
also sent a "courtesy noti ected prop
This is to let you know that the Futnaazn County Commissioners willow, July 12, 2012; at the Putnam County Coantnissioner's otface;
begim'ng at 4:00 p.7n. to cotzsider whetber or not to conduct a hearing,.. ,puxsuant to Ohio Revised Code § 5553.Od. The ;tornearsow, arstong other iterns on the posted agenda, is ior a not another Ikparing is necessary €or pttbl'iG cr?nvertience and weIfitl`^widen Gaunty Road 5. As you know, tbp Putnatn &oard of CountyCommissioners have strictly complied wittr Chapter 183 of the 0hioRevised Co& Nevertheless, the Boerd, in the abundance of caution, arrtibecarrse anterestpd property owners have complained, believes it is in thebest i^tterest of the County to consider the pree-visions of Cbapeer 5553 ofthe Q3uo Rovisud Code in order to put the isstte ta rest, once and for a1l,lij the event that the Coanniission decides to oanduct a Ilearir}g, a separateResolution wil9 be issued torxiarrow; and a heartng date tivill be seheduledat a future date, at wliich time your clients will be free to provide any
;e
Eyll., 20Gunn'srz^2.
This aotion wt
y that they deem ap:propr}ate.
Einail to Linde Wqbb, Dan E11ts, MattPuttourosecutor@brrt;izt.net, Affidavit of Lirrde Web ,
ris Gott
y
ly 26, 2012 because the two Comtnissioners atid
the Prosecu:tor had obhviously pre-prepared and discussed the Resolution that was issued on July
12, 2012 in total disregard of Qhio's Public Meeting Act and intended to enact it regardless of
the discussion or the public's objection.
Relators are asking the Court to order coanpliattce with the Siurshine Act, and give the
notice abottt the project consistent with the principles of due process and their
constitutional right to participate in their govermnent. Respondent attempts to dismiss this
Court's constitutionally ereated subject-znatter jurisdiction has been
ousted by the pendency in a common pleas court of statutory public tnectingsLrecords violations
brought by plaintiffs who are different to the Relators in tltis proceeding.
This Court's original jurisdiction in mandamus is created by Section 2(B)(1)(b) of Article
IV, Constitution of Ohio. This jurisdiction is self-executing and not subject to abridginent. "No
5
law shall be passed or rule made whereby any person shall be prevezzted from involving the
original jurisdiction of the Supreme Courk;' Id §2(B)(3). See State ex rel. National City Bank V.
Board of Ed. of Cleveiand City School Dist. (1977), 52 Ohio St. 2d 81, 86-83. Even absent a
Ty provision for such remedy, an ot`igirtal action for mandamus in this Co ,trt is vailable to
enforce the public right to inspection and copying of public records. State ec rel. Patteast+n v,
Ayers (1960), 171 4hin St. 369, 372.
By coxtrast, wbile the Gourts of Convnon Pleas. are established by the Secti4n 4(!i),
TV of the Cortstitution of Ohio, t2ittit ,jurist7ittinit is wh.blly a creature of s:tatutte. Td. §4(B)
("the courts of cornnion pleas and division thereof shall have such original jurisdiction #** as
r be proceed by law.") See Central Olvac 71'afiasil Authrzrity u 7'innsp. WoYlc-ets Utzion of
zea (1998), 37 C7it.i.o St. 3d 56, {"flie juCisdietion of the cortamott pleas contts is lirnited to
gislature.may chaose to bestow."). Putsuant to that prineiple, the corcamottpleas
have no original jur`isdietion in mandamus exccpt as authorized by statute. State ese reZ.
S'ibarca Corp, v. FPctcs (146A)177 Clhio $t. 81, 83,
R.espondenm argne iri their motion to da`stniss that the cornmon ple,as eaurt has
jttrisdictiotial priority over this Court's original jurisdiction. Ftzrth.er T2espon.dent argve
s are the same. The rrtle of jurisdxc.tion.al priority applies only when the causes at' action and
the parties are the sam.e in both cases, "if the secorkd case is not for the same eause of actien nor
between the same patties, the former suit will not prevent the latter". See State ex reZ. Jud sotz; v.
SpaTzr (1987) 33 Qbio St.3d 111, 113,
Attempting to evade the jut`isc}icti.oalal-ptiottty rules requiret'nent of claim and party
i[ientity Respondent advances a theory which advances a revision of the rule. According to
Respondent, the claims raised in the two lawsuits do not really need to be the same, it is etzougli,
:lai#17s are mereIy simitai'.
Reviewing Respondents contentions and mistakes of fact, goes a long way toward
demonstrating bow nieritless those contentions are. This memorandur.n more fitlly demonstrates
those failures. As shown be.low; Respondent Motion mustbe overruled.
The parties and clainis in the common pleas proceeding and in the present action arenot the identical.
6
Respondent argues that this Court's jurisdiction is defeated by the pendency of a civil act
:nurt of commvn pieas for Putnam County, State ex re7, Patrick Brothers, et
County ,goezrd afCatnmrssiraraers, et ad. (Putnam C.P. No. 12 CV O055). The coznpa
stated b
State eat ret. Usa Stainbrook Purties;
this aetion are Lisa Stainbrook and Teny L. Stainbrook, who are
living along County Road 5 in Putnain County. There is no relat"stanship hekwecen
k;rsa Staintzx'ook and the plaintiffs from the Putnam County case, other than they live along the
same resad. Lisa Sta'itibrook and Terry L. Stainbroook have not yet had their property taken by
ta'Ln but d'i(J astC .fcrr rriistificati.an of any meetings relating to county roar:l. 5 prc:tjcct.
The solo Rospondent is the Pidnam County Board of Comanissiotzers. Cithcr relators named in the
IvJtandatnus action itt ttus court•. are the same as in the Putnam County case.
srq
The plain°Ciff relators itn Patrick art; individuals or catvpanies that own lantl along County
Road 5, whose property is the subject of eminent domain, and they are taxpayers of Putnam
County. The defettdants-,respan;dents in that actioza are the Putnam County Board of
Gomi».i..ssiotters, attd two ofthe cominissiaaters individually.
^koQk C.laizrksa
this action, Lisa Stttiaahrook asserts violations under the public Records Act §149 ai.td:
Public Meeting AcC R:C. §T 2.'l, utcluding the Board's refusal to send her notice of Gounty Road.
5 matters, fa s̀lure to properly rxotice its ineetings, providing inaccurate or iaacomlilete notices of
conduetireg meetinga in secret, its pattern and practice of having separate mi:nutes
a^vailahle for the puhlic and private minutes ("Discussion Notes") that are kept in its computers
and not readily available to the pu$iic for inspection, its refusal to adopt a written policy in the
manner of inf'carming the public of the time, place and subject matter of their meetings so that the
public can attend the rneeting and participate; practice of attempting to, take action after their
conduct "fix'tng" their unlawful conduct in violation of the Public Meethrg Act and Public
Records Act, and noticing their meetings by writing on a dry erase board in the back of the office
of the Board of Commissioners.
7
In addition, the Original Complaint in Mandainus cluestions the legal sufficiency of
notice of a meeting lield on July 12, 2012, which was written on the Conunissioners Dry Erase
Board, inside their offices, on Wednesday, July 11, 2012, at 11:45 AM, stating that there would
be a meetizig "prosecutor-reg Road 5" at 4:00 PM on Thursday, July 12, 2012. The Respoiiden:ts
claim that this was a "regu ^ting, and thus there was no necesSity to rlot press. A
reporter €rozn the Pu:tnam County Sentinel was notified thirty minutes before the rneatting.
Ballinger affidavit ¶19-24. In faet, for the newspaper to find out about that meeting, the reporter
ave had to sitth.ere all day Wednesday, or Tuesday fiir that ziciatter to Itnow ffi- 4t the Road
5 situatiori-was goingto be discussed. See Wyse v Rnpp, 1995 Wl. 547784 (Ohio App.6 Vist.):
Thete was no "agenda" eneeting set for that day, even though it is a day set aside for a regular
rnecting. See BallinWr aflidavit ^22 and Exhibit 1, 000006-000008.
i Stainbrook seeks anrillary r.ehef preventing respondent from reaping the b€:nefits, of
tlteiir ' ontinued violation of the Ohio Sunshine Act, including continuzng
constrSiotlon qf a rtaad nnlil'tltisCourt det.erASZines the issues: As set €orth in 1$:olators' Corii]7laitit;
at resolutions that were passed on. July 12 and July 27, 2012, were
prepared without theknowledg.e of Commissioners Jerwers3, and any discussion about those
resolutionsaud the elees"sitrn whether to draft those resalutions are not in the reetsrd, and are void
as having been reacbed in violation of the 1VSeetings Act. Thus, Iizlator's Complaint seeks
rary injunctive relief to pievent further action until the decision can be tested in this forutn.
Goznplaint for an t}riginal Wr[t o£'Mandainus, page 22 (PrayerIG).
State ex rel,..Y'atr.ick £3ratlitrs Clallms: ,
The Patrick BYothsrs plaintiffs advanced a braad array of claivns for relief, including
charges that the defen.dants-respondents had violated the Public Records Act and the Open
Meetings Act (R.C, 721.22) in the course seizing their property for the Road 5 project. In
' Transcript of July 27, 2012 "hearing," page 5, line 20-25 and page 6, lines 1-10, in whiehCommissioner Jerwers states "Gommissioners Jerwers; Ladies and gentlemen of the audience, Ian here to talk to you today aiid to give recognition and for the public records that, first of all, inthe last two hearings before today I was not notified or made aware of that a vote was to be taken
8
addition, the complaint alleged that the conduct of the defendants-respondents in eontinititg: to
violate the {)Itio Sunsh.ine Act was a breaeh of their fiduciary duties to the citizens of the couAty.
'I'he complaint sought relief by way of injunctions and mandamus, but involved otlt.er rnatters
iolation of the Ohio 5unshi'ne Law. See Plaintiff's Amended Complaint (Appx_ A to
Respondent's Motion to Dissniss in this action) (hereinatter "2'atrick Atriended Ctrmplaint).
The Patrick Brothers plaintiffs did not allege i.uatters involving the resolutions passed by
rnajorityy vote on July 12, 201-2 or Juty 27, 2412.
