COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68572 IRVING CHUDNER, ET AL. : : ACCELERATED DOCKET : PLAINTIFFS-APPELLANTS : JOURNAL ENTRY : v. : AND : CLEVELAND CITY SCHOOL : OPINION DISTRICT, ET AL. : : PER CURIAM DEFENDANTS-APPELLEES : DATE OF ANNOUNCEMENT OF DECISION: AUGUST 10, 1995 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, No. CV-280752. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiffs-Appellants: Neal M. Jamison, Esq. 5709 Smith Road Brookpark, OH 44142 For Defendants-Appellees: Wanda Rembert Arnold, Esq. 1380 East 6th Street, No. 152 Cleveland, OH 44114 Frederick R. Nance, Esq. John K. Stipancich, Esq. Squire, Sanders & Dempsey 4900 Society Center 127 Public Square Cleveland, OH 44114-1304 Ricardo B. Teamor, Esq. Adrian Thompson, Esq. 815 Superior Avenue, N.E. Suite 1320 Cleveland, OH 44114 -3- PER CURIAM: This cause came on to be heard upon the accelerated calendar pursuant to App.R. 11.1 and Loc.App.R. 25, the record from the Cuyahoga County Court of Common Pleas, oral argument and the briefs of counsel. Irving Chudner, et al., plaintiffs- appellants, appeal from the judgment of the Cuyahoga County Court of Common Pleas which granted the motion for summary judgment of the Board of Education of the Cleveland City School District, et al., defendants-appellees. Plaintiffs-appellants' assign one error for this court's review. Plaintiffs-appellants' appeal is not well taken. On November 16, 1994 the Board of Education of the Cleveland City School District, defendants-appellees, scheduled a meeting for the stated purpose of discussing in Executive Session issues relating to Reed, et al. v. Rhodes, et al., United States District Court, Case No. C73-1300, the Cleveland school desegregation case. Present at this meeting by invitation were City of Cleveland Mayor Michael White and Mr. Martin Walker of the Greater Cleveland Growth Association. Ms. Wanda Arnold, general counsel for the school district, was also present at the meeting. During the Executive Session, the following topics were discussed: (1) school district finances and voted property tax school levies; (2) community relations issues; (3) transportation of students for desegregation (i.e. busing); (4) school safety issues; (5) buildings and facilities of the Cleveland Public -4- Schools; and (6) Vision 21 educational reform plan as well as alternative plans. Plaintiffs-appellants maintain that the November 16, 1994 meeting constituted a violation of R.C. 121.22, Ohio's Sunshine Law. On November 23, 1994 plaintiffs-appellants filed an action in the Cuyahoga County Court of Common Pleas seeking temporary and permanent injunctive relief to enjoin possible future violations by defendants-appellees of R.C. 121.22. On November 30, 1994 the trial court held a hearing on plaintiffs-appellants' motions for a temporary restraining order and permanent injunction. During the hearing the trial court heard testimony of four members of the Board of Education. At the conclusion of the hearing the trial court denied plaintiffs- appellants' motions for a temporary restraining order and permanent injunction. On December 8, 1994 defendants-appellees filed a motion for summary judgment. Defendants-appellees argued that they were entitled to judgment as a matter of law since their meeting of November 16, 1994 was not held in violation of R.C. 121.22. On January 31, 1995 the trial court granted the motion for summary judgment of defendants-appellees. On February 16, 1995 plaintiffs-appellants timely filed their notice of appeal from the judgment of the trial court. Plaintiffs-appellants' sole assignment of error states: THE TRIAL COURT ERRED IN GRANTING APPELLEES' MOTION FOR SUMMARY JUDGMENT WHERE THE APPELLEES HAD VIOLATED OHIO'S SUNSHINE LAW. -5- Plaintiffs-appellants argue through their first and only assignment of error that the trial court erred in granting defendants-appellees' motion for summary judgment since the evidence before the trial court demonstrated that the meeting of November 16, 1994 was held in direct violation of R.C. 121.22, Ohio's Sunshine Law. Specifically, plaintiffs-appellants maintain that the closed door session was merely a pretext to afford Mayor White the opportunity to discuss privately with the members of the school board various public issues concerning the Cleveland City School District, which were unrelated to Reed v. Rhodes, the Cleveland School desegregation case. Defendants-appellees contend that their meeting was conducted in accordance with R.C. 121.22(G)(3) which provides an exception to the open meetings of public bodies requirement where conferences with an attorney involving pending or imminent court action are permitted. It is defendants-appellees' position that every subject discussed at the November 16, 1994 meeting was directly related to Reed v. Rhodes and therefore falls within the R.C. 121.22(G)(3) exception. R.C. 121.22(G)(3) states: (G) The members of a public body may hold an executive session only after a majority of a quorum of the public body determines, by a roll call vote, to hold such a