Judge’s Ruling on Council’s use of Executive Session

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David Anderson
Posts: 375
Joined: Mon Jun 05, 2006 12:41 pm

Judge’s Ruling on Council’s use of Executive Session

Postby David Anderson » Tue Nov 01, 2016 8:49 pm

As many may know, Mike Skindell filed a lawsuit last December alleging that Council’s use of executive session from September to December of 2015 was illegal.

Mr. Brian Essi has consistently followed up on that allegation and recently asked for details regarding the opinion Council asked for and received from Council’s legal team at Thompson Hine earlier in 2015 concerning Council’s use of executive session. “Who besides you asked for the opinions and which individual attorneys gave you the opinions that this was all ‘proper’ as you state above?” asked Mr. Essi.

Well, Mr. Essi, Thompson Hine’s Partner in Charge briefed Council and facilitated a discussion but I do not recall Thompson Hine providing a written/printed opinion. However, on December 21, 2015, Judge Friedman held a hearing on Skindell’s lawsuit and dismissed the lawsuit with prejudice (Skindell can’t file another case on the same claim). So, in the interest of providing you, Mr. Essi, and everyone with a written opinion on this matter as requested, I offer Judge Friedman’s final order below.

CASE CALLED FOR HEARING ON DECEMBER 21, 2015. ALL COUNSEL OF RECORD AND PARTIES APPEARED. TESTIMONY WAS TAKEN AND EVIDENCE WAS PRESENTED. THE COURT NOTES THAT, UNDER THE PRESSURE OF THE MOMENT, THE COURT INADVERTENTLY STATED INCORRECTLY THAT IT WAS CONSOLIDATING THE PRELIMINARY INJUNCTION HEARING WITH A HEARING ON A PERMANENT INJUNCTION. INSTEAD, THE COURT INTENDED TO GRANT DEFENDANTS' MOTION TO CONSOLIDATE THE PRELIMINARY INJUNCTION HEARING WITH A TRIAL ON THE MERITS PURSUANT TO CIVIL RULE 65(B)(2). DEFENDANTS' MOTION TO CONSOLIDATE IS GRANTED, OVER OBJECTIONS BY PLAINTIFF.

THE COURT MAKES THE FOLLOWING FINDINGS: COUNT 1 TEMPORARY RESTRAINING ORDER AS PLAINTIFF'S MOTION FOR A TEMPORARY RESTRAINING ORDER WAS PREVIOUSLY DENIED, COUNT 1 IS MOOT. COUNT 2 PRELIMINARY INJUNCTION FOR THE REASONS NOTED AT THE CONCLUSION OF THE HEARING, PLAINTIFF'S MOTION FOR A PRELIMINARY INJUNCTION IS DENIED. COUNT 3 DECLARATORY JUDGMENT THE COURT FINDS THAT THE EXECUTIVE SESSIONS WERE NOT UNLAWFUL IN THAT THERE HAS BEEN NO EVIDENCE PRESENTED THAT ANY DELIBERATIONS OCCURRED OR ACTIONS TAKEN IN VIOLATION OF R.C. § 121.22(A). FURTHER, ANY DELIBERATIONS THAT TOOK PLACE WERE EXPRESSLY PERMITTED IN THE LIGHT OF THE PENDING LAWSUIT CV-15-846212 BEFORE JUDGE JOHN P. O'DONNELL. COUNT 4 DECLARATORY JUDGMENT INASMUCH AS NO ACTION WAS TAKEN OR DECISION REACHED IN VIOLATION OF R.C. § 121.22(A), THE MASTER AGREEMENT WAS NOT PROCEDURALLY INVALID. THE COURT NOTES IN THIS REGARD THAT THE VALIDITY VEL NON OF THE MASTER AGREEMENT ON ITS MERITS IS THE SUBJECT IF THE ACTION PENDING BEFORE JUDGE O'DONNELL. COUNT 5 PERMANENT INJUNCTION HAVING FOUND THAT THERE IS NO EVIDENCE TO SUPPORT PLAINTIFF'S CLAIM THAT THE LAKEWOOD CITY COUNCIL FAILED TO COMPLY WITH THE OPEN MEETINGS ACT, THE PRAYER AS TO COUNT 5 FAILS TO STATE A COGNIZABLE CLAIM.