The Patrick Brothers lal.airztiffs did altege that two of the commissioners breached th
fiduciary duty by faiilinb to pass a unaritkmous resolution of necessity before they filed erninent
dornain proeeedings in in Pu.tnam County, and in fai.tinp; tt^ discuss it, noticing it and authairizittig
it, ai2d cotttinuing the construction of the retad without auiiiority. Patrick Brothers Amended
Cuzupplaitst, pp. 15, 16.
Affidavit of 1Vtarlena'6atlirtger (filed in support of the Original Conmplttitet
Mandamus) discusses prior violations crf the Uhio Sunsbitte Act that are alleged in the Patrick
Brothers Amended Com,plastat; those viqlations are n.ot asserted in the Qsiginal Cotnplaint for
Nlan.damus but were used to illustra:te to the Court that the pattecn of corrzluct and violations by
the.Respcntdents bave been continual and non-ceasing, supporting the issuance oFtheTcrn,porary
12;estrainirig Oztlez,
Despite the manifest di
contends that the two actiotls ;
rence beti^veett the two actio-ns, Responden
rule, because the claims are the sa
y the sarne suit or purposes of the j
and the parties are the satne,
tt tion to di
isdictional piiority
contentions are so
patently without merit as to suggest that they are raised, not for serious consideration, but merely
as a vehicle for further delay.
To delay this Court's action on the Complaint fiir'4Vrit of Mandamus is not surprising.
Indeed, under the circutnstanees one can fairly infer that the Respondents hope to sprint toward
the final construction of Road 5, unfettered by any legal constrai , including the troublesome
requireinent of open-rneetings and public-records law. Their conduct supports the Relators'
pending request for immediate injnnctive relief to prevent that very result. The Board of
ed this chamber-" (See, Record of Proceedings of July 27, 2012 mceting, attached in.nent part as Exhihit A)_
9
GQmmissiortaa's hope that once the road is constructed, that there can b
them, even if their actions ar^
brought against
This Coartlias jurisdiction to issue a'4Vrit of iVLandaanus pursuant to I2..C.121.22,R,C. 305.10 and R.C.149:43.
RespoAidents assert that the relator has a plaii and adectuii;t.e remedy at law by way
of tnamiatory injunction or cleclaeatory,judgment, and thns the Ori,ginal Mandamus to this Court
sltould fail, The court in the State ex r-et: Plain Dealer Publishing Company v. Biasnes, 38 Ohio
St:3d 165 (Ohio 1988) stated "we have held to the contrary in Stater ex rel Fenski v, ibScGovern
(1984^ 11 Ohio St.3e 129, 11 OBR 426, 464 1V.E.2d 525, paragraphs one and two of the
syllabus; Stade3 ex rel. Pr-essley, v Fndus: Comm., snpra para•grafrb six of'the syllahus. Although
the availability of declaratory, judgment may be considered by the court as an element in
exercising its disctetion whether a writ shoukd issue, it would ntst be a complete remedy in this
case a.bsenit ancillary injunctive relief, and thereforc is not a basis upon which to deny the writ.
State, e.̂ e rel: FenskF, v. Mc.riovern, supra, parag,raplt two ot'the syllebus:"
Respottdents further asserts a myriad of election law c:ase and cEanstituttioaial challenges to
ve aets in tr,yi:ng to deny the right to Mandaznus, not dealing with violations of the Public
Records Law or the Rutalic Meetings lawv." In particular, one such case invol-ving statewide
electi.on laws was Stote ex rel. Evaiis v: Blaekwell; 857 N.E.2d 13$(C7hio 2046), 2006-1781. The
Evans case iztvolved an expedited election caso where the relator, sough a writ of mandamus to
compel Secretary of S-tate Blackwell to remove a statewide initiative from the ballot. This coi:nt
held that "we do not have origi.nal jurisdiction over cltallenges to the submission of proposed
ide initiative that propose a law like "1`lie Smoke Free Workplace Act". The (71iio Supreme
Ganrt does have origiinal tnandamus povver in actions deahng with the Ohio Sunshine Act.
Mandarnus shall issue when Relator has a(1) clear legal right to the relief prayed
for (2) Respondents are under a clear legal duty to perform the requested act, and (3) that relator
has no plan and adequate remedy at law. State e.c ret Pressley v. It3dtts. Comm. (1967) as cited in
° State E:x re. Sataw v. Gaatsse-ikfilliken, 786N,E.2d 1289 (Ohio 2003), 2003-0150(constitutionality of H.B. 329 as applied to tax apportionment statutes, and order respondentfrom applying H.B. 329), State ex rel. Grendell v. Davidson (1999), 86 Ohio St.3d 629, 634, 716N.E.2d 704 (challenging the const'stutionality of A.m. SLib.H.13283 - in that holding thatlegislative acts cannot be declared invalid for failure to observe their own rules, court holdingthat this case "does not invoke a pubic rlght. Rather it simply encompasses the inner workings ofthe General Assembly.")
10
State ex rel. Plain Dealer Publishing Company v. Barnes, 35 Ohio St.3d 165 (Oltio 198$). In
Plaizs Dealer case the newspaper was barred from an ongoing meeting, and Relator n,
L a writ of mandamus 'ut the Court of Appeals, to compel respondent to opetl tlae on-go
I as well as future meetings. While the Plaaan Dealer amended its complaint to
delete any request for prospective relief; the court of appeals stated that the writ of nmandamus
=le to order the perfornnarlce of a prospective aet, and dismissed the appeal as
moot (as the meeting in qnestian was atljourned). The Obio Supreme Court heard the case as a
matter of right, and found that itteetiap will normally adjourn before the practice of exclusion is
subjected to judicial review, auzd that the case raised issues concerning pr.tblic right which are
"capable of repoCition; yet evatl:ing revies^v". 3uzte er r•el. The Reposftary u. Unger (19$6), 2$
Ohio St3d 418, 420; 2$ OBR 472, 4?4, 504 N.E.2d 37. The court held the relator is entitled to a
peremptory writ of mandamus to cotmpel Respondents to open the meeting of council to the
publi,e:
Relator, Lisa Staizabr^ook asks ttaisoourt to order the Respondents to notify her, who
a rnatter invcrlv Couuty Road 5. The Itespondetxts have a elear legal duty to eio so,
rr the Pulrlic Meutings Act; l'^.C. ¢3.21:22(p') and have refused to dr:i so. See Affidavit of Lisa
Stainbrflok; Or-"igina9 Complaint for tvlt.damus.
Relator Thomas Pa.tri..ck asks tlxis c4#urt for an order to the Resportdent to notify him
whenever that there is a rztatter involv`i:ng Courity Road 5. The Respondents havtr not doite so,
and yet have a clear legal duty to do so, under the Public 1Vlecting Act, R.C. §121.22(F). See
Affidavit of ThomasI'atrick, Original Complaint for Mandamus.
In addition, Relatars ask this court to order the Respondents to post notices so
public and tlae press are informed of inectings, They have failed to do so.
at the
The Relators base their entitlemcstt to a Vitrit of Mandamus on R.C. 121.22, R.C. 3-05:10
and R.C. 149.43. "Mandanius is ttte proper remedy to compel compliance with the Public
Records Act, and persons requesting records under R.C. 149.43(C) need not establish the lack of
an altemative, adequate legal remedy in order to be entitled to the writ." State ex rel: Lucas Cty.
Bd. C3fCommrs. v. Ohio E.P.A. (2000), 88 flhio St. 3d 166, 171-172 (Citations oanitted). "R.C.
121.22, 149.43 and 305.10, when read togetlrer, impose a duty ou all boards of county
commissioners to maintain a full and accurate record of their proccedings." T3rhzte v. Clzttton Cty.
&d. OfG'ornknrs (1996) 76 Ohio St.3d 416, 667 N.E.2d 1223, 1996-C71iio-380; Syl. 1. "For public
I1
ed under R.C. 121.22 and R.C. 105.I0, fittl and accurate minutes must contain
sufficient faets and information to perrriit the public to understand and apprcciate the rationale
behind the releva.nt public body's decision." Id. Syl. 2. Relators' asserted the Respondents failed
to promptly prcltare coinplete and accurate minutes of the July 12, 2012 meeting and note the
ob;jections requested to be included in the minutes (Ccirnplaixtt for An CJriginal Writ of
-Mqndam.us,INgG-12).
An examinatian of the Minutes demonstrates that there are no facts or information to
support fl;ie adoptiunof the Resolution other than "tre prosecu.tor read:a proposed resolution to
be passed upon tlte recommendation of co-counsel contracted to assist in the Road 5 lawsuit"
(Affidavit o.f Mathew Cunningham, $12-11, Exhibit 1, July 12, 2022 . Minutes and Exllibi.t 2,
Discussi-0n Notes). Simply, the minutes do not com.ply with the Ikespci'ttdents obligations under
Ohio Sunshirle La.w.
s beinggmai#ita#ned ("T}isCt}ssictn NQtes") ate not readily
airailabte tothe public (Cornplaint for An Qriginai Writ of Mandamus,'{MN-92} and do not
contain the facts or information to support the adoption of tlhe tZesolution. Additionally, while
the discussiort notes were provided to Attorney Cirtgham: he was cxplicitly told they were
not comlSltzte and were still being e`dited (Affidavit of l^'latlret?r Cunningham, ¶11}. As far as we
lmow, the Respondents are still adding to the discussion notes.
iVlrsre disturbing were the Prosecutars' and Commissioners' refusal to answer questions
ort 3uly L21aut to tlaem regarding the powers attd du€ies of tlte Board regarding at what meeting
tion was discussed asking it to be prepered and preserited by the Prosecutor on July
12, 2012, what was the required vote to pass the resolution of necessity, and whether the Board
ecutor decided to use I2 C. 5553.04 so it could be passed bymajority vate (Affidavit of
ebb 14}.
R.C. 305..10 s
erk slaakl state fnlly and clearLy in the record any question relatingto the powers and duties of the board which is raised for itsconsideration by any person baving an ixrterest therein, together with thedecisioia ai-i sucli, question, and shall call and record the yeas and nays bywhich the decision was made. When requested by a party interested inthe proceedings or by a paity's counsel, the clerk shall record any legalproposition decided by the board, the decis'ron thereon, and the votes bywhich the decision is reached. If eitli.er party, in person or by counsel,
12
xception to such decision, the clerk shall record the exceptiotisecord of the decision. (Emphasis add
Obviously, the niinutes a.ad discussion notes are silent as to the questions raised and the
Respondents' refusttl to answer the quesfiom presented, preventing the public
having a ful2 and accurate understandings of the proceedin$s.