session and only at a regular or special meeting for the sole purpose of the consideration of any of the following matters: (3) Conferences with an attorney for the public body concerning disputes involving the -6- public body that are the subject of pending or imminent court action; *** In Ohio, the exceptions to Ohio's Sunshine Law, contained in R.C. 121.22(G)(1) through (6), are to be strictly construed to require a public body to open its meetings to the public unless one of the statutory exceptions clearly applies. Gannett Satellite Information Network, Inc. v. Chillicothe Bd. of Edn. (1988), 41 Ohio App.3d 218 at paragraph one of syllabus. However, an executive session of any governmental board, commission, agency or authority from which the public is excluded and certain selected persons are invited to attend at which no public business shall be transacted is recognized and permitted by statute. Dayton Newspapers v. Dayton (1971), 28 Ohio App.2d 95. In order to show a violation of the open meeting rule under Ohio's Sunshine Law, either resolution, rule, or formal action of some kind must have been adopted by a public body at a meeting not open to the public. Haleski v. Lawrence (1993), 85 Ohio App.3d 824. Civ.R. 56(C) provides that before summary judgment may be granted, the court must determine that (1) no genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, -7- that conclusion is adverse to that party. Osborne v. Lyles (1992), 63 Ohio St.3d 326. A motion for summary judgment forces the non-moving party to produce evidence on issues for which that party bears the burden of production at trial. Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108 (syllabus). The non-movant must also present specific facts and may not rely merely upon the pleadings or upon unsupported allegations. Shaw v. Pollack & Co. (1992), 82 Ohio App.3d 656. When a party moves for summary judgment supported by evidentiary material of the type and character set forth in Civ.R. 56(E), the opposing party has a duty to submit affidavits or other material permitted by Civ.R. 56(C) to show that there is a genuine issue for trial. Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64. This court's analysis of an appeal from a summary judgment is conducted under a de novo standard of review. See Maust v. Bank One Columbus, N.A. (1992), 83 Ohio App.3d 103, 107; Howard v. Willis (1991), 77 Ohio App.3d 133. No deference is given to the decision under review, and this court applies the same test as the trial court. Bank One of Portsmouth v. Weber (Aug. 7, 1991), Scioto App. No. 1920, unreported. In this case, a review of the record demonstrates that the trial court did not err in granting defendants-appellees' motion for summary judgment. Plaintiffs-appellants contend that the November 16, 1994 meeting was held in violation of R.C. 121.22 since matters were discussed which did not relate to Reed v. -8- Rhodes, the twenty-year-old desegregation lawsuit, and the presence of Mayor White and Martin Walker at the Executive Session violated the Ohio Open Meetings Act. The record from the trial court fails to support plaintiffs-appellants' assertion. As previously stated, topics discussed at the meeting included failed tax levies, community relations, busing of students, school safety issues and educational reform plans and their possible impact on the school district. Each one of these issues has a direct bearing on Reed v. Rhodes given the fact that the scope of the desegregation case went far beyond merely busing students to achieve racially balanced student bodies at individual school locations but included many other aspects of the segregated school system as well as court-ordered mandates put in place as corrective measures. Accordingly, plaintiffs- appellants' contention that these topics did not relate to Reed v. Rhodes and therefore did not fall within the R.C. 121.22(G)(3) exception to Ohio's Open Meetings Law is without merit. In addition, it is not a violation of R.C. 121.22 for certain individuals to attend a meeting in Executive Session upon invitation of the pubic body as long as no formal action of the public body will occur. Dayton Newspapers, Inc. v. Dayton, supra. As stated by the Seventh District Court of Appeals in Thomas v. Bd. of Trustees (1966), 5 Ohio App.2d 265: An executive session is one from which the public is excluded and at which only such selected persons as the board may invite are permitted to be present. The test is -9- not who is present at the meeting, but whether the meeting is open to the public. For this reason, Mayor White and Martin Walker's attendance at the meeting pursuant to defendants-appellees' invitation does not constitute a violation of R.C. 121.22. Plaintiffs-appellants' sole assignment of error is not well taken. Judgment of the trial court is affirmed. -10- It is ordered that appellees recover of appellants their costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DAVID T. MATIA, PRESIDING JUDGE ANN DYKE, JUDGE DIANE KARPINSKI, JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate .