Aftab Pureval Hamilton County Clerk of Courts

AFTAB PUREVAL
HAMILTON COUNTY CLERK OF COURTS
COMMON PLEAS DIVISION
ELECTRONICALLY FILED
March 11, 2021 02:59 PM
AFTAB PUREVAL
Clerk of Courts
Hamilton County, Ohio
CONFIRMATION 1043448
STATE OF OHIO EX REL A 2100898

MARK MLLER
vs.
BOARD OF EDUCATION OF
THE CINCINNATI CITY
SCHOOL D
FILING TYPE: INITIAL FILING (IN COUNTY) WITH NO JURY

DEMAND
PAGES FILED: 14
EFR200
E-FILED 03/11/2021 02:59 PM / CONFIRMATION 1043448 / A 2100898 / COMMON PLEAS DIVISION / IFI
COURT OF COMMON PLEAS
HAMILTON COUNTY, OHIO
STATE OF OHIO : Case No. _________________

ex rel. MARK MILLER :
℅ Curt C. Hartman : Judge ___________________
The Law Firm of Curt C. Hartman :
7394 Ridgepoint Drive, Suite 8 :
Cincinnati, OH 45230, :
:
Relator, :
:
v. :
:
:
BOARD OF EDUCATION OF THE :
CINCINNATI CITY SCHOOL DISTRICT :
Daniel Hoying, Legal Counsel :
Office of the Cincinnati Public Schools :
2651 Burnet Avenue :
:
and :
CAROLYN JONES :
1993 Jesse Lane :
:
and :
:
RYAN LEE MESSER :
992 Marion Avenue :
and :
:
MELANIE BATES :
1617 East McMcillan Street #202 :
:
and :
EVA C. BOLTON :
aka EVE BOLTON :
1325 Aster Place :
:
and
[ continued on next page ]
PAMELA F. BOWERS :
3747 Boudinot Avenue :
:
and :
BENJAMIN A. LINDY :
3517 Burch Avenue :
:
and :
:
MICHAEL D. MOROSKI :
400 Pike Street #806 :
:
Respondents. :
Democracies die behind closed doors…. When government

begins closing doors, it selectively controls information rightfully
belonging to the people. Selective information is misinformation.
‒ Detroit Free Press v. Ashcroft,
303 F.3d 681, 683 (6th Cir. 2002)
It[’]s hard to follow this [public] meeting with these

