[Cite as State ex rel. Youngstown Professional Firefighters IAFF Local 312 v. Youngstown , 2021-Ohio-539.]

A tty. Brooks Boron, and Atty. Ryan Lemmerbrock, Muskovitz & Lemmerbrock, LLC, 1621 Euclid Avenue, Suite 1750, Cleveland, Ohio 44115, for Relators and

A tty. Jeffrey Limbian, City of Youngstown Law Director, and Atty., Jeffrey Moliterno, Senior Assistant Law Director, 26 South Phelps Street, Youngstown, Ohi o 44503, for Respondent

. 

## IN THE COURT OF APPEALS OF OHIO

SEVENTH APPELLATE DISTRICT MAHONING COUNTY

STATE EX REL. YOUNGSTOWN PR OFESSIONAL FIREFIGHTERS IAFF LOCAL 312 ET AL.,
Relators,

v. CITY OF YOUNGSTOWN,
Respondent.

OPINION AND JUDGMENT ENTRY Case No. 20 MA 0089

Writ of Mandamus

BEFORE: David A. D’Apolito, Gene Donofrio, Cher y l L. Waite, Jud g es.

JUDGMENT: Writ of Mandamus Dismissed. Dama g e Claim Continued.2

Case No. 20 MA 0089 Dated: Februar y

23, 2021

PER CURIAM.
{¶1} On August 24, 2020, Relators, Youngstown Professional Firefight ers, IAFF Local 312 (“Union”), Union President Charles Smith, and Firefig hter Patrick Holcomb filed this original action seeking a writ of mandamus to compel Respo ndent, City of Youngstown (“City”) to appoint an “independent, neutral investi gator” to conduct a “true and fair investigation” into a complaint filed by Holcomb again st Fire Chief Barry Finley, and for the City to proceed with the issuance of discipline, if so warranted, following the conclusion of the investigation. The verified complaint in mand amus further sought to compel the City to fulfill a public record request, filed by Re lators on June 18, 2020, for any and all documents related to the City’s previous investigat ion of Holcomb’s complaint, and for statutory damages and attorneys’ fees resulting from th e City’s failure to provide the investigative report within a reasonable period of time. {¶2} On August 31, 2020, one week after this original action was fil ed, the City provided a copy of the investigative report to Relators. As a consequence, on September 21, 2020, Relators filed an amended verified complaint for mand amus seeking to compel the City to appoint an independent, neutral investigator, but l imiting its public records request to an award of statutory damages and attorneys’ fees. {¶3} The City filed its answer to the amended verified complaint on October 2, 2020. In a mandamus action, the pleadings have the same effect and must be construed
in the same manner as in civil actions. R.C. 2731.09. {¶4} Having reviewed sua sponte the amended verified complaint and t he attachments thereto, we find that Relators do not have a clear legal right pursuant to section 163.63 of the Youngstown Codified Ordinances (“YCO”) to the appointment of an independent, neutral investigator, or that the City has a clear legal duty pursuant to YCO 163.63 to appoint such an investigator. Accordingly, the writ, to the extent that it is predicated upon the appointment of an independent, neutral inve stigator, is dismissed. {¶5} With respect to the timeliness of the City’s response to the pu blic records request, the City asserts in its answer that the investigation was delayed due to Holcomb’s objection to the contents of his interview summary, which was a part of the investigative3

Case No. 20 MA 0089 report. The City has attached two affidavits to the pleading to establish Holcomb’s failure to return an amended copy of his statement. {¶6} In essence, the City argues in favor of dismissal of the mandam us to the extent that it is predicated upon the public records. However, as the City has attached the affidavits to the pleading, we construe that part of the pl eading to be a motion for summary judgment on Relator’s claim for statutory damages and a ttorneys’ fees. Accordingly, Relators shall file a response to the City’s motio n for summary judgment within thirty days of the issuance of this memorandum opinion. A reply brief may be filed by the City in accordance with Ohio Civ.R. 6(C)(1).