BASED UPON THE ABOVE FINDINGS, THE COURT FINDS THAT PLAINTIFF'S PRAYER FOR A CIVIL FORFEITURE, COSTS, REASONABLE ATTORNEY FEES, AND "ANY OTHER ADDITIONAL RELIEF" IS MOOT. CASE IS DISMISSED WITH PREJUDICE AT PLAINTIFF'S COSTS. FINAL. COURT COST ASSESSED TO THE PLAINTIFF(S).


I do hope this puts an end to the unsupported but oft repeated allegation that Council acted illegally.

David Anderson


Bridget Conant
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Joined: Wed Jul 26, 2006 4:22 pm

Re: Judge’s Ruling on Council’s use of Executive Session

Postby Bridget Conant » Tue Nov 01, 2016 9:05 pm

Really now?

Why did you leave out the rest of the docket information?

The case is in the Appeals court. Anyone can search the Cuyahoga Court website and find the case under Appeals and see all the court filings. CA-15-103976

It isn't over, Mr Anderson and you know it. Further, your post sounds suspiciously forced and unusually caustic. Were you told to post this?

You've left a lot of unanswered questions here for many days then suddenly pop back in with this.

I repeat, for anyone interested, the case continues in court. Look it up.


David Anderson
Posts: 375
Joined: Mon Jun 05, 2006 12:41 pm

Re: Judge’s Ruling on Council’s use of Executive Session

Postby David Anderson » Tue Nov 01, 2016 9:51 pm

Ms. Conant –

It’s almost 11 months after the initial ruling. What Skindell’s lawsuit attempted to stop (again, dismissed with prejudice) took place last December. Yes, it’s under appeal and is fully briefed.

You are correct, I hadn’t checked in on the LO Deck for a week or so. However, I did check in last night and saw a request for an opinion on this matter and in another newer thread read repeated and unfounded claims that I participated in “secret executive sessions” and “Butler and Thompson Hine lawyers told him the secret sessions were somehow legal.”

Nobody told me to post anything. I was named as a defendant in Skindell’s baseless lawsuit and am still named in the appeal and sort of take this personally.

Mr. Essi made the claims I quoted above and asked for details as to how publically noticed sessions I participated in could be considered legal. I simply answered his question and provided Judge Friedman’s decision/order.

David Anderson


Brian Essi
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Joined: Thu May 07, 2015 11:46 am

Re: Judge’s Ruling on Council’s use of Executive Session

Postby Brian Essi » Tue Nov 01, 2016 10:17 pm

Brian Essi wrote:
David Anderson wrote:[b]

Yes, Council has used executive sessions in recent months to discuss issues regarding Lakewood Hospital – potential sale or purchase of property and pending litigation. (For my part, I have voted against going into executive session to discuss hospital matters only once.) These sessions are not recorded and, again, we are not permitted to vote on anything. We have, however, used these to meet with lawyers from Thompson Hine which is the firm we hired to prepare for and initiate a negotiation process with the Cleveland Clinic.

There is some debate in the community as to whether the use of executive sessions to discuss potential Lakewood Hospital real estate transactions and litigation meet the legal criteria. I, and others, have consistently asked the City’s law department as well as the law firm of Thompson Hine to give an opinion as to whether our use of executive sessions in this setting is proper. We have been repeatedly assured that these do meet the standard. I am not a lawyer and would not be able to make sense of a binder of case law on this issue if I had to. Therefore, I must act on the legal advice solicited and provided.

I pledge to check in on this thread regularly and will try answer any questions and comments that I can.

Yours in Service,
David W. Anderson
216-789-6463
David.Anderson@Lakewoodoh.net


Mr. Anderson,

I have taken the liberty of combining two of your posts above from last September.

Will you honor you pledge by answering the following questions:

1. Will you make the legal opinions you refer to above public?

2. Who besides you asked for the opinions and which individual attorneys gave you the opinions that this was all "proper" as you state above?