[private] text messages back and forth.
‒ EVE BOLTON, Member, Cincinnati School Board
Private text message as part of group text messages
during the public meeting of January 16, 2021
Introduction
1. During the course of the public meeting of the BOARD OF EDUCATION OF THE
CINCINNATI CITY SCHOOL DISTRICT held on January 16, 2021, all or a majority of the
members of the BOARD OF EDUCATION were party to the exchange of a series of group text
messages wherein public business then before the BOARD OF EDUCATION was discussed
outside of the view and knowledge of the general public.
-2-
2. Stated otherwise, at least a majority of the members of the BOARD OF
EDUCATION conducted, through text messages, a private meeting of the BOARD OF
EDUCATION simultaneous with, as a part of, and during the course of the public meeting of the
BOARD OF EDUCATION held on January 16, 2021.
3. The simultaneously conducting of a private meeting of the BOARD OF
EDUCATION as a part of and during the course of the public meeting of the BOARD OF
EDUCATION on January 16, 2021, through text messages included comments by members of the
BOARD OF EDUCATION concerning and related to the matter then before the BOARD OF
EDUCATION as part of the public meeting of the BOARD OF EDUCATION.
4. Separately, when CAROLYN JONES became aware that members of the
Cincinnati Federation of Teacher were planning to participate in large numbers in the public forum
portion of the public meeting of the BOARD OF EDUCATION held on January 20, 2021,
CAROLYN JONES initiated a group conversation amongst all or a majority of the members of
the BOARD OF EDUCATION wherein a discussion and debate occurred regarding the public
business of the BOARD OF EDUCATION and, in particular, how to handled (or silence) these
public comments less, in the words of CAROLYN JONES, the teachers “hijack” the meeting.
5. As a result of the discussions of public business via in such private group text
messages amongst all or a majority of the members of the BOARD OF EDUCATION, the decision
was ultimately made to limit public comment at the meeting held on January 20, 2021.
6. This action is brought to vindicate and advance the interests of openness,
transparency and accountability at the heart of Ohio’s Open Meetings Act.
-3-
Parties
7. This action arises from the violations or threatened violations of the letter and spirit
of Ohio’s Open Meetings Act by members of the BOARD OF EDUCATION OF THE
CINCINNATI CITY SCHOOL DISTRICT.
8. Relator MARK MILLER is an individual residing in Hamilton County, Ohio,
within the Cincinnati City School District.
9. Respondent BOARD OF EDUCATION OF THE CINCINNATI CITY SCHOOL
DISTRICT is, pursuant to Ohio Revised Code § 3313.17, a body politic and corporate.
10. Consistent with Ohio Revised Code § 3313.02, the BOARD OF EDUCATION OF
THE CINCINNATI CITY SCHOOL DISTRICT consists of seven members and are selected by
the qualified electors of the Cincinnati City School District through an at-large election.
11. Respondent CAROLYN JONES is a resident of Hamilton County Ohio, and, at all
relevant times, was one of the members of the BOARD OF EDUCATION OF THE CINCINNATI
CITY SCHOOL DISTRICT.
12. Respondent RYAN MESSER is a resident of Hamilton County Ohio, and, at all
13. Respondent MELANIE BATES is a resident of Hamilton County Ohio, and, at all
14. Respondent EVA C. BOLTON aka EVE BOLTON is a resident of Hamilton
County Ohio, and, at all relevant times, was one of the members of the BOARD OF EDUCATION
OF THE CINCINNATI CITY SCHOOL DISTRICT.
-4-
15. Respondent PAMELA BOWERS is a resident of Hamilton County Ohio, and, at
all relevant times, a member of the BOARD OF EDUCATION OF THE CINCINNATI CITY
SCHOOL DISTRICT.
16. Respondent BENJAMIN A. LINDY is a resident of Hamilton County Ohio, and,
at all relevant times, was one of the members of the BOARD OF EDUCATION OF THE
17. Defendant MICHAEL MOROSKI is a resident of Hamilton County Ohio, and, at
all relevant times, was one of the members of the BOARD OF EDUCATION OF THE
Simultaneous Public and Private Text-Messages Meetings on January 16, 2021
18. As of January 16, 2021, Respondent CAROLYN JONES; RYAN MESSER;
MELANIE BATES; EVE BOLTON; PAMELA BOWERS; BENJAMIN LINDER; and
MICHAEL MOROSKI, were the seven members of the BOARD OF EDUCATION OF THE
19. According to the meeting minutes as adopted and approved by the members of the
BOARD OF EDUCATION, a meeting of the BOARD OF EDUCATION commenced at 8:34 a.m.
on January 16, 2021, and the meeting continued uninterrupted until 2:02 p.m. when the meeting
adjourned.
20. The meeting of the members of the BOARD OF EDUCATION held on January 16,
2021, was conducted in-person but all members of the BOARD OF EDUCATION with the
exception of MICHAEL MOROSKI who attended remotely.
-5-
21. After calling the meeting of the BOARD OF EDUCATION to order on January 16,
2021, CAROLYN JONES, as President of the BOARD OF EDUCATION, made the following
statements concerning the business before the BOARD OF EDUCATION at that meeting:
We have a pretty heavy agenda.… There are a couple of things on here that I just
want to particularly draw your attention to. The first item which we will address,
next, will be a discussion about our safety planning and planned return and we do
have speakers here, but this is one of the highest priority items where we will have
board discussion and we need to make a decision today.
22. Soon thereafter, the members of the members of the BOARD OF EDUCATION
started to consider the first item on the agenda, i.e., “Safety Planning/Return to In-Class Learning”,