FACTS AND PROCEDURAL HISTORY

{¶7} The facts are taken from the amended verified complaint and the attachments thereto, which include the investigative report and the various statements taken during the City’s investigation. “Where documents are at tached or incorporated into the complaint, the face of the complaint to be evaluated i ncludes those documents.”
Adlaka v. Giannini , 7th Dist. Mahoning No. 05 MA 105, 2006-Ohio-4611. “[M]aterial incorporated in a complaint may be considered part of the compl aint for purposes of determining a Civ.R. 12(B)(6) motion to dismiss.” State ex rel. Crabtr ee v. Franklin Cty.
Bd. of Health , 77 Ohio St.3d 247, 249, fn. 1, 673 N.E.2d 1281 (1997)(various articles and public health studies attached to the complaint were considered in Rule 12 motion); see
also State ex. rel. GMS Mgt. Co., Inc. v. Vivo , 7th Dist. Mahoning No. 10 MA 1, 2010- Ohio-4184, ¶ 14 (written correspondence attached to the complai nt considered for the purposes of motion to dismiss). {¶8} At a Fire Department B turn meeting at the Youngstown Fire Depa rtment on October 16, 2019, Chief Finley announced a measure passed by the Safety Committee reducing the number of Battalion Chiefs from six to f our. Chief Finley explained that the Mayor had agreed to the measure and City Cou ncil had voted to implement the reduction. (Finley Interview, ¶ 2.) {¶9} According to Chief Finley, the firefighters in attendance react ed disrespectfully to the announcement. ( Id. , ¶ 3.) At some point, Holcomb raised his hand, in order to attract Chief Finday’s attention, then stated, “My mom knows every judge and4

Case No. 20 MA 0089 every attorney and if I get hurt I’m going to own you, the fuck ing Mayor and the fucking City.” ( Id ., ¶ 3.) {¶10} Captain Dave Cook was in attendance at the B turn meeting. Alt hough Captain Cook did not hear the substance of Holcomb’s comment, h e opined that Holcomb’s “loud speaking” was “clearly out of line.” (Cook Int erview, ¶ 2.) Later that day, Cook encouraged Holcomb to apologize to Chief Finley for the ou tburst. ( Id. , ¶ 3.) {¶11} Holcomb attempted to meet with Chief Finley the day after the m eeting, ostensibly to apologize, however, the Chief refused to speak wi th him. (Holcomb Interview, ¶ 3.) Based on Holcomb’s behavior at the B turn meet ing, Chief Finley charged Holcomb with insubordination. (Finley Interview, ¶ 6.) {¶12} Chief Finley, Holcomb, Battalion Chief Fred Beehler, and Smith attended the predisciplinary meeting on the insubordination charge held on October 28, 2019. Chief Finley expressed disappointment in Holcomb’s outburst based on their professional and personal relationships. Holcomb was one of Chief Finley’s firef ighters before Finley was appointed to Chief, and Finley had also worked with Holcomb’s f ather and knew the family. Chief Finley acknowledged that Holcomb was a good perso n and a good firefighter despite his outburst at the B turn meeting. (Holcomb Interview, ¶ 4, Finley Interview, ¶ 8.) {¶13} Smith lobbied Chief Finley to impose a verbal rather than a wri tten discipline, citing Holcomb’s effort to apologize the day after the meeting. Smith reasoned
that the matter could have been resolved but for the Chief’s re fusal to speak with Holcomb. Chief Finley responded to Smith that if he had talked with Holcomb the day after the B Turn meeting, he would have “put him through a wall .” (Finley Interview, ¶10.) {¶14} Chief Finley’s response relates back to an incident in February of 2012, when then-Captain Finley entered into an agreed discipline afte r he assaulted a subordinate, by physically removing the subordinate from a chai r and throwing him into a wall. The force employed by Finley was so great that the subor dinate ricocheted off one wall then perforated the drywall of another. (Am. Verified Comp lt., ¶ 9.) The agreed discipline reads, in pertinent part, “[Finley] is subject to te rmination for any aggressive conduct (including but not limited to hostile physical contact, threat, threatening behavior or intimidating words or acts) engaged in by him against co-wor kers, employees or the public over the next ten years.” (3/14/12 Agreed Discipline, p. 2.)5

Case No. 20 MA 0089 {¶15} According to Chief Finley, the expression “putting someone thro ugh a wall” has been parodied at the fire department in the years following the 2012 discipline. For instance, when Chief Finley installed an air conditioner for Ho lcomb, Holcomb joked that the Chief would “put him through a wall” if Holcomb did not com pensate him. (Finley Interview, ¶10.) {¶16} Battalion Chief Beehler concurred with Chief Finley’s character ization of the phrase, citing a previous interaction between Finley and anothe r member of the fire department where the phrase was invoked in jest. Beehler furth er stated that Finley’s statement at the predisciplinary meeting did not sound threaten ing. (Beehler Interview, ¶ 8-9.) {¶17} Holcomb ultimately agreed to a written reprimand. (Holcomb Inte rview, ¶ 5.) Chief Finley and Holcomb shook hands at the conclusion of the p redisciplinary meeting, and Chief Finley said, “fuck you,” which Holcomb interpreted to mean “something like ‘you
know better.’” Holcomb believed that the matter had been resol ved. ( Id. , ¶ 6-7.) {¶18} However, at some point after the meeting, Chief Finley refused to sign an application for a scholarship for firefighter training for Holc omb. Holcomb filed a grievance based upon the Chief’s refusal to sign the application, which w as ultimately withdrawn. (5/30/20 Investigative Report, p. 16.) Further, on the sole oc casion when Holcomb saw Chief Finley after the predisciplinary hearing and the two were not involved in the performance of their duties, Holcomb greeted the Chief but the Chief did not respond. (Holcomb Interview, ¶ 11.) {¶19} On December 4, 2019, December 30, 2019, and January 17, 2020, t he Union sent written requests to the City for a neutral third-par ty investigation of the events of October 28, 2019. (Am. Verified Compl., ¶ 12-14; 1/17/20 Le tter, p. 3.) The January 17, 2020 correspondence reads, in relevant part, “Given the Law Department’s public statement of support for Chief Finley after the FF Holcomb comp laint was made (see your letter dated December 12, 2019, re: ‘City of Youngstown Respons e to Vote of No Confidence’), [the Union] renews its reques t that a neutral thi rd-party conduct the investigation.” (1/17/20 Letter, p. 3). Neither the December 1 2 th letter nor Holcomb’s complaint is attached to the amended verified complaint.6

Case No. 20 MA 0089 {¶20} On January 24, 2020, City Law Director Jeffrey Limbian appointe d Assistant City Law Director Terry Grenga to conduct the investigation. Gr enga administered the investigation within the framework codified in YCO 163.63, capt ioned, “Violence and Bullying in the Workplace Policy, which reads, in pertinent par t:

(a) The City [ ] is committed to maintaining a workplace that is free from bullying, violence and/or threats of violence. Any violent beh avior that creates a climate of violence, hostility or intimidation will n ot be tolerated, regardless of its origin.

(b) This policy includes but is not limited to the following b ehaviors:

* * *

(2) Direct or indirect threats.

* * *

(8) High levels of conflict or tension within a work unit.

* * *

(h) The City will promptly and thoroughly investigate all repo rts of threats of violence or incidents of actual violence and of suspicious i ndividuals or activities. The identity and confidentiality of the individual making a report will be protected as much as possible. To maintain workplace sa fety and the integrity of its investigation, the City may suspend employ ees suspected of workplace violence or threats of violence, either with or wi thout pay, pending investigation. If it is determined that threatening beh avior has been exhibited or acts of violence were committed, the City will ini tiate an appropriate response. Anyone found to be responsible for threat s of or
actual violence or other conduct that is in violation of these guidelines will be subject to prompt disciplinary action up to and including te rmination of employment.7

Case No. 20 MA 0089 {¶21} Grenga also relied on certain procedural provisions in YCO 163. 53, captioned “Sexual Harassment Policy and Procedures,” and reads, in relevant part:

(e) Sexual Harassment Inter nal Investigation Procedure

(1) The information alleging sexual harassment or improper beh avior shall be given to a Department Head and the City Law Department.

(2) The City Law Department shall:

A. Notify the person accused of engaging in improper activity that the issue has been brought to the attention of the City Law Department; and

B. Notify the person bringing forth the issue that a prompt investigation will be conducted by an individual employed outsi de of the accused’s department, to be selected by the City Law Department.

