IN THE COURT OF COMMON PLEAS

CUYAHOGA COUNTY, OHIO

AKRAM BOUTROS, M.D. ) Case No.:

1684 Lorain Avenue )
Cleveland, Ohio 44113, ) Judge
)
Plaintiff, )
) COMPLAINT FOR VIOLATIONS
v. ) OF OHIO OPEN MEETINGS ACT
) (With Jury Demand)
THE METROHEALTH SYSTEM )
BOARD OF TRUSTEES, )
VANESSA L. WHITING, J.B. )
SILVERS, INAJO DAVIS )
CHAPPELL, JOHN CORLETT, )
MAUREEN DEE, JOHN M. )
HAIRSTON, JR., ROBERT )
HURWITZ, TERRY MONNOLLY, )
JOHN M. MOSS, E. HARRY )
WALKER )
2500 MetroHealth Drive )
Cleveland, Ohio 44109 )
)
and )
)
THE METROHEALTH SYSTEM )
2500 MetroHealth Drive )
Cleveland, Ohio 44109 )
)
Defendants. )

For his complaint against Defendants the MetroHealth Board of Trustees,

Vanessa L. Whiting, J.B. Silvers, Inajo Davis Chappell, John Corlett, Maureen Dee,

John M. Hairston, Jr., Robert Hurwitz, Terry Monnolly, John M. Moss, E. Harry

Walker and The MetroHealth System, Plaintiff Akram Boutros, M.D. states and

alleges as follows:
 INTRODUCTION

1. The MetroHealth Board of Trustees violated the law in its hiring of a

replacement for outgoing Chief Executive Officer, Plaintiff Akram Boutros. When Dr.

Boutros brought the illegality to the attention of Board Chair Vanessa L. Whiting,

she caused the Board to retaliate by trumping up bogus charges against him for

taking supposedly unauthorized bonuses and then terminating his employment on

that basis.

2. Dr. Boutros’ illegal firing gives him claims against MetroHealth, its

Board, and certain of its members. He will file a separate lawsuit to recover damages

for this retaliation and other misconduct.

3. This lawsuit addresses the Board’s repeated violations of R.C. 121.22,

Ohio’s Open Meetings Law, in orchestrating and executing Dr. Boutros’ discharge.

The Board flouted the statute’s requirements by secretly hiring counsel to investigate

Dr. Boutros and to produce a “report,” by allowing that investigation and its

culminating “report” to proceed without proper authorization, and by contemplating

and implementing his termination without the mandatory public notice and

deliberation.

4. These violations of the Open Meetings Law follow a pattern of non-

compliance with the statute that the Board sustained over the course of at least the

last two years.

5. Ohio law holds as a nullity any action taken by a public body in violation

of the Open Meeting Law. This rule invalidates the findings of the unlawful

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investigation of Dr. Boutros undertaken by the attorneys the MetroHealth Board

improperly and secretly hired. It also nullifies the Board’s unlawful termination of

Dr. Boutros’ employment.

6. Dr. Boutros brings this lawsuit under R.C. 121.22 for declaratory and

injunctive relief to rescind the actions taken by the Board in violation of the statute

and to require the Board to comply with all statutory requirements in the future. Dr.

Boutros also seeks an award of civil forfeiture and his court costs and reasonable

attorney fees pursuant to the statute.

PARTIES

7. Plaintiff Akram Boutros, M.D. was the President and CEO of Defendant

MetroHealth System from 2013 until November 21, 2022. He has a 25-year record of

successful hospital leadership at academic medical centers, community hospitals and

specialty hospitals. Under Dr. Boutros’ leadership, the MetroHealth System

underwent an unprecedented positive transformation in virtually all respects.

8. Defendant The MetroHealth System Board of Trustees, in accordance

with applicable provisions of the Ohio Revised Code, has the authority and

responsibility for the management and control of the MetroHealth System. It can

take action only during public meetings, and it cannot delegate any of its

responsibilities or actions to any committee of the Board. It can act only through

resolutions passed during public meetings. Current members of the Board of Trustees

are Chair Vanessa L. Whiting, Vice Chair J.B. Silvers, Inajo Davis Chappell, John

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Corlett, Maureen Dee, John M. Hairston, Jr., Robert Hurwitz, Terry Monnolly, John

M. Moss and E. Harry Walker.

9. Defendant The MetroHealth System is an independent subdivision of

Cuyahoga County Government, and as such, is considered a public agency subject to

Ohio’s Open Meetings Act and Ohio ethics law. It was established as a county hospital

and operates and is governed by Chapter 339 of the Ohio Revised Code. It is the

governing authority for an integrated system of health care facilities and programs

operated by the organization.

