orignal v complaint, case no: cv 00055 and the appropriation actions, case nos. 12 cv 0073, 12 cv...

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 otìgirtal 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 jurìsdietion 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 jutìsc}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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21

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24

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


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

18

20

21

22

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24

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


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,


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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22

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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.


125

I OC

how much was

fered for house lots, how much was offered

4

15

20

21

22

23

24

25

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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25

; 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


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.


128

4

5

12

14

15

17

19

20

21

22

23

24

25

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


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?


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,

15

16

17

18

19

20

21

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


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

12

14

17

19

20

21

22

23

24

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


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?


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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20

21

22

23

24

25


142

2

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10

1

12

4

5

16

17

18

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20

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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.


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


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


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


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.


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.


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


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?


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?


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,


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?


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?


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


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.


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


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?


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


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?


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


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 --


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?


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


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


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


1 rQRREC"rSO(d SWlEEI'

2 Page [_1ne No.

3

4

6 ^ -

7

8 _ -

20212223

24

25 vincent schroeder Date


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.)


FtM Ti

Page Line No.

5

6

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13;

14 _ __ __

19

20

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C;3RRECT]CON SHEET

3un.

vincent Schroeder Date


orignal v complaint, case no: cv 00055 and the appropriation actions, case nos. 12 cv 0073, 12 cv...

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