3. Will you produce all emails provided to you and Council from Mr. Butler and Thompson Hine lawyers referring to the preparation for, initiation of, and consummation of a negotiation process and the Master Agreement with the Cleveland Clinic?

I thank you in advance for your prompt response.

Brian Essi
Lakewood Resident


Mr. Anderson,

Thank you for your cutting and pasting the Court decision that was made without you and 4 other Defendants present in Court. As you may be aware, Plaintiff's counsel asked that you and others be present to testify, but you failed to appear at the hearing. I understand that case is on appeal and recently the subject of a mediation--I hope that you and all of the Defendants appear at the Court ordered mediation.

However, I asked different questions than the ones the Court answered.

Here are my questions again if you could fully answer them as you committed to doing last year:

1. Will you make the legal opinions you refer to above public? (Please explain in detail)

2. Who besides you asked for the opinions and which individual attorneys gave you the opinions that this was all "proper" as you state above?

3. Will you produce all emails provided to you and Council from Mr. Butler and Thompson Hine lawyers referring to the preparation for, initiation of, and consummation of a negotiation process and the Master Agreement with the Cleveland Clinic?

Finally, if you have nothing to hide and have done nothing "illegal" as you claim, why won't you and the City produce the emails and other public records?

Why won't you meet with me?

Brian Essi
Lakewood Resident


Pae is unfit for council. Pae made false statements to the Court and the public about city finances. City risks more lawsuits if Pae appointed.
Lori Allen _
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Re: Judge’s Ruling on Council’s use of Executive Session

Postby Lori Allen _ » Tue Nov 01, 2016 10:37 pm

Good point, Bridget. The very important fact that this case is still being appealed was left out. I will leave the others to decide whether this was done intentionally to deceive and mislead or not.

Since we are on the topic of council, I will say that I am still awaiting an explanation from Councilwoman Cynthia A. Marx regarding her campaign contributions from Cleveland Clinic employees and affiliates and also her rather heavy contribution from Mr. James W. Kemp Jr., a managing director at Huron Consulting. Ms. Marx should have recused herself from voting on these matters, in my opinion. She owes an explanation to her constituents. Perhaps she could make a statement and it could be put on OneLakewood.com.

I firmly believe that the City Hall is bursting at the seams with ethics violations. Since when it is ethical to "give away" a city-owned land on Waterbury for free to an alleged friend of Mike Summers? Since when is it ethical to take contributions from companies and their affiliates and then vote on matters that deal specifically with that company? Since when is it ethical to withhold hundreds of PUBLIC records that Mr. Butler seems to still be holding hostage?

Friends & neighbors, do not be bamboozled by City Hall. Do not allow them to derail you.

If the deal is so great, why has Butler seemingly been hiding public records?

If the deal is so great, why are City Hall employees all over social media and the internet screaming about SLH? If the deal is so great, why are many of them accusing SLH of stealing or vandalizing "for 64" signs? I recall BL denying they were stealing or vandalizing SLH signs last election? Is this only a one-way street?

If the deal is so great, why do City Hall employees appear to be in their offices at City Hall into the wee hours of the night on weekends (shredding, scrubbing?)

If the deal is so great, why not wait until after the vote to start demolition of the south parking garage, especially when our tax money is being given away to CCF for demolition?

If the deal is so great, why did Lakewood Democratic Club insiders appear to purge SLH members from a recent endorsement meeting, including a DNC delegate?

If the deal is so great, why does Summers appear to be going around pulling strings with his union friends to get them to endorse "64"? What was the reward for these unions? Since when do unions endorse political issues in small, dinky towns like Lakewood?

If the deal is so great, why do we have a fire chief that has not even had a valid paramedic license since 2007 going around town to press conferences and senior homes and discussing EMS procedures, protocols, response times, etc.?

This all boils back to one of the main points of this thread: honesty and transparency. Had the deal been done with open bidding, open meetings, and with all of the records on the table (and not being held hostage by Butler) maybe we wouldn't be here today.


