Santoli v. Village of Walton Hills et al
Filing
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Opinion and Order. Defendants' Motion for Partial Summary Judgment on Claims asserted by Plaintiff Gary Rhines (Related doc # 28 ) is granted. Judge Christopher A. Boyko on 3/18/2014. (H,CM)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
MARIE SANTOLI, ET AL.,
Plaintiff,
Vs.
VILLAGE OF WALTON HILLS,
ET AL.,
Defendant.
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CASE NO. 1:12CV1022
JUDGE CHRISTOPHER A. BOYKO
OPINION AND ORDER
CHRISTOPHER A. BOYKO, J:
This matter is before the Court on Defendants Kevin Hurst, Sharon Szczepanski, Kenn
Thellmann and Village of Walton Hills’ Motion for Partial Summary Judgment on Claims
asserted by Gary Rhines (ECF # 28). For the following reasons, the Court grants Defendants’
Motion and dismisses Rhines’ claims. Because the Court grants summary judgment for
Defendant, no Reply brief is needed.
Plaintiffs’ Second Amended Complaint (“SAC”) alleges three claims by Gary Rhines
against Defendants Village of Walton Hills and Mayor Kevin Hurst for Public Records
Production, Public Records Destruction and Defamation. Rhines’ factual allegations against
the above Defendants are found in paragraphs 50-53 of Plaintiffs’ SAC and read as follows:
50. Throughout this time frame, Plaintiff Rhines, supported Plaintiff Santoli’s
efforts by making multiple public records requests in an attempt to retrieve
public records related to Ms. Santoli’s and his own concerns about the
activities of Walton Hills public officials.
51. Plaintiff Rhines hand delivered all the public records requests he made to
Village Hall.
52. Defendant Village of Walton Hills responded to some but not all of
Plaintiff Rhines public records requests.
53. On March 14, 2012, Defendant Kevin Hurst stated in a memo to Council
President Linville about Plaintiff Rhines that “I have no choice but to followup with this ongoing issue with possible legal prosecution to try and stop this
on going [sic] distraction to the operation of our villages [sic] everyday single
day [sic]. This must come to a stop sooner than latter [sic].”
According to Defendants, Plaintiff’s claims fail for several reasons. First, Plaintiff’s
Public Records claim fails because Ohio Revised Code Section 149.43(C)(1) requires a party
seeking public records first petition for a Writ of Mandamus which Plaintiff failed to do.
Second, Plaintiff’s Public Records Production claim fails because all requests were, in fact,
addressed.
Defendants further contend Plaintiff’s Public Records Destruction claim fails because
the documents destroyed - i.e the Mayor’s personal calendar and a personal letter of
Defendant Szczepanski - were not public records. Furthermore, no disciplinary records in
Defendant Thellmann’s personnel file were ever destroyed.
Lastly, Plaintiff’s Defamation claim fails because the alleged defamatory statements
were not false and Defendants are immune under Ohio Revised Code Section 2744.
Plaintiff responds that Defendants failed to produce the requested records but states he
intends to file a motion to amend to include a Petition for Writ of Mandamus.
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LAW AND ANALYSIS
Standard of Review
“The court shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” See
Fed. R. Civ. P. 56(a). The burden is on the moving party to conclusively show no genuine
issue of material fact exists, Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Lansing
Dairy, Inc. v. Espy, 39 F.3d 1339, 1347 (6th Cir. 1994); and the court must view the facts and
all inferences in the light most favorable to the nonmoving party, Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Once the movant presents evidence to meet
its burden, the nonmoving party may not rest on its pleadings, but must come forward with
some significant probative evidence to support its claim. Celotex, 477 U.S. at 324; Lansing
Dairy, 39 F.3d at 1347. This Court does not have the responsibility to search the record sua
sponte for genuine issues of material fact. Betkerur v. Aultman Hosp. Ass’n., 78 F.3d 1079,
1087 (6th Cir. 1996); Guarino v. Brookfield Township Trs., 980 F.2d 399, 404-06 (6th Cir.
1992). The burden falls upon the nonmoving party to “designate specific facts or evidence in
dispute,” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986); and if the nonmoving
party fails to make the necessary showing on an element upon which it has the burden of
proof, the moving party is entitled to summary judgment. Celotex, 477 U.S. at 323. Whether
summary judgment is appropriate depends upon “whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so one-sided that one party must
prevail as a matter of law.” Amway Distribs. Benefits Ass’n v. Northfield Ins. Co., 323 F.3d
386, 390 (6th Cir. 2003) (quoting Anderson, 477 U.S. at 251-52).