which involved, generally speaking, whether and when to recommence in-person learning versus
remote learning versus a hybrid-learning model.
23. As part of this agenda item, a presentation was given to the members of the BOARD
OF EDUCATION by Sarah Trimble-Oliver and Dr. Robert Kahn on Community Health Data
relating to the matter being considered by the BOARD OF EDUCATION under the agenda item
of “Safety Planning/Return to In-Class Learning”.
24. As part of this presentation to the BOARD OF EDUCATION by which the
BOARD OF EDUCATION was considering and deciding whether and when to recommence in-
person learning, Sarah Trimble-Oliver or Dr. Robert Kahn included a slide which addressed the
model being utilized by other school districts in southwest Ohio:
-6-
25. Soon after this slide was presented to and considered by the members of the
BOARD OF EDUCATION, a series of private text messages started to be sent to and from
members of the BOARD OF EDUCATION over the course of the ensuing two hours (all the while
the public meeting of the BOARD OF EDUCATION was taking place), with such private text
messages addressing matters then being considered publicly by the members of the BOARD OF
EDUCATION though such private text messages with and amongst the members of the BOARD
OF EDUCATION were not made available to the general public.
26. While the meeting of the BOARD OF EDUCATION on January 16, 2021, was
being conducted in-person, not remotely, the private text messages to and from Julie Sellers, and
amongst the members of the BOARD OF EDUCATION, did not occur such that the general public
was privy to such communications occurring to and amongst members of the BOARD OF
EDUCATION during the course of the meeting on January 16, 2021.
-7-
27. At a minimum, a majority of the BOARD OF EDCUATION was party to and privy
to the private text messages being sent to and from, and amongst, the members of the BOARD OF
EDUCATION, in particular, PAMELA BOWERS, MELANIE BATES, BENJAMIN LINDY,
EVE BOLTON, and CAROLYN JONES; based upon information and belief, RYAN MESSER
and MICHAEL MOROSKI were also recipients of the series of private text messages occurring
to and amongst members of the BOARD OF EDUCATION during the course of the meeting on
January 16, 2021.
28. Initially, Julie Sellers, the President of the Cincinnati Federation of Teachers, sent
a private text message to seven individuals during the course of the on-going public meeting of the
BOARD OF EDUCATION on January 16, 2021, addressing the slide addressing the model being
utilized by other school districts in southwest Ohio:
29. At all relevant times, Julie Sellers was the President of the Cincinnati Federation of
Teachers, the sole and exclusive bargaining agent and representative of for all teachers in the
bargaining unit.
30. Pursuant to the Collective Bargaining Agreement between the BOARD OF
EDICATION and the Cincinnati Federation of Teachers, Julie Sellers, as President of the
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Cincinnati Federation of Teachers, or her designee is expressly granted and entitled to “a seat and
the right to speak at all public meetings of the Board of Education and its subcommittees.”
31. In response to the private text message made by Julie Sellers during the course of
the public meeting of the BOARD OF EDUCATION on January 16, 2021, PAMELA BOWERS
and MELANIE BATES then responded with the following exchange of private text (which was
also sent to other members of the BOARD OF EDUCATION) concerning the subject that was
then before the BOARD OF EDUCATION as part of its public meeting, but the public was not
privy to this conversation occurring privately to or amongst members of the BOARD OF
EDUCATION during the course of the public meeting:
32. This private text message to or amongst members of the BOARD OF
EDUCATION continued through the course of the public meeting of the BOARD OF
EDUCATION on January 16, 2021, essentially resulting in a private meeting and comments during
the course of the public meeting of the BOARD OF EDUCATION and comments being provided
to members of the BOARD OF EDUATION during the course of the public meeting though
-9-
without the public being privy to such activities, comments, and conversations occurring during
the course of the public meeting on matter of public business then before the BOARD OF
EDUCATION.
33. Ultimately, CAROLYN JONES declared, as part of this group text chain that:
Discussions of Public Business Via Private Text Messages
34. The next meeting of the BOARD OF EDUCATION was scheduled for January 20,
2021.
35. In advance of that meeting, on January 19, 2021, CAROLYN JONES transmitted
a group text message to all or a majority of the members of the BOARD OF EDUCATION
indicating that it had come to her attention “that [Cincinnati Federation of Teachers] is encouraging
and supporting teachers to use the public forum in tomorrow’s meeting to literally read letters in
opposition to the phase in return to class. I…want your feedback into this issue…. I have concerns
about teacher ‘hijacking’ our meeting. Your thoughts?”
36. While CAROLYN JONES indicated in the private group text message to not
discuss it here, i.e., via the private group test message, one member of the BOARD OF
EDUCATION responded and started discussing his or her position on the issue, declaring to the
other members of the BOARD OF EDUCATION that his or her first choice was to suspend all
- 10 -
public comments at the meeting of January 20, 2021, with a second choice to limit the total number