David Anderson
Posts: 375
Joined: Mon Jun 05, 2006 12:41 pm

Re: Judge’s Ruling on Council’s use of Executive Session

Postby David Anderson » Tue Nov 01, 2016 10:41 pm

Mr. Essi -

1. Will you make the legal opinions you refer to above public? This is a public forum and I reported my recollection of this legal opinion offered by Lakewood’s Law Department and Thompson Hine on numerous occasions. As I posted above, I do not recall Thompson Hine providing a printed report of the opinion regarding Council’s proper use of executive sessions. What I do recall was an oral report and ensuing conversation that was based upon Thompson Hine’s analysis of Lakewood’s Charter, Ohio Law, etc. That opinion was spot on based on Judge Friedman’s ruling/order.

2. Who besides you asked for the opinions and which individual attorneys gave you the opinions that this was all "proper" as you state above? I recall all members of Council as being interested in this area and, again, as I posted above, Thompson Hine’s Partner-in-Charge reported back and facilitated conversation.

3. Will you produce all emails provided to you and Council from Mr. Butler and Thompson Hine lawyers referring to the preparation for, initiation of, and consummation of a negotiation process and the Master Agreement with the Cleveland Clinic? I am not aware of having any emails you describe above in my Council or personal email inbox.

David W. Anderson


David Anderson
Posts: 375
Joined: Mon Jun 05, 2006 12:41 pm

Re: Judge’s Ruling on Council’s use of Executive Session

Postby David Anderson » Tue Nov 01, 2016 10:43 pm

Mr. Essi -

Judge Friedman’s ruler/order from last December has been posted. What will it take for you to stop stating that I participated in “secret executive sessions” and working to convince others that Council’s sessions were illegal?

Thanks, in advance.

David Anderson


Brian Essi
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Joined: Thu May 07, 2015 11:46 am

Re: Judge’s Ruling on Council’s use of Executive Session

Postby Brian Essi » Tue Nov 01, 2016 10:54 pm

David Anderson wrote:Mr. Essi -

Judge Friedman’s ruler/order from last December has been posted. What will it take for you to stop stating that I participated in “secret executive sessions” and working to convince others that Council’s sessions were illegal?

Thanks, in advance.

David Anderson


Mr. Anderson,

You seem defensive and are reading something into what I have written--please point to where I claimed you did something "illegal"?

Isn't it a fact that you met in secret and negotiated the destruction of the hospital?

That is a fact, not a "rumor."


Pae is unfit for council. Pae made false statements to the Court and the public about city finances. City risks more lawsuits if Pae appointed.
David Anderson
Posts: 375
Joined: Mon Jun 05, 2006 12:41 pm

Re: Judge’s Ruling on Council’s use of Executive Session

Postby David Anderson » Tue Nov 01, 2016 11:07 pm

Mr. Essi, I you wrote, “We all know that by December 7, 2015, Council had met in secret executive sessions and agreed to terms of the Master Agreement prior to it announcement that day. Mr. Anderson's posts below concede this point when he claims Butler and Thompson Hine lawyers told him the secret sessions were somehow legal.”

“secret executive sessions”

“lawyers told him the secret sessions were somehow legal”

I’ll ask again, Judge Friedman’s ruler/order from last December has been posted. What will it take for you to stop stating that I participated in “secret executive sessions” and insinuating that Council’s sessions were illegal?

David Anderson


Brian Essi
Posts: 2404
Joined: Thu May 07, 2015 11:46 am

Re: Judge’s Ruling on Council’s use of Executive Session

Postby Brian Essi » Tue Nov 01, 2016 11:09 pm

David Anderson wrote:Mr. Essi -

3. Will you produce all emails provided to you and Council from Mr. Butler and Thompson Hine lawyers referring to the preparation for, initiation of, and consummation of a negotiation process and the Master Agreement with the Cleveland Clinic? I am not aware of having any emails you describe above in my Council or personal email inbox.

David W. Anderson


Mr. Anderson,

Please refer to the emails attachment to my public records request dated September 20, 2016 referring to Mr. Butler’s emails to City Council dated June 22, 2015, at 12:22PM, July 10, 2015, at 2:39PM, and July 17, 2015, at 3:37 PM. Specifically, note PRR 226 through PRR 259 where I have asked for additional emails and public records. You were copied on my request and those emails from Mr. Butler.