(3) The investigator will:

A. Con duct an interview with the person who brought the matte r to the attention of management;

B. Interview the person who is alleged to have engaged in the improper activity. That person will be given an opportunity to explain his/her recollection of the matter, along with any other inform ation which that person wishes to provide;

C. Interview persons who have been identified as having some relevant information concerning any aspect of the occurrence(s) ;

D. Pr epare written statements containing the information obtained in each interview. This information will be provided to each p erson interviewed. The person interviewed will be asked to review th e8

Case No. 20 MA 0089 accuracy and completeness of the statement and return a signed copy to the investigator.

* * *

{¶22} Relators concede that the investigation was delayed while the U nion and the City debated whether a union representative could accompany Holcomb to his interview. After the Union and the City exchanged a series of letters addressing the subject, Holcomb appeared without union representation at an in terview conducted on February 11, 2020. Chief Finley was interviewed on January 29, 2020, Captain Cook was interviewed on February 20, 2020, with the interviews of Sm ith, and Battalion Chief Beehler (by telephone) conducted on February 24, 2020 and March 3, 2020, respectively. {¶23} According to all present at the predisciplinary meeting, Chief Finley stated that he would have “put Holcomb through a wall” if he had spoke n to him on October 17, 2019. In response to the foregoing statement, Holcomb told Gre nga that he acknowledged to Finley that he had the right to be angry about Holcomb’s conduct at the B turn meeting, but that Finley “should not have said [he would have put Holcomb through a wall if he spoke to him the following day].” (Holcomb Intervi ew, ¶ 5.) However, Holcomb conceded that he thought “everything was resolved and clear” af ter the meeting. ( Id. , ¶ 8.) {¶24} Nonetheless, during his interview with Grenga, Holcomb stated t hat he felt intimidated and harassed by Chief Finley’s words at the predisc iplinary meeting. Holcomb further stated that he feels intimidated “since Finley does not speak to him.” (Holcomb Interview, ¶ 12-13.) {¶25} Grenga prepared summaries of each interview and provided a copy for review by each of the respective interview subjects. The interv iew summaries were a part of the investigative report, and each summary includes a cover page requesting that the interview subject review the attached summary for accuracy and completeness and return a signed copy to the Law Department. The interview summaries in the investigative report from Cook and Smith are signed, however, the interview summarie s of Holcomb, Chief Finley, and Battalion Chief Beehler are not.9

Case No. 20 MA 0089 {¶26} The investigative report was issued on May 30, 2020. Grenga
recommended dismissal of Holcomb ’s complaint, as she opined tha t Chief Finley did not
violate YCO 163.63. {¶27} According to Grenga’s affidavit, which is attached to the City’ s amended answer, she notified Holcomb that his interview summary was com plete and ready for his review on February 28, 2020. Holcomb retrieved the interview s ummary from the Law Department, but did not sign and return it as requested. On Ma y 30, 2020, Grenga completed her investigation and prepared it for review. {¶28} On June 3, 2020, Holcomb contacted Grenga to inform her that he objected to certain portions of his interview summary. Grenga instructed Holcomb to return the interview summary with his objections noted. Holcomb never ret urned his interview summary. (Grenga Aff., ¶ 12-19.) {¶29} On June 4, 2020 and June 18, 2020, counsel for the Union sent correspondence to the City requesting an update on the status o f the investigation.
Included in the Union’s June 18 th letter is a request, pursuant to RC. 149.43, for copies
of:

1.) All correspondence (emails, memoranda, letters, etc.) to or from City officials concerning the investigation of intimidation and hara ssment of [Holcomb and Chief Finley], including any correspondence to or from [Chief Finley] concerning the alleged intimidation and
harassment.

2.) All witness statements and/or documents in the City’s pos session concerning the investigation of intimidation and harassment of [Holcomb] by [Finley].

3.) Any investigative report or summary prepared concerning th e investigation of intimidation and harassment of [Holcomb] by [C hief Finley].

(6/18/20 Letter, p.1, Am. Verified Compl., Exhibit 4.)10

Case No. 20 MA 0089 {¶30} Grenga and City Law Director Jeff Limbian aver that the copy of the investigative report sent in response to Relators’ public recor ds request was delayed due to Holcomb’s failure to return his interview summary. ( Id. at ¶ 18, Limbian Aff., ¶ 9-12). On August 31, 2020, after the original verified complaint for m andamus was filed in this original action, the City provided the investigative report and attachments thereto via electronic mail to counsel for Relators, despite the failure of Holcomb to return a signed copy of his interview summary. (Limbian Aff., ¶ 12.) {¶31} In a letter from the City to counsel for the Union dated August 31, 2020, Limbian explains that Grenga’s investigation was stalled when H olcomb notified her that he objected to portions of his interview summary, but he failed to return the interview summary with his objections. Limbian observes that City has “in ferred” from the mandamus action “that the Union (and [Holcomb]) is acquiescing to Holcomb’s [interview summary] as prepared by [Grenga].” (8/31/20 Letter, p. 2, Am. Verified Compl., Exhibit 5.) Limbian continues:

While the City had previously not released the investigation du e to Holcomb’s failure to act, the City hereby releases the report a s it was prepared and ready to send out [sic] in late May. Although the City did not release the investigation previously out of an abundance of cau tion and a consideration of fairness to argue right to review and sign his [interview summary], the City now releases the investigation due to the Un ion ‘s filing of a Mandamus action against the City seeking its release.

* * *

The City also attaches and releases all of the requested docume nts you sought in your June 18, 2020 public records request. While the se documents are now available, it would of course have been impos sible to release these records during a pending investigation in which t he records themselves were not yet public or final.

( Id. )11

Case No. 20 MA 0089 {¶32} In the amended verified complaint, Relators assert:

The City attempts to blame [Holcomb] for its untimely productio n of the properly requested records. However, [Holcomb] is not responsib le for the City’s production of public records. Additionally, the City nev er previously acknowledged the receipt of the public records request and coul d have provided the records regardless of [Holcomb’s] actions.

(Am. Verified Compl., ¶ 38.)

ANALYSIS

{¶33} We have jurisdiction to hear an original mandamus action pursua nt to Article IV, Section 3(B)(1) of the Ohio Constitution and R.C. 2731.02. Entitlement to a writ of mandamus requires the relators to demonstrate: (1) they have a clear legal right to the relief, (2) the respondent has a clear legal duty to provide th at relief, and (3) relators have no adequate remedy at law. State ex rel. Taxpayers for Westerville Schools v. Franklin Cty. Bd. of Elections , 133 Ohio St.3d 153, 2012-Ohio-4267, 976 N.E.2d 890, ¶ 12. Realtors carry the burden to establish the elements by clear an d convincing evidence to
obtain the writ. State ex rel. Doner v. Zody , 130 Ohio St.3d 446, 2011-Ohio-6117, 958 N.E.2d 1235 (2011). A writ of mandamus is an extraordinary rem edy which should be exercised with caution and issued only when the right is clear. State ex rel. Brown v. Ashtabula Cty. Bd. of Elections , 142 Ohio St.3d 370, 2014-Ohio-4022, 31 N.E.3d 596, ¶
11. {¶34} The Rules of Civil Procedure are generally applicable in origin al actions for extraordinary writs. State ex rel. Sautter v. Grey , 117 Ohio St.3d 465, 2008-Ohio-1444, 884 N.E.2d 1062, at ¶ 11. A court may dismiss a complaint sua sponte and without notice when the complaint is frivolous or the claimant obviously canno t prevail on the facts alleged in the complaint. State ex rel. Allen v. Goulding , 156 Ohio St.3d 337, 2019-Ohio858, 126 N.E.3d 1104 (2019), reconsideration denied, 155 Ohio S t.3d 1458, 2019-Ohio1759, 122 N.E.3d 218 (2019), citing State ex rel. Brooks v. O'Malley , 117 Ohio St.3d 385, 2008-Ohio-1118, 884 N.E.2d 42, ¶ 5.12