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Production of Documents Under O.R.C. § 149.43
Plaintiff seeks full compliance and production with records he requested from June
2011 through March 2012. O.R.C. § 149.43 Ohio’s Public Records Act codifies the
“fundamental policy of promoting open government, not restricting it.” State ex rel. The
Miami Student v. Miami Univ., 79 Ohio St.3d 168, 171, 680 N.E.2d 956 (1997). “Under the
Act, any record kept by a governmental unit must be made available for inspection by the
general public, unless specifically exempted or prohibited from release by state or federal
law.” Smith v. City of Dayton, Ohio 68 F.Supp.2d 911, 916 (S.D.Ohio,1999). “Consistent
with this policy, Ohio courts construe public records law liberally to favor broad access and
resolve any doubt in favor of disclosure of public records.” State ex rel. Perrea v. Cincinnati
Pub. Schools, 123 Ohio St.3d 410 (Ohio 2009).
O.R.C. § 149.43 establishes that:
(C)(1) If a person allegedly is aggrieved by the failure of a public office or the
person responsible for public records to promptly prepare a public record and
to make it available to the person for inspection in accordance with division
(B) of this section or by any other failure of a public office or the person
responsible for public records to comply with an obligation in accordance with
division (B) of this section, the person allegedly aggrieved may commence a
mandamus action to obtain a judgment that orders the public office or the
person responsible for the public record to comply with division (B) of this
section, that awards court costs and reasonable attorney's fees to the person
that instituted the mandamus action, and, if applicable, that includes an order
fixing statutory damages under division (C)(1) of this section. The mandamus
action may be commenced in the court of common pleas of the county in
which division (B) of this section allegedly was not complied with, in the
supreme court pursuant to its original jurisdiction under Section 2 of Article
IV, Ohio Constitution, or in the court of appeals for the appellate district in
which division (B) of this section allegedly was not complied with pursuant to
its original jurisdiction under Section 3 of Article IV, Ohio Constitution.
“Mandamus will lie and is indeed the appropriate remedy to compel a public office to disclose
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records.” Smith, at 916. Plaintiff does not dispute that his remedy against Defendants to
compel them to produce the desired public records must come via a Petition for Writ of
Mandamus. Therefore, Defendants are entitled to summary judgment on Plaintiff’s Public
Records Production claim under Ohio law because Plaintiff has not sought the records
through such a petition.
Public Record Destruction
Mayor Hurst’s appointment calendar
Plaintiff’s Public Record Destruction claim alleges that on July 15, 2011, Mayor Hurst
represented to Plaintiff that Hurst’s appointment calendar, requested by Plaintiff in a Public
Records request, was destroyed. Defendants cite to Hurst’s declaration that he did not destroy
his appointment calendar regarding official business; rather, he disposed of his personal
appointment calendar. According to Defendant, no one in the office had access to the
Mayor’s personal appointment calendar. Defendants cite to International Union, United
Auto., Aerospace & Agricultural Implement Workers of America v. Voinovich, 100 Ohio
App.3d 372, 376 (10th Dist 1995), wherein the Court held the Governor’s personal
appointment book was not a public record subject to production under the Public Records
Act. Plaintiff does not dispute this and offers no argument challenging Hurst’s declaration.
Hurst further represents that he did provide his official appointment calendar to Plaintiff.
Therefore, on the authority of International Union and the unrefuted declaration of Hurst, the
Court grants summary judgment for Defendants on Plaintiff’s claim for Public Record
Destruction as it relates to Hurst’s personal appointment calendar.
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The Szczepanski letter
According to Plaintiff’s SAC, on August 21, 2011, Plaintiff requested via Public
Records Request, a letter from Sharon Szczepanski regarding Plaintiffs Rhines and Santoli.
Rhines followed up with his request for the letter on September 14, 2011. The August 21,
2011 request by Rhines reads:
letter from Sharon Szczepanski regarding Chief Gary Rhines and Marie
Santoli concerning CBA and/or Union to where as it was stated some or all
dispatchers did not wish to join the Union/CBA. Since this letter was shown to
all of council and was written in the communications center/police department,
this document is now "Public Record.'