The Prosecutor and Commissioners m unable to deny they knew about the Resol
its teLms or who would move to adopt it and second it because it had been pre-typed (Cornplaintr
1170-81). Additionally, the "eourtesy e#nail" from thc Prosecutor to counsel for tlae prc3p+
owners states:
d, iu tlte abundance of caut's4property oveiiers have complained, believes i'.tha r"iiurrtv to eonsider the vrovtsitins ot t.:hat7ter a
Ohio Revised Code in order to put the issue to rest, once and #`or all.fTt the evettt that the CosnrFiissioa decides to conduet 4 hearing, asepat'ateRestrlution will be issuod tomorrow, and a lrearing date will be scheduledat a future date, at tvhacli ti7ns your clients will be frce to provide artye'videnee or testirnony that they deernappropriate.
luly 11, 21012 3.50 Plrrf, L-irFaCunniiag'harn from Putc,oRr.,'osoeut
Webb, Dan p.klis, MattAffidav':.it of Linde webb,
Otaviously, Cornrnissionet's Love atid Schroeder had conversat'tons wit'h the Prosecu.to
being presented at the July 12, 2012 tn.eeting aud excluded Commissioner Jerwers
emrversatioiis (See, footnc>te 3).
for the Relators open-meetitzgs mandamus ¢lraitn, notwithstazading the
Respondents ass.ertion to the contrary, is not a clainx for declaratory judt,nent and prohibitory
in.junction, and neither a declaratory judgment nor a prohibitory injunction would provide aia
adequate remedy in the ordinary course of law. This Court succinctly addressed this identical
issue in Stttte ex rel. American Civil Liberties tTriion of Ohio, Inc. v. Cuyahoga Coirnt,y? Board irf
Commissioners, et a1. 128 Ohio St.3d 256, 943 N.E 2d 553, 201 l-dhio-E2S.
For the t1.C,LU's open-rneetings mandamus claicn, nohuithstanding theaespondents' contentions to the contrary, tlie claim is not art ill-disguised
claim for a declaratory judgment atid prohibitory injunetian, and neither adeclaratory judgment nor a prohibitory injunetion would constitute an adequateremedy in the ordinary course of law. A declaratory;judg7nent would not be anadequate rentedy without a rnandatory injunction ordering respondents to
prepare, file, and mairrtain full and accurate meeting minutes of past closedmeetings of Tp.C and its workgroups and to compel them to conduct all TECand workgroup meetings in public. A mandatory inju'nctiozi, however, is anextraordiaxary remedy that dtles not preckude a wr3t of mandamus, See State ex
r•cl 0lsio Lrberir Csruncif v. Brunner 125 Qhio St_3d 313. 201II-Chio-I 845, 928
N^E.2d 41(l, 128. Similarly, R.C 121.22(1), vvhich affords manttatory injunctive
relief by way of a coxnrnon pleas court aotion to enforce t1ie provisions of theOpen Meetings Act, does not prevent a mandamus action. See State ea reL
F^ktnratd t,pader v. Ricketis (19901, 56 Q3iio St.3d 971(l2 5fi4 N.E..2d 48And a prohibit^ory injuttotion would not provide the ACLU with the relii
raque5ts: an order to errrnite•1 respottdents to eantply -with R.C. 121.22 bypreparing, filizig and ircaintaining full and accurate m.e<:ting minutes and tia holdall of the TEC an.d workgroup meetings in public. C7/zicrLibert- _Catar7.cfl at 128
ors are entitled to a writ of mandalnus compelling the respondents to comply witli R.C.
121,22, R.C. 149,43 and R.G: 31}5.10 by preparing, filing, and maintaining full and accurate
meeting xYaiikutes and to hold allo:f its rnectings in public,
The jurisditctionaPprlonty, rrule has no apltlt¢atz+aR to thepreaent ea
Respondent's motion to dismiss is predicated entirely on the long-standing Ohio
7urisdictioiial priority, Uttdcr th.e rale, when two or morp., tribunals have concurrent subjeet-
niatter jarisdiction of a claiin t:he ftrst'firibuna,l in which an action on the claiun is brought acquires
j;urisclictiotx of the action to the exelusion of any other tribunal's power to adjudicate the claim;
As between coiut`s of coneurre,ut jurisdiction, the tribunal Nvhoae power is first invoirod by
itution of property proceedin.gs acquires jurisdiction to the exclusion of all other tribunals;
to adjudicate upon the whole issue antl to settle the rights ofthe parties. State ex. rel. Fhzllips u:
Polcar (1977), 50 Clhio St2d 279, sylt.
By its tertns; the rule a.pplies only if the clairns and the parties are the same:
nd case is not or the sauze cause of action, nor between the same parties, the former suit will
nnt prevent the latter'°. State ex ret. ludson, note 2, supra, 33 Ohio St. 3d at 113, following State
ex rel. tYlaz-well v. Schneider (1921), 103 Ohio St 492, 495-496 ("the pendency of another action.
may be successfully pleaded as a defense only when it is clearly made to appear that such
pending action is between the same parties, upon the same cause of actions.").
Thus, the identity of claims requirement can ordinarily be satisfied only if the causes of
n and relief soug,ht in the two cases are "exactly tlle same". .State ex rel, Seller v. Gea^ken
(1995) 72 Ohio St. 3d 115, 117, 1995-Ohio-247. State ex rel Red Head I3rass, Inc. v. Holmes
14
County Caurt rif'Carnnaaji Plens, 80 Ohio St3d 149, 1997-Ohio-143; held that the "rec}uired
identity of claims aad parties must be such that a judgment in tb.e first proceedin;g; once entered
-es-judicatti bar in the second proceeding.
Camplairrt For An C')rigixaf Writ af NIarrdarnus states multiple claims for reli€ef that maY begranted
Respondents argue that the Respondonts claims for viQlations of the Public Nleeting Act
coirtained in paragraplis 15-85 of tlte Conplairtt €or an Original Writ of Mandamus do not state a
claim upon which relief ea€a be granted.
itt order tosustain drsznissat of a complaint ... for fzilure ta statca claitn upon which relief max bc granted, it must appear beyon4i doubtthat the plaintiff can prove no set of facts in suppor-f of the claimthat
ould eruitle the plaintiff to relief. Dae v. Arcchcdivicese of Carrcurrrmta,St3d 491, 20E16-0hio=2625, 849 hI.E.2d 268, ¶ 11. The
1+f tt:te cqmplaiixt must be cottstrued as true: Mczz[tcctzd V. Fvlrt'103 OI7ia $t,3d 463, 2004-Oliio-5717, 816 N.8.2d 1061, ¶zore; the comlila.int's material allegatipras and any reaspztabk
i must be cotishved in the nprurterving
party's favor, Ke••izty v. 7'rar2sarraerica Prerrnurisa Ins. Co. (1995), 72 Ohio
St:3d 415, 418, 650 N.E.2d 861
Ruy, et aL Y. Alfera, Yttrirssek & Merklin, et ttl< (2001) 114 Ohio 5t.3d 3:23, 2007-
3,6(}8, ¶ 14.
Paragraphs 19 tti 32 of tbe Cotn;plaint far an Original Writ of Man-damus assert the
Respondeltts have failed to establish a reasonable znethod to inforcn the publie of the time arkd
place of ret;ular meetings attd time, place and purpose of special sisdetings. Contrary to the
assertions made by respondents, Commissioner Schroeder readily admits the Respondentshave
no rule other than what is contanred in Ohio Statutes (Scltroeder Deposltiorz, pg. 191, Line 18;
attached in pertin.ent part as Ex.hibit C). This claiin states that placing notice of the t'neetings on a
dry erase board in the back of the Respondents' office and in cryptic tertns does not provide the
public reasonable notice as a matter of law and xequests a writ of rnandamus directing the
respondent to post public notices outside of the Respondents' office in the an area operi to the
public.
Paragraphs 33 to 41 of the Complaint for an Original Writ of Mandsmus assea't the
Respondents' practice and procedure of notifying the public of time and pu3pose of meetings 24
15
hours in advance by writing, ou the dry erase board is defective as a matter of larv. This claim
states that writing the subject and request on a revolving basis durint; day and conducting the
meeting 24 li.ours later is inconsistent with its representatiou that its regular meetings tako place
at 14:00 AM on Tuesday, Thursday and Friday, as needed. In fact, the Respondents are
canducting public meetings contiinuoi.usly throughout the day provided it was written on the dry
board 24 hours i:n advan.ce of the actual meeting. The rneeting could take place anytime the
following day dependiiag on when it was written on tlte dry er!ase board. Relators requests a cv rit
of mandamus requiring aU meeting notices to posted at least 24 hours in advance at a set time so
the public and the press will know what is the time and pYacc of regular meetings attd tknt,e, place
and purpose of special meetis.rgs:
Paragaphs 42 to 69 of the Complaint for an C}rigirial Writ of Mandamus assert that
Itqspondezats have conducted meetings without giving the press and interested parties n
required by R,C. 12 i;22T). Moreover„ the clerk has specificaJly denied
requast for stotice coneerning specific type of business that will be discussed as mquired by
121.22(F), Relators also allege that respondents were conctucting public business in private,
aus requiring tho respotrd.onts to ptvvuide the rn.edia 24 hours no'
, provid'ir4g interested parties that have requested notice of all
rcgarding the subje
:ine Act.
the preparation of Resolutions without discussing them publicly. Relators
matter of the reqquest and directing respondents to comply wi
Paragraphs 70 to 85 of the Complaint for an Origina undaimus a;
Respondents conducted secret non-public meetings in preparing the Resolution it addressed on
July 12, 2012. That tihe Prosecutor and Respondesits refused to address the quqstions asked of
arding their power and duties and the clerk f.k.iture to include objectii?ns in the nt:itiutes
required by R.C. 305.10. The claim also asserts that the Prosecutor and Commissioners Love
and Schroeder intentionally excluded Commissioner Jerwers from ttie secret nort-public
discussions. Relators rcquested that a writ of mandainus requirirtt; all meetings discussing public
business be conducted at nteotings open to the public aiitl without excluditYg a Cotnmissioner
opposed to the Resolution.
The above enuinerated facts and summaries demonstrate that Relators have in fact stated
claims sufficient for relief and Respondents request to dismiss should be denied.
16
Conelusioa
ct of the public to know and understand the actions of their elected representatives
'ective operation of a democratic society and is the cornerstone of the
titutional rights of political speech and due process. The practice and
procedures adopted by the Respondents depriving the public of knowing and actively
participating in the political process materially impacts the historical operation of government
committed to the rule of law and devoted to the, idea that ours is a govetnrn.ent of laws, not
individuals. The Relators' Complaint requests this Court to cnter a Writ of Mandatnus
costepelling the Respondents to conduct their activities openly and fully informing the public
when they are going to meet, what is going to be discussed, the fnrnial actions taken and the
deliberaflons preceding those actions and requiring their actions take place in sessions open to
the public. Respondents' motion to dismiss should be denied.
t WebbReg. l^lo. 0012673
"DI' & MOAN, LTD4930 Holland Sylvania RoadSylvania, Ohio 43560Telephone: (419)882-7100
Attorney for Relators
And
aniel T.Ohio Reg. No. 0038555LYDY & MOAN, LTD4930 Holland Sylvania RoadSylvania, Ohio 43560Telephone: (419)882-7100
Attorney for Relators
And
17
Ohio Reg. No. 00070505CUNNGINHAM LAW OFFICE1331 E. Fourth Street, Box 7Ottawa, Ohio 45875Telephone: (419) 523-3396
Attorney for RelatorBuckeye Stave Commpany
CERT'IFICATE OF SERVICE
On this 16`h day of August, 2012, Relators served upon Matthew C. Blickensderfer, Frost
Brown Todd LLC, 3300 GreaYAmerican Tower, 301 East Fourth Street, Cincinnati, Ohio 45202
and mlickensderfer(@fbtlaw:coin; Scott D. Phillips, Frost Brown Todd LLC, 9277 Centre Pointe
Drive, Suite 300, West Chester, Ohio 45069 and spliitlipsObtlaw.com; and Frank J. Reed, Jr.,
Frost Brown Todd LLC, One Columbus, Suite 2300, 10 West Broad Street, Coluinbus, Ohio
43215 and fi-eedi a tbtlaw.com, a copy of the forgoing Relators' Memorandum in Opposition to
Rtspunettts' ]s+lotion tu Distniss via ot=dinatty U.S. First Class Mail, prlstpge prVaid altd by emgil
as noted.
de Hurst Webb (0012673)orney for Relators
18
RE: Public Hearing Regardiril Wiciening
of Putnam County Road 5, North of
Route 224, .Futnam County, Ohio
12
15
John Love, ChaiTravis Jerwers
17
Public meeting before the
Putnam County Ccammissitltkers, taken before me,
Sandra S. Dieringer,
10
'Reporter and Notary Public in and for the State of
Ohio, being held at the Fu-Cnana County Courthouse
Assembly Rooiii; l5t Floor CQurthouse,
on Friday, July 27, 2012, commencinc
approximately 1:05 p.m.
14
C C4MMISSIONERS PRESENT:
19 ALSO PRESENT:
19
20
22
Vincent Schroeder
Ottawa,
Betty Sehroeder, Cle:rkJames Beutlerr Putnam County SheriffTerrence Recker, Putnam County EngineerTroy Rocker, Construction Manager
ed Professional
21
24ST Sandra S. Aiesa.nger
1295 Knoxville Avenue
23
Marysr Ohio 45885(419) 394-7339
Registered Prcifess.ianal Reporters25
REP{TPLT I N GSERVZCE
Exhibit A Relators Memorandum in Opposition to Respondents Motion to Dismiss
Ohio,
000001
2
Friday, July 27, 2012
1:05 P.M.
0 C E E D 1 MG a
COMMISSIONE.R LOVE: Good afternoon,
everyone. The purpose of this hearing today is to
hear testimony pursuant to t7hio Revised Code
Chapter 5558. It is the opinion of the County
osioners, and the County Commissioners have
14.
been so advised by our legal counsel, that the
commissioners need riot comply with R.C. 5355, but
the commis'sioners have previou52y strict
om.pliance
caution and because of the interest in the
the OhioZndemna:ty Erninent pomain
,Law, Chapter 163. However, in the abundance of
operty owners have complained, a majority of the
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25
dually elected County Gommissioners have decided
to attempt to put this issue to rest once and for
all by holding yet another hearing on this issue
pursuant to Revised Code 5553.
I note that prior to this hearing
notice of this hearing was published in the
newspaper of general circulation in his county
Exhibit A Relators Memorandum in Opposition to Respondents Motion to Dismiss 000002
iding a better road for a.gryculture and local
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12
1
19
15
21
tr
With that said, the Putnam County
Engineers recommends the widening of Putnam County
is the detailed surveys and plans of that proposed
project.
Road 5£rom U.S. 224 to Township Road E. Enclosed
Thank you for your cooperatiafl in
this matter.
Respectfully submitted, Terrence R.
ReC.ker, Putnam County Engineer, P.E., P:S
Putnam County i;ngineer.
17
16
1
COMMIS:SIONER JERRrERS: I would like
to make a statementr to be sworn in to rnake a
statement.
(Thereupon, the oath was administered
18 to Commissioner Travis Jerwers:)
19
20 COMMISSIONER JERWERS: Ladies and
Gentlemen of the audience, I am here to talk to
22 you today and to gi
23
24
25
n and for the
public record that, first of all, in the last
two hearings before today I was not notified or
made aware of that a vote was to be taken until
Exhibit A Relators Memorandum in Opposition to Respondents Motion to Dismiss 000003
entered this chamber; and, second, for the public
record, I am not against econom:ic development. I
am for economic deve2opment and I am for job
need to use a little reason and common sense and
recognize and respect the safety and rights of
].andowners, res,pect the rights of farriiers, and
retention and creation; but at the sariti
ights of the small business ccammtznity
10
11
12
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14
that will all be affected by this project in a
profounrl way-
Thank yoou.
3SIONER LOVE: Could we get back
to the engineer's report, please?
MR. mER!RENCE RECKEft: That's the end
of the letter. Where we go from here, i don't...
TsSIbIVER LOVE: ©kay.
7
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21
22
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25
MR. REED: Commissioner Love?
COMMSISSIONERL4VEs Yes, sir.
MR. REED: tyiy name is Frank Reed.
I'm appearing on behalf of the Putnam County
Commissioners. I'm special counsel appointed by
the Putnam County Prnsecutor.And what I would
suggest at this point is that we finish the county
engineer's testimony if he has other opinions to
give in terms of why he believes this road needs
Exhibit A Relators Memorandum in Opposition to Respondents Motion to Dismiss 000004
116
CpMMIS.SIC}NER JERWERS: No.
COMMISSIONER LOUE: Tharik you.
Anyone else?
I have }aefore me a motion, excuse me,
a resolution that I wish to read at this time.
MR.
10
like to object to any p
Before you read that, I'd
pareet resol,ution that
been posted prior "to this m g for the
public to revie+a.
12
COMMISSIONER LC?VE: This is a
proposed resolution at this point authorizing the
widening of County Roaei 5, north of State
ute 224, Putnam Cou
16
27th day of July, 207.2 at the offiee of the Board
4
.yy Ohio. The Board of .
unty Commissioners of Putnam County met the
ith the following members present:
1:8
John
ove, Mr. Vince 9chroeder, and Mr. Travis Jerwers.
Whereas, the Board of County
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25
Commissioners does not need to comply with the
Chapter 5553 or 5555 of the Ohio Revised Code to
take property because the Boasd of County
Commissioners has strictly complied with
Chapter 163 of the Ohio Revised Code;.
Whereas, the Board of County
Commissioners have nevertheless determined that,
Exhibit A Relators Memorandum in Opposition to Respondents Motion to Dismiss 000005
124
here because they fear tha
ten yea
record.
I jus want that for
ER LOVE: Thank you.
ect?
C-OM'P9ISSIOA2ER LOVE:
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14
19
20
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24
25
here today, it can happen there tomorrow, a month,
now.
is happeriing
Ddes anyone else have commentsry
MEt. ELLIS: I do.
resoluta::on, if I heard it
ahead, sir.
. ELLIS: The first comiu.ent I have
is I nzaticed in the resolaxtion or hea
9
in the
ctly, that you hav@
made a determxnation that the atnount being paid to
the homeowners is fair and reas=anable; is that
COMMISSIONER LOVE: Amount o£damage
coziipensation is on an exhilait,, if you want to
recoqnize that.
18
exhibit?
Gs7r
R. ELLIS: Okay, so it's on
COMMISSIONER LOVE: Yes, sir.
MR. ELLIS: When did the Board of
issioners revz.ew that extsibit and approve that
compensation prior to today?
COMMISSIONER LOVE: This has been
3Jrouqtit to us through the engineer's office.
Exhibit A Relators Memorandum in Opposition to Respondents Motion to Dismiss 000006
125
I OC
how much was
fered for house lots, how much was offered
4
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20
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MR. ELLIS; That wasn't my question.
My question is, when did you have a discussion
about the compensation to be paid and when did you
accrue it?
GOMh3ISSIONEIZ I,OVE: I don't recall
when that was, but it was brought down by Troy one
time and it was talked about vhat
R. ELLIS: And what Board meeting
and what minutes should I look at to show that
that discussion took place7
COMMISSIONER LOVE: I don't have
those at hand right now, but I know that was
discussed.
MR. TROY T2ECKE12: The April 9th
appropriation, I would assume -- I mean onee --
all three commissioners signed a contract with
Mannik & Smith to acquire these properties, okay?
31 was acquired fair market value. The other ten
were given to urs in the package fo
appropriation. The engineer's office turned then
back over to the folks who signed the contract
with CQannik & Smith; they, in turn, turned
over to the prosecutor.
Exhibit A Relators Memorandum in Opposition to Respondents Motion to Dismiss
them
000007
126
10
12
14
MR. ELLIS: That wasn't my question
though.
MR. TROY RECKNR: I just wanted to
clarity.
MR. ELLIS: I just wanted to know
when the commissioners discussed at a public
meetingand voted to adopt Exhibit A as the fair
compensation for the homeowners before you
ap:propriated strictly construing and complyin:q
with 163, like you keep saying, when did you do
that?
COMMISSIONER L©VE; I don't have that
date. I don't have that date right in front of
me.
16 didn't f
17 surprise
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; ELLIS: If I represent to you I
in aiiy minutes, would you be
COMMISSIONER LOVE: No, I know it was
discussed. I know it was. It had to be brought
down. It was brought dotdn by Troy when he talked
about all of these things.
MR. ELLIS: j think it might have
been discussed too, but I"ti1 just trying to figure
out when you did it at a public meeting.
Now I've got actually another
Exhibit A Relators Memorandum in Opposition to Respondents Motion to Dismiss 000008
127
2
question.
COMMISSIONER LOVE# Okay.
MR. S: Who prepared the
olution for today?
COMMISSIOI+TER LOVE: Our counsel.
IS: And under what d%rect
71 Did you direct him to do that?
S E': Well, yes,
epresents us. Vie asked them -- they're helping
lfl us throughout this whole prooess, sir.
11 MR. ELLIS: What public meeting did
12 you hav-e that discussed directing your counsel to
13 prepare a resolution for today?
14 COMMISSI0NER SCHRC?EDER: This
15 resolution is a recommendation and it was not
16 discussed. I have never seen that resolution
17 before. I didn't know we was going to...
is MR. ELLIS: I guess that's what I was
19 asking. Had you seen it before?
20 COMMISSIONER SCHROEDER: I had not
21 seen it before, and I didn't know we was going to
22 do one.
23 MR. ELLIS: I'm sorry?
24 COMMISSIONER SCHROEDER: And I didn't
25 know it was required that we do one.
Exhibit A Relators Memorandum in Opposition to Respondents Motion to Dismiss 000009
128
4
5
12
14
15
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20
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you've seen it, Mr. Schroeder?
COMI*MISSIC3NER SCY+ROEDER;
MR. ELLIS: So this is the
Qkay.
rerit t
Yes,
It's my understanding that the notace
for today's meeting was defective because in the
papers it bi
to vote on tha oday even though
st
are two different ti3nes noticed to the publi+
C'oMM15SIONER LbVEs
release in, did we do a release
ct i d rici t do a
THE CLERK: I'll have to look at
The Lima
MISSIONER SCHROEDER: This
advertised in the paper
was
as this. If a repo:cter
wrote a different time, that's not, that's not our
liability. This was advertised at this t:
MR. ELLIS: It was advertise
five o'clock too.
e.
COMMISSIONER SCHROEDER: Pardon me?
MR. ELLIS: I think it was advert
at five too and I'm just sugges ng -
COMMISSIONER SCHROEDER: Not by us.
We're not responsible for the reporters.
COMMISSIONER JERWERS: It was in the
Exhibit A Relators Memorandum in Opposition to Respondents Motion to Dismiss 000010
MR. ELLIS: Well, I ask the following
question then: When did you authorize the road to
be changed from a rural road to a rural con
all the other roads?
When did that occur and under whose authority did
Troy make that desa.g'nation!
Gf7MMISSSONER SCHROE-DEft: That never
was do ne.
IS: That was never done?
IONER SC@tROEDSRs That's
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17
1920
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ridiculous to think that.
MR. ELLIS: It was.
C(7MMISSIONER SCHROED'Ett: Unless
was done for base.
N-tR. ELLIS:
COMMISSIONER SCHROEDtiR: They may
have, other roads have poor base, so they try
MR. ELLIS: Troy, do you
that?
all doing
MR. TROY RECT{ER: We had to change
the classi;.ication of a certain road aPPIY
the CSTP fun€I; County Surface Transportatiori
Program.
MR. ELLIS: And when did you do that?
Exhibit A Relators Memorandum in Opposition to Respondents Motion to Dismiss 000011
136
MR. TROY RECKER: It would have been
4
7
12
14
prior 2004 when we applied for the grant.
5F was originally -- it was a rural main collector
from Pandora all the way to County Road 5F, then
5F to 613, We chanqeet 5f' back to a rural road and
5 and 5F to Pro-Tec ox Towns-h.ip Road E as a inajor
collector. That allowed us- to apply for
for that distance
MR. ELLIS: And as the individual
preparing the g.rants, do yuu recall that you; have
stated t.hat"s a desiqnatcd truck route?
MR. TROY RECKER: No, we just changed
the clasisifi.cation; but not them words. But
portions of, from Pandora all the way to County
Road 5F was already that class%fication. We only
changed the classification from 5F to the north,
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19
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22
23
24
25.
Township Raad E.
M:R. ELLIS: Okay.
COMMISSIONER LOVE:
discussion?
Any other
MS. RHOAD: I have a question.
COMMISSIONER LOVE: Yes, Ma'am.
MS. RHOAD: Cheryl Rhoad.
Today we came and listened to you and
you listened to us. How many of you already had
Exhibit A Relators Memorandum in Opposition to Respondents Motion to Dismiss 000012
7
4
your mind made up you were voting yes, whether
what we said meant anything to you at all or not?
COM'NSISSIONEFt SCHROEDER: Cheryl,
right?
j iY1 this room
NIS. EtHbAD; Yes
CCINSMISSTOIVER SCHROEDER: You've got
to understand there's a lot more input than what`s
HQAD: Oh, I know,
10 asking you.
just
G(}t*1lSISSIONER 5CHROEDER-; I drove itt
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21
22
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25
I viewed it, I hhd nty mind pretty we11 made up.
All this stu£f we he:ard today's been, we've heard
before.
MS. RHfjAD: So why bother then?
Nf'S. HORBTMAN: I'd Just like to
clarify something that was stated. 3'his is the;
from the study that was, or the grant that was
submi.tted, iron highway improvements and where
it's without a dedicated truck route, it
repeatedly throughout this request for funding, it
talks about a dedicated truck route. So, in
fact, --
MR. TROY RECKER; I'm not familiar,
them were not my words. I don't know even what
Exhibit A Relators Memorandum in Opposition to Respondents Motion to Dismiss 000013
140
cruestions?
not, I call for a vote.
EI:I,I6: Excuse me, before youR.
4 call for a vote, T'ei like to saake an objeotion.
COMMISSI LOVE: Okay.
That you have no
12
14
15
16
20
21
22
23
24
25
this meeting to ap.prove that resolution regard=
the decision making process has been tainted
because you've already made a decision prior t
meeting or to enact a resfllution. I objec
authority under y9ur prior resi>lutiott to have this
rhA statements, evidence, or otherwise
presented today; an€i on behalJ of my clients, I
would object on both constituts:onal and statutory
9 ounds that you are not complying h Oh:io law.
COMMZ&SIONER L4VE: Noted.
MR. CUNNII3GHAM: And I'll make the
same objection for Buckeye Stave.
COMMISSIONER LOVE: What he said?
Okay, Noted.
Still call for the vote.
ESetty?
THE CLERK: Okay. Vote, Mr. Jerwers?
COMNIS.SICbIER JERWERS: Resoundly, no.
THE CLERK: Mr. Schroeder?
Exhibit A Relators Memorandum in Opposition to Respondents Motion to Dismiss 000014
14.7.
4
5
COMMISSIONER SCHtttiEDERs Yes.
T:HE CLERK;. Mr. Tove?
COMMZSSIONER LOVE: Yes.
I ask the recorder to transcribe the
proceedi.n
hearings
s, if you , and I close these
oday. Thank you.
LIS: Gan you tlote mlr objection
to the way they acijQurned th,e
r8,eeard, please?
3a
g on the
(Thereupon, the hearinq conciuded
:44 p.m.)
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21
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25
Exhibit A Relators Memorandum in Opposition to Respondents Motion to Dismiss 000015
142
2
6
10
1
12
4
5
16
17
18
19
20
2
22
23
24
25
STATE OF OHIO ) SS: C E R T I F I C A T E
COUNTY OF AUGLAIZE
I, Sandra S. Dier'inger, Registered
Professiona3. Reporter, and Notary Public in an4i
for the State of Ohio, duly commissioned and
qualified, do hereby certify that the within named
witnesses, as indicated, were by me first duly
sworn to testify to the truth in the cause
aforesaid; that the testa,mony then given by them
was by me redueed tti stenographi,c notes in the
presence of attendees; that I did later transcribe
the said stenographic notes; that the foregoing is
a true and correct transcription of the public
hearin:g held on July 27, 2P12;
I further certi,fy that this public
hearing was taken at the time and pi-ace in the
foregoing caption specified and that I am not a
relative, caunsei or attorney of any party oY
otherwise interested in the 6utcome of this
action.
IN WITNESS WHEREOF, I have hereunto set
my hand and affix my seal of office this
day of 207:2:DRAFT COPY
5ancira S. Dieringer, R.P.
and Notary Public in and
fGr the State of Ohio.
y Commission Expires June 20, 2017.
Exhibit A Relators Memorandum in Opposition to Respondents Motion to Dismiss 000016
IN THE SUPREME COURT OF
THE STATE OF OHIO, ex rel., ) CASE NO; 12-1268
LISA STAINBROOKet a9., ) -
F[a.irrtiffs, ) Original Action in Msndarntts
) (Publi(t Records)
v
BQARCI OF PUTNAM COUNTY
ilC3fNERS, et al.,
)
C3t=€ehdarits.
I; Linde Hurst Webb:of perjt.uT, testify, swear, 4nand own personat kriowledge:
ydy & Moan, LT,Dz taPoxx her oath and subject to the porxal€fCirm the Ecttlowitig; Eo be trn€, ba.sed ttpon my tiest reee
I am an attorney, tin[y lieensed to practiee law in the State of Ohio anil represant the
Relators.
2. I received the "courtesy" email from Gary Lammers on July 11, 2012 at 3:5-0s07 P1VI.(A true and accurate copy of that email is at-tachetl to this affidavit).
3. At the meeting on July 12, 2012, at 4:00 PM, there was a resolution pre-typed andprepared for the meetiaag and presented by Gary Larsarners, prosecuting attorney for the.
Putnam County Board of Cammissiozters.
4. During the ineeting of July 12, 20I2, Attorney Daniel Ellis asked the Putnam Cou??tyCommissiorcer;s w1ies•e in their minates is it noted that they had an..y d6scussion ordecision about requesting the Resolution that was pre-typed and presented by
Page 1 of2Exhibit B Relators Memorandum in Opposition to Respondents Motion to Dismiss 000001
r Gary Larumers. Attorney Dauiel Ellis alqp asked the Gormxlissioners whatlhe required vote to pass the Restrlution of Necessity, and also asked the Board and
the Prosecutor what leadl authority did they rely an to u:tilize R.G. 535104. The Boardand Prosecutor Gary Lamrners refused to answer any of those questions posed by NTr.Ellis.