Once again, if you and others have done nothing "illegal" (your words not mine) why won't you and the City produce the records?

I am simply trying to understand why the Public's records are being kept secret.


Pae is unfit for council. Pae made false statements to the Court and the public about city finances. City risks more lawsuits if Pae appointed.
David Anderson
Posts: 375
Joined: Mon Jun 05, 2006 12:41 pm

Re: Judge’s Ruling on Council’s use of Executive Session

Postby David Anderson » Tue Nov 01, 2016 11:18 pm

Mr. Essi -

I am not aware of having the emails you list. I do not handle public records requests.


You wrote, “We all know that by December 7, 2015, Council had met in secret executive sessions and agreed to terms of the Master Agreement prior to it announcement that day. Mr. Anderson's posts below concede this point when he claims Butler and Thompson Hine lawyers told him the secret sessions were somehow legal.”

You asked me to point to where you claimed I did something illegal.

“secret executive sessions”

“lawyers told him the secret sessions were somehow legal”

I’ll ask for a third time, Judge Friedman’s ruler/order from last December has been posted. What will it take for you to stop stating that I participated in “secret executive sessions” and insinuating that Council’s sessions were illegal?

David Anderson


m buckley
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Re: Judge’s Ruling on Council’s use of Executive Session

Postby m buckley » Wed Nov 02, 2016 12:12 am

David Anderson wrote:Mr. Essi -

I am not aware of having the emails you list. I do not handle public records requests.


You wrote, “We all know that by December 7, 2015, Council had met in secret executive sessions and agreed to terms of the Master Agreement prior to it announcement that day. Mr. Anderson's posts below concede this point when he claims Butler and Thompson Hine lawyers told him the secret sessions were somehow legal.”

You asked me to point to where you claimed I did something illegal.

“secret executive sessions”

“lawyers told him the secret sessions were somehow legal”

I’ll ask for a third time, Judge Friedman’s ruler/order from last December has been posted. What will it take for you to stop stating that I participated in “secret executive sessions” and insinuating that Council’s sessions were illegal?David Anderson


Mr. Anderson you can regurgitate Judge Friedman's decision all you want. What you don't get to do is engage in some sort of revisionism where you and the rest of the heroes at City Council didn't slink off to a backroom with the sole purpose of brokering a deal with the Cleveland Clinic. It was a pattern blatantly repeated, which all of us at once saw and yet didn't get to see.
There is no such thing as backroom democracy. It's a perversion. It's the enemy of participatory democracy. And yet Mr. Anderson you went back again and again to secure that deal. Again and again shutting the door on truth and transparency.

If your conduct wasn't illegal Mr. Anderson, it was certainly disgraceful.


" City Council is a 7-member communications army." Colin McEwen December 10, 2015.
mjkuhns
Posts: 547
Joined: Mon Aug 15, 2016 8:43 am
Contact:

Re: Judge’s Ruling on Council’s use of Executive Session

Postby mjkuhns » Wed Nov 02, 2016 7:40 am

I find much of the information provided to Council and the community to be unclear, less than thorough and not entirely unbiased. I have and will continue to fight for unvarnished and objective reports which may hopefully lead to a more fact-based outcome that will gain the community’s support. […] In addition, I feel the imperfect process over the last couple of years has led many in our community to express a lack of confidence in the option of replacing Lakewood’s full service hospital with a Family Health Center. Many believe this is a backroom deal cloaked in secrecy. While I do not believe that, necessarily, what I do believe is that if residents’ faith and trust in the way the city conducts business erodes, then we have much more to lose than a hospital.

– The statements of Councilman David Anderson, in the Nov. 29, 2015 Lakewood Observer.
http://lakewoodobserver.com/read/2015/09/29/ward-one-councilman-anderson-seeks-a-second-term

I still wonder what specifically was imperfect about the process, and when, and how, it stopped being a valid and important concern that merited a real change in approach.
http://lakewoodobserver.com/forum/viewtopic.php?f=7&t=23436


:: matt kuhns ::
Brian Essi
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Joined: Thu May 07, 2015 11:46 am

Re: Judge’s Ruling on Council’s use of Executive Session

Postby Brian Essi » Wed Nov 02, 2016 8:17 am

David Anderson wrote:Mr. Essi -

I am not aware of having the emails you list. I do not handle public records requests.