That same day Hurst responded that the letter was not retained. Defendants argue
that the letter was a personal note that does not qualify as a public record. In his declaration
at paragraph 5, Hurst states, “
Mr. Rhines made a request dated August 21,2011, for a document that Sharon
Szczepanski read out-loud to an executive session of the VIllage of Walton
Hills' Council. That document was not retained by any public official. We have
always considered it a personal note that Ms. Szczepanski used as a primer for
her speech made during the executive session and was never considered a
public record.
Plaintiff argues in his Opposition brief that if the request is denied, the requester must
be provided an explanation why the request was denied. According to Plaintiff, Hurst
provided no exception to justify non-production of the public record. However, Hurst
declares he provided a response to Rhines in writing on September 14, 2011, wherein he
informed Rhines that the letter was read in executive session and was not available to anyone
not present at the meeting. Hurst attached the September 14, 2011 letter to his Motion for
Summary Judgment as an exhibit.
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Ohio Revised Code Section 149.351 prohibits the destruction of public records except
as provided by law. It reads in pertinent part:
(A) All records are the property of the public office concerned and shall not be
removed, destroyed, mutilated, transferred, or otherwise damaged or disposed
of, in whole or in part, except as provided by law or under the rules adopted by
the records commissions provided for under sections 149.38 to 149.42 of the
Revised Code or under the records programs established by the boards of
trustees of state-supported institutions of higher education under section
149.33 of the Revised Code. Those records shall be delivered by outgoing
officials and employees to their successors and shall not be otherwise
removed, destroyed, mutilated, or transferred unlawfully.
O.R.C. § 149.011 defines a public record as:
(G) “Records” includes any document, device, or item, regardless of physical
form or characteristic, including an electronic record as defined in section
1306.01 of the Revised Code, created or received by or coming under the
jurisdiction of any public office of the state or its political subdivisions, which
serves to document the organization, functions, policies, decisions, procedures,
operations, or other activities of the office.
In Kish v. Akron, 109 Ohio St.3d 162, 163 (Ohio,2006), the Ohio Supreme Court
interpreted the terms “record” and “violation” found in O.R.C. § 149.351 and § 149.011 as
follows:
We hold that “record,” as used in R.C. 149.351 and defined in R.C. 149.011,
may be a single document within a larger file of documents as well as a
compilation of documents, and can be any document, regardless of physical
form or characteristic, whether in draft, compiled, raw, or refined form, that is
created or received or used by a public office or official in the organization,
functions, policies, decisions, procedures, operations, or other activities of the
office. Having reached that conclusion, we further hold that “violation,” as that
term is used in R.C. 149.351(B), means any attempted or actual removal,
mutilation, destruction, or transfer of or damage to a public record that is not
permitted by law.
Before the Court is the unrefuted declaration of Hurst that the Szczepanski letter was a
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personal note read into an Executive Session. Under the International Union case, personal
notes are not Public Records. See International Union 100 Ohio App.3d at 376. Therefore,
according to Defendants, it is not a public record and need not be preserved or produced. In
response, Plaintiff points the Court to no evidence challenging Defendants’ evidence that the
letter was a public record. Plaintiff argues instead that Defendants failed to comply with the
particular procedural requirements of O.R.C. § 149.43(B)(3) which reads:
If a request is ultimately denied, in part or in whole, the public office or the
person responsible for the requested public record shall provide the requester
with an explanation, including legal authority, setting forth why the request
was denied. If the initial request was provided in writing, the explanation also
shall be provided to the requester in writing. The explanation shall not
preclude the public office or the person responsible for the requested public
record from relying upon additional reasons or legal authority in defending an
action commenced under division (C) of this section.
According to Plaintiff, Hurst failed to explain why the letter was not produced and
failed to provide legal authority supporting his position that the letter was not a public record.
Plaintiff requests the Mayor either produce the letter or provide such an explanation
supported by legal authority.
The Court holds that Defendants have produced an explanation supported by evidence
and have provided the only evidence before the Court on the nature of the letter. Therefore,
they are entitled to summary judgment and the Court so grants.
Thellmann Disciplinary Records
According to Plaintiff’s SAC, on September 13, 2011, he requested the disciplinary
records relating to Police Chief Thellmann. On October 31, 2011, Mayor Hurst responded
that no disciplinary letters or records remain in Chief Thellmann’s file.