5. On Jutq 27, 22012, there was a meetnrg of the Board of C-otnm.issitinets in the assembly)om at 1:30 PM and the $oartl lia.d a court repcriter present who transcribed th.e
6. Attached to Relator's MetYSorandum itt Opposition to k- opondsni's Matittn to Dtsmrssare pertirteat parts of the record of the hearing held on July 27, 2(}12 beginning at 1:30PxtI: whieh is a true antl accurate e^spy of the reeord prepated by Caus't T`^epotter1Vlydwest Reportin.g Service, and emailed to my office in response to our request for aco,py of the transcrigt.
7. Ort July 27, 2012, at the Putuain County Gomrnissioti.i_Resolution brought into the trzee€ing, this cime brougE
pre-typed and printed.
STATE OF OHIO
^ GOC.tN`i'Y OF LUCAS
here was atzntheir Schroetler,
This Affidavit was acknowledg.ed before me on Au&.,y.st lEz. 2012 by Linde 1-lurst
Webb.
Page2af2Exhibit B Relators Memorandum in Opposition to Respondents Motion to Dismiss 000002
aputeoprpsecutor@bright net" <putmRe: Road 5July 11, 2012 3:50:07 PM BDT
30. Linde Wetib <LWebb@lydyanoan„c,<€[email protected] c6m>
w4brighC.neta
n EINs <bElt an:com>. MaH Gunningham
bb, Mr.fiNs and Mr. Ounn3ngharu,
aPc tSre ev:erkt that the Gommission decides Co conduct a^iearing, a separate Resolution will be tssued tori3cs'rr¢sw, aTida hearing
date yaill k'se scheduled at a future date, at wfiich tinte your clients witl pe free to prauide any evidence artaatimrany tlratxhey
dBem apjiroprtafie.Thank ycku.
ll
tY+e Oounty tck conslder the provisions of Chapter 5553 ofthe ohltr 13euisedCode n order to put the iss+fe to rest, qhee artd for
t12^9V anPllErSV4u a meSSti'€,^ lYitlk br3lSGki.lau aack4ro,r ^c cwupUtB *' 4M•.•"-xr..pv.g- .
^vnak lCntaw that tha Putnam Co4rltVGemft?ls$i€4nei5 W111411eet tomork'r1Ng, auly Yz, zkklt, aL {ne rukktarnwum.y
beginning atA:00 P^rn, to cbnsideY whetherer not to canduct a nearing pursuant to cEnio csev seaer"s office ,code 46`^s3.0R. Thepurpose of the meeting tomorrow, among.otfrer itecns on the posted agenda, ts to cksnsider whetfier' ora natarFpt4ter hearirf$ is necesSpry ftst`publitccrnVepiran^#: and Well^Ye tatividen CoWtty Rpa3# 5.1d,s yau!teE omrk thePutriamBtsakzk,of0sunty Coriimissioriers havx^trfdS€ycarri^€fed with Chalster 163 o#theUhia Reuised Gode. NeuerttadtBSs, theRorhi;
irs the afiekndance cdcautian, and beCYuse irkfierested pr6perty clwners have complained, beiieves 3t is3n the best ir[erest of
e`cutingX(ttoe"ney, Putnam CountyC. Lamme
Exhibit B Relators Memorandum in Opposition to Respondents Motion to Dismiss 000003
1 IN THE COMMON PLEAS CDURT OF PUTNAM COUNTY, 0H1O
2 STATE EX. REL PATRICK BROTHERS,A GENERAL PARTNERSHIP, et al.,
3PLAI_NTIFFS
4-us- Case No. 12 cV 55
5BOARD OF PUTNAM COUNTY
6 COMMISSIONERS
7 PEFENI3ANTS
8 DEPOSITION bF VINCENT T. SCHROEPER, prIIduced,sworn and examined puesuant to Notice between the parties
9 herein on the 9th day of way, 2012, at the hour of 1.17 P.M.in the afternaon of that day, at Cunfli n^ham Law Offices, 1331
10 East Fburth Street, in the city of ottawa, Ccaunty of Potnamand state of oftio, before
i7. LISA WESTRTCK, RPR
12 A Notary Public in and for the State of Ohio,commissi0ned therein.
being duly
13o Rh A ANM
14For the Pl ai n Mr. Matthew Cunningham
15 CkINNINCiHAM LAW OFFICE1331 E. Fourth street
16 Qttawa, oH 45$75
17 Ms. Linde Hurst Webbm;r. Daniel E11is
18 LYDY & MOAN, LTD4930 Holland Sylvania Road
19 Sylvania, OH 43560
20 For the Defendant: Mr. Gary Lammers336 East Main Streetottawa, OH 45875
22 Also present: . Bob Patrick
23 WESTRTCiC REFC3RTINGFtegistered Professional Reparters
24 1$426 Road Mottawa, OH 45875
25 Lisa westrick, RPR (419) 538-6347
Exhibit C Relators Memorandum in Opposition to Respondents Motion to Dismiss 000001
2
4 IT IS HEREBY STIPULATED AND AGREED by and between
5 counsel for the respective parties hereto that th2 deposition
6 of VINCENT SE-HROEt3ER i s being taken by Notice and that Notice
7 to Take Depositian was serued.
8 IT IS FURTHER STIPl1LATED AND AGREED by and between
9 counsel fb'r the respective parties hereto that the deposition
10 of VINCENT SCHRQE[1ER. is being tzken by the Notary Public,
11 Lisa westrick by stenographic tirea.ns; that the parties agree
12 that any requi remet7t as to Rul e 5(D) with respect t.o proof of
13 service and service of copy of depositi ott by oral exami nati bn
14 upon other partie-s is wartved; and thatthe witness wall read
15 the prepar"ed tt^anscript of this deposition, and upon approval
16 will affix his s=ignature to the prepar€d transcription.
17 IT IS HEREBY FURTHE'R STIPItLATED A#VD AGREED that the
18 official capacity, character and qualifications of the notary
19 are waived.
20
21
22
23
2425
Exhibit C Relators Memorandum in Opposition to Respondents Motion to Dismiss 000002
2 r t4 t? E-..X
4 WITMESS:
5 VINCENT T. SCHROEDER
6 Page/Line
7 EY.AMTNA'T'tON BY MR; ELLIS - - -- 4-7
8 EXAMINATZt3N &Y MFt. LAMMERS ° 18fl :9
9 RE-EJCAMIh1ATIflN BY MiZ. ELLIS - 185:9
13 Pt_AIh1TZFF'S;
14
A, B, C, I7, E, F, G, H, I, 3, K, L, M, N, 0, P,
16 Q, R, U, V, Z, AAf BB, CC, DD, EE, PF, G61 HH, II,
17 7.7^,, tGK, LL, MM & NN ---------- --^---- --------- 4:1
20
22
23
24
25
Exhibit C Relators Memorandum in Opposition to Respondents Motion to Dismiss 000003
4
1 (EXhibits A, B, C, D, E, F, G, H, T, J, K, L, M, N,
2 0, P, Q, R, U, V, Z, AA, BB, CC, DD, EE, FF, GG, HH, II, JI,
3 KK, LL, MM& NN MARKED PRIOR TO THE DEPOSITION BEGINNZNG)
4 (1:15 p.m.;
5 VINCENT T. 5CFtRtSEVER,
6 WHO, BEING FIRST DULY S1tiftIRN HEREIN, TESTIFIED AS Ft>i:.LOWS;
7 FXAMTNA"fT0N-Y^
8 Q. iCouid you plea&e state your full name?
9
lf? Q,
before, Vince?
A.
v-incent T. schroeder.
Have you ever had your deposition taken
Dti you understand everything you say is gaing
14 to with recorded by tho court reparter?
15. A. Yes,.
16 Q. i`d ask if you don't hear a question, will you
17 say so, so I can repeat it for yvu7
18 A. okay.
19 Q. If you don't understanda question, just ask
20 me to repfirase it, 4kcay? And you understand you have given
21 an oath to tell the truth and you have to answer the
22 questions fully, accurately, and truthfully as you
23 understand?
24 A. Sure.
25 Q. just like you were sitting i n front of a judge
Exhibit C Relators Memorandum in Opposition to Respondents Motion to Dismiss 000004
19
1 have put ii: in writing that something as follows, the county
2 commissioners will notify the public of their meetings by
3 posting on the board, giving the newspaper notice, putting it
4 on a general bulletin board or anything like that; is there
5 sc}methi ng rovri tteri down that says this is the procedure we' re
6 going to follow?
7 A. Nflt to my knowledge.
8 Q. okfay. Now, is there a rule in writing that
9 say! are you going to notify the public of special
10 meetings?
11 A. well, there's a writtenrule in the sunshi,
12 taw.
13 Q. There is a written rule for both regular and
14 special meetirtgs,, so I'm asking you where's your writing
16
17 that
A. our particular, we go by the statutory code.
Q. t7kay. and, do you have it in writing anywhere
p. Like, do you have a written document to your
is what we are going to do?
,. Not to my knowledge.
20 clerk that says when we are going to have a special meeting,
21 okay, you need to do the following things?
22 A. well, it's in the statutory law.
Q.
2425
okay. what are those things you do then?
p it on the board.
You post it on which board?
A.
Exhibit C Relators Memorandum in Opposition to Respondents Motion to Dismiss 000005
20
1
2 Q.
3 offl ce; is
4 A.
5 Q.
fi A.
7
8
9
Q.
A.
The public board in our office.
pkay. Now the public board is inside your
hat correct?
Yes:
And how do you post it on that board?
we write it on tNte're:
And, what else do you do, anything else?
so you handwrite it on somethin
Yes.
A. No, not as a general rule. 5caMetiartes Betty
call a reporter to tell them that we're having a
bkay. Does she do that for every meeting or
14 just for special meetings?
15 A. she doesn't -- She has no rule_ she stopped
16 doing ?t because no one has ever requested it, aqd just
17 recent7y the sentinel requested th.at she call them, so she
18 would do that now.
19 Q, when you say just recently, what are you
20 talking about, after this lawsuit was filed?
21 A. No, last week.
22 Q. Last week. so, it would be your testimony
23 there wasn't a request from the papers prior to last week to
24 give notice; is that correct?
25 A. That's correct.
Q.
Exhibit C Relators Memorandum in Opposition to Respondents Motion to Dismiss 000006
21
2 A.
That is what you would say?
ves.
3 Q. if i get two reporters who say that is not
4 true, would you say --
5 They're wrong.
6 Q, They're wrong. That is what I want to know.
7 okay. Naw, 5o, you say that you, that you post your notice
8 where the public can see it, and that is in the
9 commi ss i aner' s office?
14
office?
A.
Q,
A.
Q.
Yes.
