In a move considered rare among public officials, Chester Township Trustee Ken Radtke has filed a lawsuit against the board on which he sits, charging fellow trustees Mike Joyce and Judy Caputo with violating the Ohio Open Meetings Act when they met individually in 2011 with the township zoning inspector and a representative of a non-profit land conservancy organization.
The three-page complaintDocument_476462, filed Nov. 27 in the Geauga County Court of Common Pleas, names Chester Township, Chester Township Board of Trustees and the Western Reserve Land Conservancy as defendants, and claims that a 2011 conservation easement on a township-owned property was invalid because officials had violated Ohio’s Open Meetings Act, also called Ohio Sunshine Laws, during deliberations.
The lawsuit asks that the easement be declared invalid, the property rights be returned to the township and that Radtke be awarded damages including, but not limited to, his attorney’s fees. It requests a jury trial.
According to Chapter Four of the Ohio Open Meetings Act, anyone can file an action in common pleas court to address an alleged violation, but it must be filed within two years of the occurrence. Chester Trustees approved the conservation easement agreement on Dec. 1, 2011, according to the lawsuit.
“A formal action taken in an open meeting may be invalid if it results from deliberations that improperly occurred outside of an open meeting, e.g., at an informal, private meeting or in an executive session that was held for other than an authorized purpose,” the Open Meetings Act states.
Attached to the complaint are six pages of emails sent in 2011 between WRLC Northeastern Field Director Brett Rodstrom, Chester Township Trustees Judy Caputo, Michael Joyce and Clay Lawrence, Zoning Commission Chairwoman Margaret Muehling and Zoning Inspector Meiring Borcherds. Also included is an email from Geauga County Assistant Prosecutor Rebecca Schlag, the township’s legal counsel.
The emails reflect an attempt by Rodstrom to meet individually with each trustee to discuss the first draft of a proposed conservation easement on 85 acres of land, with separate meetings scheduled at one-hour intervals on June 15, 2011. In one email, Lawrence asked Borcherds to sit in on his session to add background knowledge. There was no mention in the emails whether any meetings actually took place.
Background
A previous board of trustees purchased three parcels totaling roughly 85 acres on Chillicothe Road at the northern edge of the township in 2001 for about $850,000, according to comments Chester Township Park Board member Lance Yandell made at an October 2013 trustees meeting.
The land remained closed to the public for many years as trustees debated how to use the acreage, more than half of it woods and wetlands.
In 2011, Borcherds presented trustees with an idea to preserve that portion as a passive park and to develop the remainder for recreational use. Borcherds left office in late 2011 to take another job.
On Dec. 1, 2011, Joyce, Caputo and Lawrence approved a conservation easement with WRLC, a non-profit, Moreland Hills-based organization that works to preserve open private and public land permanently.
Both the property purchase and the easement have been controversial in the township for the last several years, a frequent subject of public discussion at trustees meetings and a major topic in a newsletter circulated anonymously in the community.
Radtke defeated Lawrence in November of 2011 and questioned the easement as well as the township’s plans for the 85 acres. In October, he told Caputo and Joyce he believed the township had grounds to break the easement agreement because he had email evidence that trustees had violated the open meetings law by meeting separately with WRLC officials, which he called a “round robin” attempt to get around the law.
Caputo had said she did not recall that any such meetings had taken place. Both Caputo and Joyce stood by their decision to enter into the easement agreement and voted against Radtke’s proposal to pursue the issue with the Geauga County Prosecutor’s Office.
An Oct. 18 letter sent on Chester Township stationery to Prosecutor Jim Flaiz said Borcherds had appeared to be acting at the request of the WRLC when he attempted to arrange a series of individual meetings with the three trustees. It asked Flaiz whether that constituted a violation of the Sunshine Laws, whether that could make the easement agreement invalid and whether it was necessary for the township to file an action in common pleas court to reclaim its property rights.
“And would the Geauga County prosecutor take such prompt action on behalf of the Chester Township Board of Trustees?” the letter asked.
The statute of limitations would expire on Dec. 1, so the letter called for a prompt response. It was signed “The Chester Township Board of Trustees.”
Joyce and Caputo were defeated in the November election. Radtke filed his lawsuit three weeks later.
Legal Questions
One source, a Chester resident well versed in local government, said he believes even if the court finds trustees had violated the Open Meetings Act, it doesn’t necessarily mean the easement will be declared void. A judge could decide merely to issue a warning, a reprimand or a fine.
That could be the case, agreed Chardon attorney David Ondrey, who serves as village solicitor in South Russell and has dealt with issues related to the Sunshine Laws for many years. According to Ondrey, courts have given some leeway to smaller boards of trustees when determining whether an informal discussion violated the law.
“It’s not clear cut and could be a close call,” Ondrey said, adding the court will usually try to determine whether officials tried to get around the law when they met with someone or discussed an issue privately, but had later held formal discussions and voted during public sessions.
Courts have recognized it is difficult for two members of a three-trustee board to completely avoid discussing an issue outside a public meeting, he said, adding he could not comment on any specific case.
WRLC officials declined comment, but issued a press release Thursday through their general counsel, Bob Owen.
“We never discuss pending litigation,” the statement read, in part. “However, what we can tell you is this:
“We are deeply concerned about any challenge made to our legal standing with respect to this or any of our conservation easements.”
The statement said the purpose of the WRLC is to take responsibility for protecting natural resources forever, and it is the largest land trust in Ohio, protecting 37,500 acres on 500 properties in Northeast Ohio.
“And we have never lost a conservation easement,” Owen concluded.
Deep Pockets
Because one township trustee is suing the other two, the county prosecutor’s office will not be able to defend the lawsuit. Wickliffe-based attorney David Lynch, brother of state Rep. Matt Lynch (R-Bainbridge Township) is representing Radtke. The township will have to hire outside counsel.
Depending on whether the issue is resolved or goes to a jury trial, attorneys’ fees could easily run into five figures, according to Ondrey. If the township is found in violation, it may be ordered to pay Radtke’s attorney fees as well.
If the court does not issue an injunction and deems Radtke’s lawsuit frivolous, it could order him to pay all of the township’s court costs and reasonable attorney’s fees.
Another source said that he believes the WRLC has access to big-name law firms to represent their side.
“This could get very expensive,” the source said.