of speakers to five.
37. In response, CAROLYN JONES acknowledged in the group text message the
position and discussion of her fellow members of the BOARD OF EDUCATION, declaring
“Thanks for your comments.”
Court I
Violation of Threatened Violation of Open Meetings Act
Statutory Injunction – R.C. 121.22(I)
38. The Open Meetings Act requires that governmental bodies “conduct all
deliberations upon official business only in open meetings,” R.C. 121.22(A).
39. The Open Meetings Act “cannot be interpreted in a manner which would result in
the public being left in the dark.” State ex rel. Cincinnati Post v. City of Cincinnati, 76 Ohio St.3d
540, 544, 668 N.E.2d 903, 1996-Ohio-372.
40. One of the purposes of the Open Meetings Act is to allow “the public to ascertain
the workings of their government.” State ex rel. More Bratenahl v. Bratenahl, 157 Ohio St.3d
309, 136 N.E.3d 447, 2019-Ohio-3233 ¶10.
41. A meeting of a public body “is not open if the members communicate in whispers,
concealing their deliberations from the public.” State ex rel. More Bratenahl v. Bratenahl, 157
Ohio St.3d 309, 136 N.E.3d 447, 2019-Ohio-3233 ¶16.
42. “[A]n open meeting requires that the public have meaningful access to the
deliberations that take place among members of the public body.” State ex rel. More Bratenahl v.
Bratenahl, 157 Ohio St.3d 309, 136 N.E.3d 447, 2019-Ohio-3233 ¶19.
- 11 -
43. The “plain language [of the Open Meetings Act] requires that public meetings
remain open throughout the proceedings themselves.” State ex rel. More Bratenahl v. Bratenahl,
157 Ohio St.3d 309, 136 N.E.3d 447, 2019-Ohio-3233 ¶21.
44. “Meetings of Ohio's public bodies are profoundly open to public observation” and
“[p]ublic body members thus have no expectation to engage in confidential communication during
a public meeting conducted under the Open Meetings Act.” Foulk v. City of Upper Arlington,
2017-Ohio-4249 ¶14 (Ct. Clms.).
45. Additionally, a public body constructively closes a public meeting in violation of
the Open Meetings Act by, inter alia, whispering, passing documents among themselves, and
failing to make audible votes. Manogg v. Stickle, 5th Dist. Licking Case No. 97 CA 104, 1998
Ohio App. LEXIS 1961 (Apr. 8, 1998).
46. Furthermore, the Open Meetings Act “prohibits any private prearranged discussion
of public business by a majority of the members of a public body regardless of whether the
discussion occurs face to face, telephonically, by video conference, or electronically by e-mail,
text, tweet, or other form of communication.” White v. King, 147 Ohio St.3d 74, 60 N.E.3d 1234,
2016-Ohio-2770 (syllabus).
47. Through the use of and participating in a private group text messages amongst all
or, at least, a majority of the members of the BOARD OF EDUCATION during the course of
public meeting of the BOARD OF EDUCATION (including doing so during the course of the
meeting on January 16, 2021, the members of the BOARD OF EDUCATION have violated or
have threatened to violate the mandates and requirements of the Open Meetings Act.
48. Through the use of and participating in a private group text messages amongst all
or, at least, a majority of the members of the BOARD OF EDUCATION in advance of the meeting
- 12 -
of the BOARD OF EDUCATION scheduled for January 20, 2021, wherein discussion ensured
concerning public business of the BOARD OF EDUCATION, the members of the BOARD OF
EDUCATION have violated or have threatened to violate the mandates and requirements of the
Open Meetings Act.
49. Pursuant to the Open Meetings Act, “[u]pon proof of a violation or threatened
violation of [the Act] in an action brought by any person, the court of common pleas shall issue an
injunction to compel the members of the public body to comply with its provisions.” R.C.
121.22(I)(1).
50. Pursuant to the Open Meetings Act, upon issuance of such an injunction “the court
shall order the public body that it enjoins to pay a civil forfeiture of five hundred dollars to the
party that sought the injunction and shall award to that party all court costs and…reasonable
attorney’s fees.” R.C. 121.22(I)(2)(a).
WHEREFORE, the STATE OF OHIO, by and on relation to Relator MARK W. MILLER,
prays for the issuance, in its name, of:
a. a declaratory judgment that the conduct and activities of the BOARD OF
EDUCATION OF THE CINCINNATI CITY SCHOOL DISTRICT and its
individual members in and during the course of the meeting of the BOARD OF
EDUCATION on January 16, 2021, constitutes a violation or threatened
violation of the Open Meetings Act;
b. a declaratory judgment that the conduct and activities of the BOARD OF
EDUCATION OF THE CINCINNATI CITY SCHOOL DISTRICT and its
individual members in in advance of the meeting of January 20, 2021,
constitutes a violation or threatened violation of the Open Meetings Act;
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c. the mandatory statutory injunction precluding the BOARD OF EDUCATION
OF THE CINCINNATI CITY SCHOOL DISTRICT and its individual
members discussing, deliberating, or otherwise conducting any public business
of the BOARD OF EDUCATION through private group text messages during
of any meeting of the BOARD OF EDUCATION or otherwise;
and the STATE OF OHIO, by and on relation to Relator MARK W. MILLER, further prays for
the entry of a judgment:
d. award of the civil forfeiture, together with attorney fees and costs, as provided
for by R.C. 121.22;
e. grant any other relief to which it may be entitled, in law or in equity.
Respectfully submitted,
/s/ Curt C. Hartman