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Defendants move for summary judgment on this claim, contending that the alleged
“disciplinary records” requested by Plaintiff did not belong in the file because they were not
disciplinary records but were notes indicating Plaintiff’s belief that Thellmann was not
complying with hyper-technical protocols. Furthermore, Defendants argue there is no
evidence the requested records were destroyed, therefore, Defendants are entitled to summary
judgment on this claim.
Plaintiff Rhines responds that he was the Police Chief of Walton Hills. While serving
as police chief, Rhines supervised Thellmann, who was a lieutenant at that time. Rhines
created the alleged disciplinary documents and determined which ones should be maintained
in his subordinates’ files. Rhines argues Hurst lacked the authority to determine what
disciplinary records should be maintained in the files since he was not mayor when the
documents were created.
Having reviewed the briefs on this issue and supporting evidence, the Court grants
summary judgment for Defendants on Plaintiff’s claim for destruction of public records on
Thellmann’s disciplinary records. There is no evidence before the Court cited by Plaintiff
demonstrating that the records in question were destroyed. Hurst’s declaration indicates that
the requested disciplinary documents were withheld from production because Mayor Hurst
did not consider them public records, but no evidence suggests they were destroyed.
Therefore, the appropriate avenue to compel the production of these documents is via a writ
of mandamus.1
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O.R.C. § 149.351 permits recovery for the removal of public records as well as
for the destruction, mutilation or transfer of the documents. However, Plaintiff’s
Second Amended Complaint only alleges destruction of the documents.
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Defamation
Plaintiff further alleges Defendants defamed him. The SAC provides no details how
this was accomplished or what act constituted defamation, nor does it point to any false
statement made by Defendants.
Hurst argues Plaintiff’s defamation claim fails as a matter of law because there is no
false statement alleged. Furthermore, Walton Hills is immune under O.R.C. § 2744, which
immunizes political subdivisions. Hurst, as an employee of Walton Hills, is also immune
subject to certain exceptions.
In Ohio, the elements of a defamation claim are as follows: “First, there must be the
assertion of a false statement of fact; second, that the false statement was defamatory; third,
that the false defamatory statement was published by defendants; fourth, that the publication
was the proximate cause of the injury to the plaintiff; and fifth, that the defendants acted with
the requisite degree of fault.” Celebrezze v. Dayton Newspapers, Inc., 41 Ohio App. 3d 343,
347 (1988).
Plaintiff has not alleged facts that give rise to a federal defamation claim. The
Supreme Court stated a federal defamation claim requires that “[the] defamation had to occur
during the course of the termination of employment.” Paul v. Davis, 424 U.S. 693, 710
(1976). “Absent a further inquiry, such as loss of a government job or loss of a legal right or
status, defamation, by itself, does not constitute a remediable constitutional claim.”Voyticky v.
Village of Timberlake, 412 F.3d 669, 677 (2005) (citing Paul v. Davis, 424 U.S. at 701-03).
Therefore, Plaintiff’s defamation claim can only be brought under Ohio Law.
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Article 1, Section 11 of the Ohio Constitution guarantees every citizen the right to
publish freely his or her sentiments on all subjects. Wampler v. Higgins, 93 Ohio St. 3d 111
(2001).
Having reviewed the arguments for and against summary judgment, the Court finds
Plaintiff’s Defamation claim fails for a number of reasons. First, Plaintiff’s SAC
Defamation claim consists of the following two paragraphs:
80. Plaintiff Rhines re-alleges and incorporates by reference each and every
material allegation set forth in each preceding paragraph of the Complaint as if
fully re-written herein.
81. Defendant Hurst’s acts and omissions regarding Plaintiff Rhines constitute
the tort of defamation.
The only factual allegations arguably supporting a Defamation claim are found in
paragraph 53 of the SAC which simply recounts:
53. On March 14, 2012, Defendant Kevin Hurst stated in a memo to Council
President Linville about Plaintiff Rhines that “I have no choice but to followup with this ongoing issue with possible legal prosecution to try and stop this
on going [sic] distraction to the operation of our villages [sic] everyday single
day [sic]. This must come to a stop sooner than latter [sic].”