Case No. 20 MA 0089 {¶35} YCO 163.63 provides, in relevant part, “[t]he City will promptl y and thoroughly investigate all reports of threats of violence or in cidents of actual violence and of suspicious individuals or activities.” Relators do not disp ute that an investigation of Holcomb’s complaint was undertaken by the City. Accordingly, w e need not consider and do not decide whether Relators have a clear legal right to an i nvestigation, or the City has a clear legal duty to conduct an investigation. {¶36} Relators’ sole contention is that they have a clear legal right to the appointment of an independent, neutral investigator. Relators a rgue in the amended verified complaint that Grenga’s investigation “was not a true or fair investigation, as evidenced by the investigative report.” (Am. Verified Compl., ¶ 50.) The amended verified complaint continues, “Without an independent, neutral investiga tor, the City cannot adhere to requirements established in [YCO] 163.63.” ( Id ., ¶ 52.) {¶37} Conspicuously absent from the plain and unambiguous language of YCO 163.63(h) is a clear legal right to or a clear legal duty to ap point an independent investigator. “‘In construing a statute, we may not add or del ete words.’” State ex rel.
Cincinnati Bell v. Pub. Util. Comm ., 105 Ohio St.3d 177, 2005-Ohio-1150, 824 N.E.2d 68, at ¶ 32, quoting State v. Hughes , 86 Ohio St.3d 424, 427, 715 N.E.2d 540 (1999). The writ may not be issued to compel the observance of laws in gene ral, but only to command the performance of a specific act specially enjoined by law to be performed. State ex rel. Stanley v. Cook, 146 Ohio St. 348, 66 N.E.2d 207 (1946), paragraph seven of the syllabus. Accordingly, Relators are not entitled to the reques ted extraordinary relief in
mandamus. {¶38} Ohio's Public Records Act, R.C. 149.43, requires a public offic e, upon request, to make public records available for inspection or to provide copies of the records within a reasonable period of time. R.C. 149.43(B)(1). A “publ ic record” is a record “kept by any public office.” R.C. 149.43(A)(1). Mandamus is an approp riate remedy by which to compel compliance with the Public Records Act. R.C. 149.43(C )(1)(b); State ex rel. Physicians Commt. for Responsible Medicine v. Ohio State Univ. Bd. of Trustees , 108 Ohio St.3d 288, 2006-Ohio-903, 843 N.E.2d 174, ¶ 6. {¶39} Relators initially brought this suit to compel the City to resp ond to the Union’s public-records request. The City eventually provided t he records of the13

Case No. 20 MA 0089 investigation to the Union. This aspect of the case is therefo re moot. State ex rel. Cincinnati Enquirer, Div. of Gannett Satellite Info. Network, Inc. v. Dupuis , 98 Ohio St.3d 126, 2002-Ohio-7041, 781 N.E.2d 163, ¶ 8 (“In general, the prov ision of requested records to a relator in a public-records mandamus case renders the mandamus claim moot”). {¶40} The only issue raised by the Union in the amended verified comp laint with respect to the public records request is its entitlement to sta tutory damages and attorneys’ fees based upon the City’s alleged failure to produce the recor ds within a reasonable period of time. R.C. 149.43(B)(1) requires a public office or o fficial to promptly prepare all responsive records “within a reasonable period of time.” “Statu tory damages may be awarded if the public record has not been provided promptly.” State ex rel. Cincinnati Enquirer v. Deters , 148 Ohio St.3d 595, 2016-Ohio-8195, 71 N.E.3d 1076, ¶ 22; R.C