FACTUAL BACKGROUND

Ohio’s Open Meetings Act

10. Ohio’s Open Meetings Act (“OMA” or “the act”), R.C. 121.22, requires

public officials to take official action and to conduct all deliberations upon official

business only in open meetings unless the subject matter of the meeting is specifically

excepted by law, and only in accordance with the strict terms of the statute.

11. According to the Ohio Attorney General, the Open Meetings Act applies

to more than “meetings” held in the traditional sense of the word – that is, those held

in a meeting room with the public body at the front addressing the public. Instead,

the OMA asks whether the majority of the members have held or will hold a

prearranged discussion or deliberation of public business. If the answer is “yes,” the

OMA applies to those discussions or deliberations and the public body must comply

with the act.

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 12. If, for example, members of a public body such as the MetroHealth Board

of Trustees are discussing public business via email or text, the law can consider that

to be a “meeting,” subject to the legal standards of the OMA. A public body cannot

circumvent the Open Meetings Act by holding back-to-back or serial meetings

attended by fewer than a majority of its members, with the same topics of public

business discussed at each. Such deliberate “round-robin” meetings violate the OMA.

13. The OMA recognizes two types of meetings: regular meetings and

special meetings, and the rules that apply to each differ. Nevertheless, under the act

“[a]ll meetings of any public body are declared to be public meetings open to the public

at all times.” R.C. 121.22(C). Pursuant to R.C. 121.22(F), a public body such as the

MetroHealth Board of Trustees is required “to establish a reasonable method

whereby any person may determine the time and place of all regularly scheduled

meetings and the time, place, and purpose of all special meetings.” (emphasis added)

14. Pursuant to R.C. 121.22(F), the “purpose” of a special meeting must be

clearly set forth in the required notice of the special meeting, and the special meeting,

along with any executive session during the special meeting, must adhere to the

noticed “purpose.”

15. Article V, Section 4 of the MetroHealth Board of Trustees Bylaws also

restricts the Board’s ability to conduct business at a special meeting other than in

conformance with the notice. It provides:

Special meetings of the Board shall be held upon the call of

the Chairperson of the Board or upon the request, in
writing, of any three Trustees. Pursuant to such notice, the
Chairperson shall call a special meeting of the Board

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 within ten days of the receipt of such request. Written
notice of a special meeting shall be transmitted to each
Trustee at least forty-eight (48) hours before the date of
such special meeting. This notice shall state the business
for which the special meeting has been called, and no
business other than that stated in the notice shall be
transacted at such special meeting.

(emphasis added)

16. A public body such as the MetroHealth Board of Trustees may exclude

the public from discussions and deliberations that are held in “executive session,” but

only under strict procedures and guidelines. Section 121.22(G) provides, in relevant

part:

Except as provided in divisions (G)(8) and (J) of this

section, 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 an
executive session and only at a regular or special meeting
for the sole purpose of the consideration of any of the
following matters:

(1) To consider the appointment, employment,

dismissal, discipline, promotion, demotion, or
compensation of a public employee or official, or the
investigation of charges or complaints against a public
employee, official, licensee, or regulated individual, unless
the public employee, official, licensee, or regulated
individual requests a public hearing. Except as otherwise
provided by law, no public body shall hold an executive
session for the discipline of an elected official for conduct
related to the performance of the elected official's official
duties or for the elected official's removal from office. If a
public body holds an executive session pursuant to division
(G)(1) of this section, the motion and vote to hold that
executive session shall state which one or more of the
approved purposes listed in division (G)(1) of this section
are the purposes for which the executive session is to be
held, but need not include the name of any person to be
considered at the meeting.

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 * * *
(3) Conferences with an attorney for the public body
concerning disputes involving the public body that are the
subject of pending or imminent court action;

* * *
(5) Matters required to be kept confidential by
federal law or regulations or state statutes;

* * *
(7) In the case of a county hospital operated
pursuant to Chapter 339. of the Revised Code, a joint
township hospital operated pursuant to Chapter 513. of the
Revised Code, or a municipal hospital operated pursuant
to Chapter 749. of the Revised Code, to consider trade
secrets, as defined in section 1333.61 of the Revised Code;

* * *
If a public body holds an executive session to consider any
of the matters listed in divisions (G)(2) to (8) of this section,
the motion and vote to hold that executive session shall
state which one or more of the approved matters listed in
those divisions are to be considered at the executive
session.

17. The requirements of the OMA are strict and the law expressly provides

that “[a] resolution, rule, or formal action of any kind is invalid unless adopted in an

open meeting of the public body.” R.C. 121.22(H). Likewise,

A resolution, rule, or formal action adopted in an open

meeting that results from deliberations in a meeting not
open to the public is invalid unless the deliberations were
for a purpose specifically authorized in division (G) or (J) of
this section and conducted at an executive session held in
compliance with this section. A resolution, rule, or formal
action adopted in an open meeting is invalid if the public
body that adopted the resolution, rule, or formal action
violated division (F) of this section.