You wrote, “We all know that by December 7, 2015, Council had met in secret executive sessions and agreed to terms of the Master Agreement prior to it announcement that day. Mr. Anderson's posts below concede this point when he claims Butler and Thompson Hine lawyers told him the secret sessions were somehow legal.”

You asked me to point to where you claimed I did something illegal.

“secret executive sessions”

“lawyers told him the secret sessions were somehow legal”

I’ll ask for a third time, Judge Friedman’s ruler/order from last December has been posted. What will it take for you to stop stating that I participated in “secret executive sessions” and insinuating that Council’s sessions were illegal?

David Anderson


Mr. Anderson,

You cannot deny that you did, in fact, meet in executive session to destroy the hospital.

What will you say to the people of Lakewood if the trial court is overturned and you handlers have been proven wrong?

You are not a "victim" of me--if you are a "victim" at all, you are a victim of corrupt and misguided mouthpieces serving special interests who manipulated you.

To answer your question head on, to satisfy me here is what it will take:

1. It will take a ruling by the 8th Circuit Court of Appeals in Skindell v Madigan, and then a decision by the Ohio Supreme Court if need be---my review of the trial court proceedings reveals that the trial court should be reversed.

2. A full disclosure of all existing public records that pertain to your, City Council's and Mr. Butler's heretofore secret conduct might persuade me--as long as Mr. Butler and the City withhold critical records, a dark cloud will remain over you and the City government--perhaps for years to come.

I find it disturbing that you are suggesting that Mr. Butler has not made an inquiry of you as to the numerous public records requests that pertain to public records that you might possess. Your response suggests that neither you nor Mr. Butler have done the most basic parts of your duties in responding my public records requests even though they were sent to you:

From: Brian Essi
Subject: PRR 226 to PRR 323
Date: September 20, 2016 at 2:57:28 PM EDT
To: Kevin Butler <kevin.butler@lakewoodoh.net>
Cc: "Ohio Atty. General Mike DeWine Public Record Unit" <mediation@ohioattorneygeneral.gov>, Ohio Auditor of State Dave Yost Open Government Unit <ogu@auditor.state.oh.us>, Mike Summers <mike.summers@lakewoodoh.net>, Sam O'Leary <sam.oleary@lakewoodoh.net>, David Anderson <david.anderson@lakewoodoh.net>, John Litten <john.litten@lakewoodoh.net>, Daniel O'Malley <daniel.omalley@lakewoodoh.net>, Tom Bullock <tom.bullock@lakewoodoh.net>, Cynthia Marx <cindy.marx@lakewoodoh.net>, Ryan Nowlin <ryan.nowlin@lakewoodoh.net>
Reply-To: Brian Essi <bjessi@sbcglobal.net>

Dear Director Butler,

Attached you will find my letter dated September 20, 2016 containing my public records requests PRR 226 to PRR 323.

Original letters with attachments have been hand-delivered to your office and mailed via certified mail today.

Sincerely,

Brian J. Essi

Last edited by Brian Essi on Wed Nov 02, 2016 8:34 am, edited 1 time in total.


Pae is unfit for council. Pae made false statements to the Court and the public about city finances. City risks more lawsuits if Pae appointed.
Bridget Conant
Posts: 2626
Joined: Wed Jul 26, 2006 4:22 pm

Re: Judge’s Ruling on Council’s use of Executive Session

Postby Bridget Conant » Wed Nov 02, 2016 8:24 am

David Anderson:

I find much of the information provided to Council and the community to be unclear, less than thorough and not entirely unbiased.


Why wasn't the mayor upfront and forthcoming from the start?


I feel the imperfect process over the last couple of years has led many in our community to express a lack of confidence in the option of replacing Lakewood’s full service hospita


Above which has led to this:
I do believe is that if residents’ faith and trust in the way the city conducts business erodes, then we have much more to lose than a hospital.


Which is where we are today and it didn't have to be this way. A city divided, a city that has lost a valuable asset, a real mess. No one can deny we are in a bad place.

For what??



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