. 149.43(C)(2). {¶41} The phrase “reasonable period of time” is not defined in R.C. 1 49.43, “but ‘the determination of what is “reasonable” depends upon all the pertinent facts and
circumstances.’ ” State ex rel. Kesterson v. Kent State Univ. , 156 Ohio St.3d 13, 2018- Ohio-5108, 123 N.E.3d 887, ¶ 16, quoting Deters at ¶ 23. When a public official makes
records available for the first time after a mandamus suit is f iled, but before a court issues an order, the court may sometimes be called upon to determine w hether the official acted in bad faith. But that determination is relevant only to awards of attorney fees, R.C. 149.43(C)(3)(b)(iii), and court co sts, R.C. 149.43(C)(3)(a)(ii) , not to statutory damages. State ex rel. Stuart v. Greene , -- Ohio St.3d --, 2020-Ohio-3685, -- N.E.3d, --, ¶ 9. {¶42} Although the City captions its pleading “ANSWER to Amended Comp laint for Writ of Mandamus to Compel Compliance with R.C. 149.43 and [YCO] 163.63,” the pleading argues that the public records request is moot, as the requested documents were provided. In the alternative, the City argues that Relato rs’ public records request was fulfilled within a reasonable time period, based on the ave rments in the two affidavits attached to the pleading. {¶43} A court may rely on the caption of a pleading when ruling on it , but also has
the discretion to construe it based on its contents. Carter-Jones Lumber Co. v. JCA Rentals, L.L.C. , 7th Dist. Mahoning No. 12 MA 56, 2013-Ohio-863, ¶ 19. Becaus e the14

Case No. 20 MA 0089 City argues that any delay in fulfilling the public records req uest was due to Holcomb’s failure to return his amended statement to Grenga, based on the averments in the Grenga and Limbian affidavits, we construe that part of the answer to be a motion for summary judgment. We have previously observed:

[A] motion to dismiss is a procedural tool which tests the suff iciency of the complaint, not the sufficiency of the evidence. Tests of the su fficiency of the evidence are handled utilizing motions for summary judgment und er Civ.R. 56. It is permissible for a trial court to convert the Civ.R. 1 2(B)(6) motion to a motion for summary judgment, but it must do so using the para meters established by Civ.R. 56. Further, as this court has previously held, “where the motion to dismiss, which relies on evidence outside of the complaint, is granted without conversion and notification, the dismissal is r eversible.”
Scardina v. Ghannam , 7th Dist. Mahoning No. 04-MA-81, 2005-Ohio-3315, at ¶ 18.

Pfalzgraf v. Miley , 7th Dist. Monroe No. 19 MO 0006, 2019-Ohio-4920, ¶ 13. Havin g construed the latter portion of the City’s answer to be a motio n for summary judgment, we are obligated to notify the parties as well as provide an op portunity to Relators to respond to the evidence presented by the City.

CONCLUSION

{¶44} In summary, Relators do not have a clear legal right pursuant t o section 163.63 of the Youngstown Codified Ordinances (“YCO”) to the app ointment of an independent, neutral investigator, and the City does not have a clear legal duty pursuant to YCO 163.63 to appoint such an investigator. Accordingly, th e writ, to the extent that it is predicated upon the appointment of an independent, neutral i nvestigator, is dismissed. {¶45} The City seeks dismissal of the sole remaining issue – the time liness of the City’s response to the public records request – based on affida vits that are beyond the face of the amended verified complaint. As a consequence, we h ave construed the latter part of the City’s pleading to be a motion for summary judgment

.15

Case No. 20 MA 0089 {¶46} Accordingly, Relators shall file a response to the City’s motio n for summary within thirty days of the issuance of this memorandum opinion. A reply brief may be filed by the City in accordance with Ohio Civ.R. 6(C)(1).16