Plaintiff’s Defamation claim is entirely a conclusory allegation that merely alleges a
defamation occurred and is devoid of any facts supporting the claim. In fact, Plaintiff does
not even allege the elements of a defamation claim and never alleges a false statement was
made. A defamation claim must assert a false statement of fact. Plaintiff’s SAC fails to
allege this most basic of allegations. The Court and Defendants must speculate what
statement allegedly defamed Plaintiff. Even if the Court and Defendant were to assume the
defamatory statement was the Memo from Hurst to Council President Linville, the Second
Amended Complaint is entirely silent as to what portion of the memo was false. In fact, the
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Second Amended Complaint never alleges a false statement was made. This failure alone
merits dismissal.
However, even if the Court were to permit such a bare bones claim to proceed on the
assumption that the SAC alleges a legally cognizable claim for defamation, Plaintiff cannot
show a false statement. Plaintiff argues in his Opposition brief that by using the phrase “legal
prosecution” Hurst is implying Rhines committed a crime. When analyzing this statement
there is no specific crime alleged by Hurst in the statement. Instead, it merely posits Hurst
may seek “possible legal prosecution” due to “on going” [sic] “distraction” to the operation of
the village.
Such a term expressly connotes that whatever the implied conduct is, it may or
may not warrant legal prosecution. Thus, there is no false statement made because no
allegation of criminal activity is alleged. In fact, the memo in the line preceding this
statement reads, “I have handed all this information over to Mr. John Montello to handle.” In
a March 11, 2012 letter from Rhines to Montello, Montello is described as law director or
prosecutor for Walton Hills. In this context it is clear that Hurst’s memo places the decision
to determine if legal prosecution should proceed properly with Walton Hill’s prosecutor.
Furthermore, even if the Court were to consider the language used as conveying to the
ordinary reader some implication of criminal conduct, courts must “examine the totality of the
circumstances in order to determine whether a published statement constitutes an opinion
protected by the Ohio Constitution. Consideration of the totality of [the] circumstances
involves at least four factors. First is the specific language used, second is whether the
statement is verifiable, third is the general context of the statement and fourth is the broader
context in which the statement appeared.” Wampler v. Higgins 93 Ohio St.3d 111, 122, 126
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(Ohio,2001).
This analysis applies to non-media defendants as is the case with the Defendants here.
“Indeed, in Scott, this court noted that “[e]xpressions of opinion are generally accorded
absolute immunity from liability under the First Amendment” without qualification based on
the status of the defendant.” Id at 973
Applying the above four factor test further supports dismissal. Hurst’s specific use of
the term “possible” legal prosecution does not support an actionable accusation of criminal
conduct. The memo further places the decision in the hands of Montello to determine the
issue. This also goes to the second element whether the statement is verifiable. Because
there is no specific accusation of criminal conduct, only conduct possibly supporting legal
prosecution, the determination of which was to be handled by the prosecutor, compels the
Court to conclude this is an opinion protected by the Ohio Constitution. Hurst simply states
he is turning the issue over to Montello to handle because Rhines is distracting the operation
of the village. Hurst makes no conclusion that the distraction is criminal. The general
context and broader context concern the village’s operations and issues in having to respond
to the large numbers of requests by Rhines. Hurst would be in the unique position of
determining what manpower and energy were expended to comply with Rhines’ requests and
its impact on the Village’s operation. By referring the matter to the prosecutor, for possible
legal prosecution, no conclusion of criminal conduct other than Hurst’s opinion can be read
into the statement. Therefore, even under the opinion/fact analysis, Plaintiff cannot show
defamation.
Finally, even if there were an actionable defamatory statement, Plaintiff would have to
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show malice. Malice is defeated by Plaintiff’s own admission in his opposition brief that
“Hurst took action he believed he had a right to take and merely announced this to the
Village Council, defaming Rhines in the process.” (Brief in Opposition pg. 9)(emphasis
added). By conceding Hurst took the action he “believed he had the right to take” Plaintiff
cannot show Hurst acted with actual malice and Defendants are entitled to summary judgment
on the defamation claim.
Therefore, for the foregoing reasons, the Court grants Defendant’s Motion for
Summary Judgment on the claims of Plaintiff Gary Rhines.
IT IS SO ORDERED.
s/ Christopher A. Boyko
CHRISTOPHER A. BOYKO
United States District Judge
Dated: March 18, 2014
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