Mark Gokavi Staff Writer
Monday, March 19, 2018
A Montgomery County Common Pleas Court judge denied a preliminary injunction sought by a Dayton resident who alleged an Ohio Open Meetings (OMA) Act violation because he was denied in his efforts to join a bus tour of Dayton Public Schools facilities.
Judge Richard Skelton ruled Monday in a 7-page decision that Dayton resident David Esrati did not meet the burden of proof about the bus tour containing substantive recommendations or discussion regarding potential closures of school buildings.
Esrati said he plans to continue the suit.
Skelton did write that the 20-member School Facilities Task Force formed to help Acting Superintendent Elizabeth Lolli was a public body — disagreeing with DPS and Dayton city attorneys.
“The court rejects the argument of DPS that the Task Force was only an advisory group for the superintendent and was not a ‘public body’ itself,” Skelton wrote, later adding: “Pretending that the Task Force, including three members of the Board, was only for the Board’s employee would allow a simple subterfuge to avoid the OMA.”
A Dayton Board of Education meeting that includes a potential vote on a school closing proposal is scheduled for Tuesday. An injunction could have stopped or delayed that vote.
“The burden is on the plaintiff to prove that such deliberative discussion occurred during the bus tour and was used by the Board (of Education) in proposing its formal action,” Skelton wrote. “The plaintiff did not produce the first witness who offered any proof that a deliberative or any other discussion was had on the bus tour at issue.”
Skelton wrote that the court “has no basis to find that plaintiff has shown he is likely to succeed on his claimed violation of the OMA at the trial on the merits.
Esrati said Skelton’s decision “makes no sense” and that he received legal advice that he should — and plans to — take the case to trial, currently scheduled for July 11.
“He said clearly they were a public body, and how I’m supposed to prove what they discussed or didn’t discuss is irrelevant because they’re not allowed to meet in private unless it’s for matters of executive session,” Esrati said, later adding: “There’s no way of me proving it because I wasn’t in the bus or in the school or anything else. And that’s a violation.”
Esrati filed the lawsuit without an attorney. He contends he was not allowed to attend a February bus tour of Dayton schools during which task force members went into schools until district attorneys advised them to cancel remaining stops.
On Thursday, Esrati questioned Lolli and also was cross-examined by DPS attorney Brian Wildermuth during the nearly 2½-hour, wide-ranging hearing.
Wildermuth did not immediately return a message seeking comment.
Wildermuth, who has said the task force wasn’t a public body and isn’t subject to the open meetings laws, argued in a post-hearing brief that the group was not a decision-maker and didn’t reach any consensus or specific recommendations.
“Plaintiff had the burden of proof,” Wildermuth wrote. “He did not carry that burden.”
Esrati said the board’s actions are a big part of the district’s problem.
“This school board is not to be trusted by anyone at any time for anything, if this is the way they want to conduct business,” Esrati said.