Case No. 20 MA 0089 Waite, J., concurring in part; dissenting in part. {¶47} While I agree with my colleagues that the underlying writ of ma ndamus seeking appointment of an investigator must be dismissed, I res pectfully dissent from the conclusion that the request for damages should not also be dism issed. According to R.C. 149.43(B)(1), public records must be provided “within a reasona ble time.” As noted by the majority, the term “reasonable time” is not defined, and th is term has become a fact specific analysis in the law. It is clear, however, the reques tor bears the burden of demonstrating that the public records request response was unre asonably delayed. State
ex rel. Kesterson v. Kent State Univ ., 156 Ohio St.3d 22, 2018-Ohio-5110, 123 N.E.3d 895, ¶ 19, State ex rel. Dispatch Printing Co. v. Johnson , 106 Ohio St.3d 160, 2005-Ohio4384, 833 N.E.2d 274, ¶ 44. {¶48} The following facts are already in this record and are relevant to this analysis. On February 28, 2020, Attorney Grenga informed Holco mb that his statement summary was complete and ready for his review and signature. ( 9/15/20 Answer to Amended Complaint, Grenga Aff.) Holcomb picked up the statemen t, however, he failed to return it with his signature. Attorney Grenga, still withou t Holcomb’s signed statement, concluded the investigation and prepared the (incomplete) repor t for review on May 30, 2020. On June 3, 2020, Holcomb informed Attorney Grenga that h e objected to portions of his statement summary, which had been in his possession sinc e approximately February 28, 2020. Attorney Grenga instructed Holcomb to note his objections and requested changes on the statement and return it to her. Holco mb failed to do so. Attorney Grenga averred that she delayed release of the investi gation report due to Appellant’s failure to return his signed statement. On June 18 , 2020, the Union sent a public records request for all correspondence related to the in cident, including the investigative report. On August 24, 2020, the Union filed the instant action. At the time the action was filed, Holcomb still had not complied with Attor ney Grenga’s instruction to return the signed statement with his noted objections so that s he could complete the report. Despite Holcomb’s continued failure to comply, the rec ords were released on August 31, 2020, one week after the action was filed. {¶49} The Union acknowledges that Holcomb did not comply with Attorne y Grenga’s request. The Union argues, however, that Holcomb is n ot responsible for the17

Case No. 20 MA 0089 production of public records and that the City “could have prov ided the records regardless of Firefighter Holcomb’s actions.” (9/21/20 Amended Complaint, p. 9.) Attached to the amended complaint is a letter from the City of Youngstown to Ho lcomb’s counsel. (9/21/20 Amended Complaint, Exh. 5.) In the letter, the City e xplained that the report had
not been released as of that date due to Holcomb’s failure to r eturn his signed statement. The letter states that on May 30, 2020, Attorney Grenga prepare d a draft of the investigation report without Holcomb’s signed statement. Howev er, on June 3, 2020, Holcomb contacted Attorney Grenga and noted his objection to po rtions of his statement summary, a summary he had received on February 28, 2020. “Atto rney Grenga
instructed Holcomb on what he would need to do in reference to this or any other disagreements he had with the statement summary. She directed Holcomb to review the summary statement and return it to her. Attorney Grenga, there fore, held off on releasing the investigation until Holcomb had reviewed and returned the s tatement summary.” (9/21/20 Amended Complaint, Exh. 2.) {¶50} Due to the filing of the instant action, the City released the report that it drafted on May 30, 2020 and noted that it “did not release the investigation previously out
of an abundance of caution and a consideration of fairness to H olcomb’s right to review and sign his statement summary, the City now releases the inves tigation due to the Union’s filing of a Mandamus action against the City seeking it s release.” (9/21/20 Amended Complaint, Exh 5, p. 2.) {¶51} Thus, the Union’s own exhibit establishes that the City was pre pared to complete and release the report months earlier, if Holcomb had provided his signed statement. As soon as Holcomb advised the City that he had obj ections or proposed changes to his statement, months after he initially received it , Holcomb was immediately advised how to note his objections or corrections in order to c omplete his statement. He does not dispute that he failed to take those steps. While Hol comb and his Union now claims that the City could have released the investigative repo rt without his signed statement, it is apparent from the record before us that Holcom b understood Attorney Grenga was waiting for his signed statement in order to fully c omplete the report. Because Holcomb’s own actions prevented the City from completin g the report, based on18

Case No. 20 MA 0089 the information already in this record it cannot be said that t he City’s delay was
unreasonable. {¶52} As the Union addressed all the facts necessary to fully decide this matter, especially in Exhibit 5 attached to their amended complaint, an d the City responded to these in its answer to the amended complaint, there is no need to convert the request for damages into a motion for summary judgment. Based on the recor d here, sufficient evidence exists to dismiss the writ of mandamus in its entirety

.

APPROVED:

CHERYL L. WAITE, JUDGE19

Case No. 20 MA 0089 {¶53} Costs taxed against Relator. Final order. Clerk to serve copi es of this decision and judgment entry pursuant to the civil rules.

JUDGE DAVID A. D’APOLITO

JUDGE GENE DONOFRIO

JUDGE CHERYL L. WAITE