What is the hours for the eommis.sioner's
8:30 to 4c30 Monday th.rough Friday.
okay. NOW, how would the public know that is
15 where the notice is ptrblished?
16 A. They have to inquire.
17 Q. 5o you don' t have any peri odi c rule that gcaes
18 out in the paper that says soroeth-ing to the effect that
19 notices for our meetings are posted in our office if you wartt
20 to know?
21 A. ato, that's not a requir
22 Q. You don't have that, correct?
23 A. Yes, we don't.
24 Q. so, now, where is the board within the oaffice?
25 A. if you enter the office, it would be about 20
Exhibit C Relators Memorandum in Opposition to Respondents Motion to Dismiss 000007
1 A. You mean, all of the little details?
2 Q. Yeah, you are going to enact 50 resolutiotns,
3 how does the public know that?
4 A. I don't think that is required to be posted
5 under the suns.hine Law.
6 Q. That was not my question. My question was how
7 does the public know that?
8 A. Tl1ey have to i nqui re.
9 Q. so they wouldn't know that unless thiay
10 i nqui red?
11 A. Right. Reporters inquire.
12 Q. qpd, how would a -- well, we will go to that
13 in a tninute. so, now, there isnra other place but in the
14 office where it's posted; is that right?
15
17
18
it?
A.
A.
That's right.
And that is changed du:r9ng the day also, isn't
Not for that day, future meetings are added
19 during the day, but the 24 hour sunshine requirement has to
20 be met.
21 Q. And is that for all meetings?
22 A. Yeah.
23 Q. so for all meetings, it's your understanding
24 it has to be posted at least 24 hours ahead of time; is that
25 right?
Exhibit C Relators Memorandum in Opposition to Respondents Motion to Dismiss 000008
1 A. Yeah.
2 Q. Ncsw, how soon are the minutes available to the
3 public after a meeting?
4 Z'm not sure when Betty posts them online, but
5 if they ask for them, as soon as they are approved, they are
6 available.
7 Q. so by the next meeting, as z understand your
8 testimony, the minutes would be prepared?
9 A. ves.
() Q. They would be approved?
1 A. Yes.
2 Q. And then they are available to the public?
,3 A. Ye5.
4 Q. And at some point after that they are posted
15 onli ne?
16 A. Yes
17 Q. And do all of the minutes get posted online?
A. i don't know.
Q. okay.
20 A. Betty does that stuff.
21 Q. okay. No+rr, how about for resolutions, how does
22 a resolution occur?
23 A. Betty types them up and we study them, and if
24 we are for it, we vote on them.
25 Q. Now, how does t3etty know what to type up?
Exhibit C Relators Memorandum in Opposition to Respondents Motion to Dismiss 000009
36
1 Q. rarid when they add to it after she's printed,
2 how does that work?
3 A. You go in there anti you write something on the
4 board but it's not for that day, it's for some future date,
5 becatxse the 24 hour ret}uireme-nt of the sun-shine t_aw.
6 Q. so if you went in to add something, you would
7 add it for a couple days in the future?
8 A. sure. tf I talk to Totn patriekand he wants
9 to come in and talk to us, a time for them and
10 cfieck the board and if there is no conflict I will add to it.
11 Q. t4csw dtes the public know What the purpose of a
12 special meeting is?
13 A. i don't know, i dun't know what you mean by
14 that.
15 Q. Well, do you notice special ttteetings?
16 A. we very seldom have -- a don't know what you
17 mean by special meeting. we hardly ever have that. Do you
18 mean when Tom ratrick came in to talk, that is a special
19 meeting?
Q. I am asking what your understanding of a
21 special meeting is as a commissioner of the board?
22 A. You know, we never have them.
23 Q. You don't have special meetings?
24 A. very seldom. They are meetings that we
25 conduct in public. i don't know what you mean by special,
Exhibit C Relators Memorandum in Opposition to Respondents Motion to Dismiss 000010
39
1 A. From the county CoMmissiOtlers Association of
2 oitio.
3 Q. okay. And where are they located?
4 A. columbus, ohio.
S Q. NOW, do you understand if you ar'e c}oing to
6 have a special meeting you have to give at least 24 hours
7 notice of a special meeting?
8 A. we. we don't rea.lly have a special meeting.
91 have never heard that in our office, specia7 m.eeting. we
10 have the meetings on Tuesdays, 'rhursdays, artd Friday
11 mornings, those aren't special, tirey are regular aperr
12 meeti rtgs.
Q. You don't have meetings every friday morning,
14 do you?
15 A. No.
16 Q. so those aren't normally scheduled meetings,
17 those are only scheduled if you have something coming up that
18 is not taken care of on Thursday?
19 A. No, we normally dn:it on Frida.y too.
20 Q. where is that noted anywhere in anything that
21 you published to the public?
22 A. on that white board where things are
23 published.
24 Q. They are not published until the day you are
25 going to have a meeting?
Exhibit C Relators Memorandum in Opposition to Respondents Motion to Dismiss 000011
That would be the special meeting1 Q. All right.
2 thing, you have to post that 24 hours.
3 A. Do you call this a special meeting, Jeff
4 Giesige coming in to talk to us about a ditch?
5 Q_ I think it depends on when you post it. Tf
6 you posted it the week before i wouldsay it is not a special
7 rneeting?
A. That has nothing to do with it. The
9 requiremen has to be posted 24 hours ahead of time,
10 not the week be'Fore, that doesn't make it special, you are
11 just giving it that name, it's not a special meeting, it's a
12 regular meeting z don't know where you get that word fr
13 must be sometfiincj else or somethirig.
14 q. Well, do you understand the statute requires
15 you to post time and place of your regular meetings?
16 Yes.
17 Q. And your time and place is Tuesdays and
18 Thursdays at 10 and you are saying now sometimes Friday
19 apparently?
20 A. Yes.
21 Q. where is that written anywhere?
22 A.
23 infinity.
it's not written, it's been that way nce
24 Q. zf i move into Putnam County tomorrow, how
2S would I know that?
Exhibit C Relators Memorandum in Opposition to Respondents Motion to Dismiss 000012
52
1 A. call the office andJor come up.
2 Q. And somekaody would say every Tuesday and
3 Thursday we are going to have a regular meeting?
4 A.. Yeah.
5 Q. 00 yau understand that if you are going to
have a meeting and discuss something that isn't on your
agenda for a regular meeting, you have to give 24 htaurs
notice?
Sure.:
And dQ you understand you got to state th-e
11 purpusu
12
13 Q.
mseti ng as well as give 24 hour ttidti ee'?
NR.
Do you understand that under the statuut,e if
ive at least 2414 you don't state the purpose, the place, and
15
16
17
hewrs notice yGu can't have the meeting?
A.
stand a
sure.
Yau do understand that?
say that again.
sure. The statute defines -- what do you
egular meeting is?
A meeting that is posted 24 hours.
Do you understand that is a definition of a
it's a regular meeting.
That's what i'm trying to find out. so
Exhibit C Relators Memorandum in Opposition to Respondents Motion to Dismiss 000013
53
your understanding anything posted 24 hours in advance is a
regular meeting?
e. That is the requirement, it has to be
4 posted 24 hours.
5 Q. Do you understand that is the requirement for
6 a special meetinq?
7 A. it's a ree(uirement for a regular meeting.
Q. Du y,^.u understand i t' s not a requirement for a
regular meeting?
a requirement, you got to post it 24
11 hours. You call it a special; I call.it a regular. i don't
12 know where you get that word from.
13 Q. it's in the statute, that's where I get the
14 word from, okay. Do you understand th-at? Maybe you don't,
15 that's okay.
A. i don't understand that.
17 Q. okay. Nrxbody has ever defined to you what a
18 regular meeting is versus what a special meeting is7
19 A. Yes.
20 Q. what is your understanding of a regular
21 meeting then?
22 A. A meeting that is posted 24 hours.
23 Q. what is your understanding of a special
24 meeting?
25 A. we don't have special meetings.
Exhibit C Relators Memorandum in Opposition to Respondents Motion to Dismiss 000014
54
1 Q. w#tat is your understanding of a emergency
2 meeting?
3 A. Something that you have to do where it isn't
4 pasted for 24 hours,
5 Q. How do you determine you are having an
6 emergency rrteeting?
7 A. we have to make that determination:
9
10
13
meeti ngs?
Q. Have you ever had an emergency meet'ing"?
A. Not to my knowl edge.
Q. so if I understand your testimGny today, yog
have never had a special meeting, they have all been regrJlar
Yeah
14 Q. Yes?
15 A. Yes.
Q. NQw, on your public meeting on this calendar
17 here, dcses it begin with agenda?
18 A. Y£s.
19 Q. okay. so, on the 23rd where it says agenda;,
20 that's where you are going to have a meeting?
21 A. Yes.
22 Q. That is your regular meeting?
23 A. Yep.
24 Q. what is all of this stuff ahead of it?
25 A. if the prosecutor wants to come in and talk to
Exhibit C Relators Memorandum in Opposition to Respondents Motion to Dismiss 000015
83
1 attorney will search for it. mow, let me show you what has
2 bean marked as Exhibit A, okay. Arrd you see that these are
3 the minutes for Thursday, February 9th?
4 A. Yes.
5 Q. And 'if you go to the second page it says
6 di:scussicxn nates ferr Friday February 10, 2010; what does that
7 mean?
okay. Below that, some discussions th4tg A .
9 occurred from 9 to 11 a.m. we had ameeting here with Tam
14
patrick, that i s the meeting we talked about.
Q. Right. That is, that says on there that the
discussion was i=or Friday, but it's on the 7'tiursday February
gth minutes, oka-y. so these minutes were approved Thursday?
A. t>ao, these are minutes from Thursday, February
9th. was that a Thursday?
yes, it was.
trn February 10th apparently w-as the day that
Andy atad Paul and Tom and Terry and Troy came down ahd we had
21
a meeting:
Q.
A.
okay.
And at 11:10 you know, a few other things
22 occurred, but these are the minutes.
23 Q. These aren't the minutes for the February 10th
24 meeting, those are discussion notes for Friday, which I
25 assume is like the agenda for tomorrow?
Exhibit C Relators Memorandum in Opposition to Respondents Motion to Dismiss 000016
84
1 A. No, these are not the minutes, but these are
2 on the minutes.
3 Q. For the 9th?
4 A. veah.
5 Q. in other words, we have minutes for the 9th?
6 A. And 10th.
7 Q. well, it doesn't say 10th. it says discussion
for the 10th, which i assume means, youcome in the
thing you do is approve the minutes?