Curt C. Hartman (0064242)
The Law Firm of Curt C. Hartman
7394 Ridgepoint Drive, Suite 8
Cincinnati, OH 45230
(513) 379-2923
[email protected]
Counsel for
Relator Mark W. Miller
- 14 -
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AFTAB PUREVAL

HAMILTON COUNTY CLERK OF COURTS

COMMON PLEAS DIVISION

STATE OF OHIO EX REL A 2100898

FILING TYPE: INITIAL FILING (IN COUNTY) WITH NO JURY

STATE OF OHIO : Case No. _________________

Democracies die behind closed doors…. When government

It[’]s hard to follow this [public] meeting with these

outside of the view and knowledge of the general public.

EDUCATION conducted, through text messages, a private meeting of the BOARD OF

BOARD OF EDUCATION held on January 16, 2021.

3. The simultaneously conducting of a private meeting of the BOARD OF

EDUCATION as part of the public meeting of the BOARD OF EDUCATION.

4. Separately, when CAROLYN JONES became aware that members of the

6. This action is brought to vindicate and advance the interests of openness,

transparency and accountability at the heart of Ohio’s Open Meetings Act.

of Ohio’s Open Meetings Act by members of the BOARD OF EDUCATION OF THE

CINCINNATI CITY SCHOOL DISTRICT.

8. Relator MARK MILLER is an individual residing in Hamilton County, Ohio,

within the Cincinnati City School District.

9. Respondent BOARD OF EDUCATION OF THE CINCINNATI CITY SCHOOL

CITY SCHOOL DISTRICT.

CITY SCHOOL DISTRICT.

CITY SCHOOL DISTRICT.

14. Respondent EVA C. BOLTON aka EVE BOLTON is a resident of Hamilton

OF THE CINCINNATI CITY SCHOOL DISTRICT.

16. Respondent BENJAMIN A. LINDY is a resident of Hamilton County Ohio, and,

CINCINNATI CITY SCHOOL DISTRICT.

17. Defendant MICHAEL MOROSKI is a resident of Hamilton County Ohio, and, at

CINCINNATI CITY SCHOOL DISTRICT.

Simultaneous Public and Private Text-Messages Meetings on January 16, 2021

18. As of January 16, 2021, Respondent CAROLYN JONES; RYAN MESSER;

MELANIE BATES; EVE BOLTON; PAMELA BOWERS; BENJAMIN LINDER; and

CINCINNATI CITY SCHOOL DISTRICT.

BOARD OF EDUCATION, a meeting of the BOARD OF EDUCATION commenced at 8:34 a.m.

exception of MICHAEL MOROSKI who attended remotely.

remote learning versus a hybrid-learning model.

of “Safety Planning/Return to In-Class Learning”.

24. As part of this presentation to the BOARD OF EDUCATION by which the

model being utilized by other school districts in southwest Ohio:

OF EDUCATION were not made available to the general public.

EDUCATION during the course of the meeting on January 16, 2021.

EDUCATION, in particular, PAMELA BOWERS, MELANIE BATES, BENJAMIN LINDY,

January 16, 2021.

utilized by other school districts in southwest Ohio:

30. Pursuant to the Collective Bargaining Agreement between the BOARD OF

privy to this conversation occurring privately to or amongst members of the BOARD OF

EDUCATION during the course of the public meeting:

32. This private text message to or amongst members of the BOARD OF

Discussions of Public Business Via Private Text Messages

about teacher ‘hijacking’ our meeting. Your thoughts?”

“Thanks for your comments.”

deliberations upon official business only in open meetings,” R.C. 121.22(A).

540, 544, 668 N.E.2d 903, 1996-Ohio-372.

309, 136 N.E.3d 447, 2019-Ohio-3233 ¶10.

Ohio St.3d 309, 136 N.E.3d 447, 2019-Ohio-3233 ¶16.

157 Ohio St.3d 309, 136 N.E.3d 447, 2019-Ohio-3233 ¶21.

2017-Ohio-4249 ¶14 (Ct. Clms.).

45. Additionally, a public body constructively closes a public meeting in violation of