10 A.
Q.
Right.
okay. so you approve the mi nutes, and then
12 the discussion
13 A. Probably what happened, we didn't haue an
14 agenda on Friday, so on tha fo'Ilowing Tuesday we approved
15 these minutes.
1.6 Q. okay. so what does that meari?
17 iust what g said.
well, when you have a meeting an Friday, do
19 you approve he minutes from the prior day before you have
20 the day?
21 A. on the agenda is when we approve minutes.
22 Q. okay. so you are saying these probably were
23 approved the following Tuesday?
14 A. Yes.
25 Q. And these discussion notes for Friday are
Exhibit C Relators Memorandum in Opposition to Respondents Motion to Dismiss 000017
Yeah, we have an agenda at 10 a.m., and the
2 nutes from that agenda, that is what thes.e are. Now, if we
3 have minutes during a day like the day we met w-ith Andy
4 Borgelt and TOM Patrick and those guys, there would be a
5 dttcument in the computer on minutes where the secretary took
6 the minutes.
7 Q- Do you print them out, approve them, put them
8 in your journal?
9 if you reztuest it. They are public. it's not
necessary to putthem on the Enternet.
11. Q. You have therr in your j-ournal; do you have
12 them in any minute journal?
15 A. No, I think the minutes of the age•nda are in
14 the journal. if you are interested in those, you would see
15 on here the discussion notes. You can request them and then
16 they would go to a different
17
source to get them.
Q. I am not sure 1 quite understand that. z have
to break for a minute heere. we will cotne 6ack and talk about
it, okay. if you wouldn't mind, i need to call the Court.
(SHORT BREAK TAKEN)
i. think we were talking about before the break
22 your interpretation of what the minutes were representing.
23 Because it says the minutes for February 9, 2012?
24 A. Yeah, I don't know.
25 Q. And they're not signed?
Exhibit C Relators Memorandum in Opposition to Respondents Motion to Dismiss 000018
104
A. i don't know.
2 Q. i"m sorry?
3 A. i don't think so.
4 0. so that wouldn't be in the computer?
5 A. it may be.
6 Q, You don't know?
7 A. No.
g Q. I may have to request that.
9 A. yes. it may be just questions regarding the
10 court system.
this would be the minut..es thenI
Possibly. You know, i don't critique all of
that..
14 Q. Gkay, 5ut, I guess z am trying t© draw the
15 d°istinctian between minutes for Thursday and discuss°i,on nc5tes
16 for Friday; what's the distinction you make?
17 q., Ydu're saying that those discussion not.esn the
18 minutes of thcrse discussions have to be in the minutes.
1-9 Q. i am not saying anything, i am aski ng you what
20 your distinction between discussion notes €or Friday and
21 minutes for Thursday?
22 A. The discussion notes, if there are minutes
23 taken, would be in those discussions in the computer behind
24 our desk taken by a secretary. The minutes of the agendas
25 are these, and they include thhe fact that there are
Exhibit C Relators Memorandum in Opposition to Respondents Motion to Dismiss 000019
105
1 discussions held with different people.
2 Q. When you say minutes of agenda, when you are
3 having your regular meeting is what you mean, these are the
4 minutes of it?
5 A. Yeah, sure.
6 Q. Then what's this minute, when it says
7 discussion notes,what meeting are you having there?
8 A. 1 aske. Teresa to come down and talk to
9 about a report she put out for money she received for fines,
12
13
Q. Did you n:otify the newspaper you were going to
where they went, I wanted to get a better handle on it.
have that meetin
an information meeting for me.
,14 Q. Did yau notify the public?
ls A. i don't know if it was on the board or not.
16 Q. okay.
17 A. Yr:su know, i was reading the report, so I asked
18 her to come down, I had s+pme questions.
19 Q. Right.
20 A. Naw, I'll see if the other commissioners were
21 present, yeah, they may be in there. Did I notify the pu6lic?
22 Q. Pardon me?
2324 know.
25
Did i notify the public, i don't know, I don't
Did you put it on your --
Exhibit C Relators Memorandum in Opposition to Respondents Motion to Dismiss 000020
176
A. i believe that is how the Sunshine t_avr says
2 it.
3 Q. Have you looked at the sunshine t_aw?
4 A. Not recently, but that is the way I recall it.
5 Q. it would be your testimony you went in at
6 and came out at 8:50?
7 A. ves.
Q. And you clo not state that anyrthing occurred in
he executive session; is that correct?
1€? A. veah.
11 Q. Do you note that it also says that you are
12 holding a special meeting in the assembly room
13 A. That is the meeting you spoke of earlier with
14 the people on Rpad 5 for the appropriations.
15 Q. 7hat is where you appropriateti everything,
16 correct?
Yes. 1 guess earlier when you spoke about a
special meeting, the definition for a special meetitng, and
19 that wvpld follow it.
20 Q. vou here, though, state you are havirig a
21 special meeting regarding appropriations for Road 5; do you
22 see that?
23 A. where is that?
24 Q. under 11:40 time frame, it says regarding the
25 appropriations for Road 5?
Exhibit C Relators Memorandum in Opposition to Respondents Motion to Dismiss 000021
182
1 A. I don't know, I never check it.
2 Q. okay. Now during your testimpny earlier,
3 there was some, I guess, difficulty in establishing clarity
4 as to various exhibits as it relates that were listed mayhe
5 as minutes, and then i think you may have made a statement
6 that they are ag^endas, and there was sQme question in
7 d.istinguishing between the notes or the minutes andlor these
8 agertdas. Can yau clarify for the record a little more
9 clearly what your interpretation is between the exhibits that
we referenced that have taeen incli^cated as minutes, such as
say Exhibit KK, which i s the minutes for the Thursdi April
2012 cammissicrner's meeting, arrd then there is notations
that there are d-iscussion notes. Are those contained
14 therein, are those part of the minutes, are they not part of
15 the minutes? 1
16 A. Actually, the way we do this is Betty types up
17 an agenda, and she [ias our names on it, a»zt just during the
18- agenda we say vote on these, and we go through here and we
19 vote on the different items of the agenda, and she notes how
20 wQ vote, and after she does it, they are the minutes. she
21 retypes it as far as our answers, and then the agenda becomes
22 the minutes. And the discussion notes through the day,
23 someone may come in and we discuss something, and somebody
24 will go back there and make notations of the topic that we
25 discuss. and if it is a meeting that the public is
Exhibit C Relators Memorandum in Opposition to Respondents Motion to Dismiss 000022
1 th's total roject he will put in around 500 to 600,000.^ pIn
2 Q. And the rest will be paid by grants?
3 A. ves.
4 MR. ELLIS: okay. Thank you. You want to
5 tell him about signature?
6 MR. LAMMERS; vince, now that we are
7 finished with your dtpt3sition today, Lisa will prepare a
8 transtript, you have the option of reviewing that transcript
9 for accuracy and so forth, or if you choose you can waive
10 that or agree that Lisa will 1ae transeribin;g it in a correct
11 and acturate fash'ion. My question to you, do you wish to
12 waive signature or reserve the right to review tha transcript
13 prior to signing it and approving it?
14 wITNE'sSC DO you have any recommendatit
15 MR. LAMMERS: It is totally up tO yOu.
16 am not going to tell yau one way or tlie other, it's your
17 decision.
19
20
21
2223
24
25
wITNE55: I guess I will check it out.
(This deposition concluded at 5:55 p.m.)
vincent Schroeder Date
Exhibit C Relators Memorandum in Opposition to Respondents Motion to Dismiss 000023
188
1 CERTIFICA'i'E OF l3FPCtSIT1UiEf
2 STATE OF OHIO )) ss:)3 COUNTY OF PUTNAM
4 I, t-isa westrick, a Notary Public in and for the state
S of t3h'i o, s'peci fi call y within the County of Putnam being duly
6 commissioned therein, do certify that the within named
7 wit;ness, one VINCENT SCHHR4ERER, was by ftie first duly sworn
testify to the truth, th-e whole truth ano nothing but the
ruth in the cause aforesaid; that the testimony then given
byhim was by me reduced to stenographic notes in the
11 presence of said witness; that I did later transcribe the
12 said stenographic notes; that the foregoing is a true and
13 correct transcription of his tes-timony as given an the 9th
14 day of May, , 2012 ;
i further certify that this deposition was taken at the
time and place i n the foregoing caption specified;
I do further certify that i.am not a relative, counsel
or attorney of either party or otherwise interested in the
19 outcome of this acti on.
20 IN 4UITNESS WHEREOF, I have h`ereunto set my hand and
21 affix my seal of office this 21st day of May, 2012.
22Li sa westri clc
23My commission expires: 5-22-17
24
25
Exhibit C Relators Memorandum in Opposition to Respondents Motion to Dismiss 000024
1 rQRREC"rSO(d SWlEEI'
2 Page [_1ne No.
3
4
6 ^ -
7
8 _ -
20212223
24
25 vincent schroeder Date
Exhibit C Relators Memorandum in Opposition to Respondents Motion to Dismiss 000025
FAX NO. :4195^86211 V
337
1In this tvtal project, he will put in around 500 to 6:04,000,
2 Q. And the rest will be paid by grants?
3 A. Yes.
4
S tell himabout s'ig"at!
7 finished:: with ypur depositiontoday, Lisa will prepare a
tnscript, you have the optian of reviewing that trn.nS1-ript
9 for accuracy and so forth, or if you choose You can Waive
10 that or agree that Lisa will b-e transcribing it in a r-orrect
accurate fas'hion. My question to yQus do yau wish tt
reserue the right to review the transcriptive signature Crr
p;rior to signing it and approving it?
14
16 am not goi n
17 decision.
20
21
2
24
25
ELLIS: o(Eay, YYtaCilf you. You want tE1
MP. LAtwMVs: It is tntaaly Up to pots.
W51'P1t 5S: P.o you have any recoMmt
you one way or the otMtr, it's your
WITNESS: I guess I wi1l check it out.
(This deposition concluded at 5:55 p.m.)
Exhibit C Relators Memorandum in Opposition to Respondents Motion to Dismiss 000026
FtM Ti
Page Line No.
5
6
7
i:1 ____,_
13;
14 _ __ __
19
20
21
22
23
24
14;
C;3RRECT]CON SHEET
3un.
vincent Schroeder Date
Exhibit C Relators Memorandum in Opposition to Respondents Motion to Dismiss 000027