R.C. 121.22(H).

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 18. The law further provides that there is no “cure” or “ratification” of an

action taken in violation of the OMA. Moreover, a public body such as the

MetroHealth Board of Trustees cannot immediately follow presentations and

discussions held behind closed doors in executive session with an open vote. This is

so because taking formal action as contemplated by the OMA involves more than

merely tallying votes on an issue. It involves all of the discussions and deliberations

on that issue leading up to the vote, and that deliberative process must be

transparent to the public to ensure accountability. The OMA prevents a public body

from acting upon fruit of the poisonous tree.

Defendant MetroHealth Board of Trustees’ Repetitive Violations of The Open

Meetings Act Under the Leadership of Chair Whiting

19. The MetroHealth Board of Trustees has a long history of violating the

OMA under the leadership of Chair Whiting.

20. At regular meetings held on January 27, 2021, March 24, 2021, May 26,

2021, August 25, 2021, October 27, 2021, November 22, 2021, January 26, 2022,

February 23, 2022, March 23, 2022, May 25, 2022, June 22, 2022, August 24, 2022,

October 26, 2022, and November 21, 2022, the Board held executive sessions in

violation of R.C. 121.22(G) by referencing “laundry lists” of reasons for the executive

session that include matters not specifically authorized by the statute such as

“personnel matters,” “information subject to the attorney-client privilege” and

“matters required to be kept confidential by law.” None of these stated reasons

comports with the strict requirements of R.C. 121.22(G).

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 21. At special meetings held May 2, 2022, July 20, 2022, July 22, 2022,

September 6, 2022, October 20, 2022,1 November 2, 2022 and November 9, 2022, the

Board likewise held executive sessions in violation of R.C. 121.22(G) by referencing

“laundry lists” of reasons for the executive session that included matters not

specifically authorized by the statute, in particular, “information subject to the

attorney-client privilege,” which is not an enumerated, proper purpose under R.C.

121.22(G).

22. Committees of the MetroHealth Board of Trustees convened executive

sessions on February 10, 2021, February 24, 2021, April 28, 2021, November 10, 2021,

January 26, 2022, February 9, 2022, February 14, 2022, March 7, 2022, March 23,

2022, April 4, 2022, May 11, 2022, May 12, 2022, June 6, 2022, June 22, 2022, August

10, 2022, October 12, 2022, October 26, 2022, all in violation of R.C. 121.22(G) by

including among the reasons for executive session such impermissible grounds as

“personnel matters,” “information subject to the attorney-client privilege” and

“matters required to be kept confidential by law.”

23. The Board also violated the OMA through its committees, by failing to

adhere to the stated purposes of calling executive session. For example, the March

24, 2021 minutes of the Governance Committee recount that “Ms. Whiting stated the

1The special meeting of the Board held on October 20, 2022 was scheduled on October
19, 2022. This violated Article V, Section 4 of the MetroHealth Board of Trustees
Bylaws for failing to provide the required notice. Per the bylaws, “[w]ritten notice of
a special meeting shall be transmitted to each Trustee at least forty-eight (48) hours
before ethe date of such special meeting.” In the past two years, all special meetings
were called “upon the call of the Chairperson of the Board,” Vanessa Whiting.
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Governance Committee met in Executive Session for trade secrets, noting there was

discussion surrounding succession planning for the Board and a matrix to evaluate

the needs of the Board.” These alleged “trade secrets” were not among the reasons

stated for the executive session at issue.

24. The MetroHealth Board of Trustees has also engaged in a pattern and

practice of violating R.C. 121.22(F), as well as Article V, Section 4 of its own Bylaws.

The special meetings of May 2, 2022, July 20, 2022, July 22, 2022, September 6, 2022,

October 20, 2022, November 2, 2022 and November 9, 2022, all identified as reasons

to go into executive session at least one purpose that is not shown as the purpose of

the special meeting on the notice issued to the public.

The Board Of Trustees’ Violations Of The Open Meetings Act Pervades The Hiring
Of Plaintiff’s Replacement As CEO

25. After Plaintiff announced that he would be leaving MetroHealth at the

end of 2022, the Board of Trustees undertook a search for a new CEO. That process

commenced on February 14, 2022 and involved a Board of Trustees Search

Committee. All the work of the Search Committee was conducted in Executive

Session, and every such Executive Session violated R.C. 121.22(G).

26. The MetroHealth Board of Trustees Search Committee convened

executive sessions on February 14, 2022, February 28, 2022, March 7, 2022, March

21, 2022, April 4, 2022, May 2, 2022, May 16, 2022 and June 6, 2022. In each instance,

the Search Committee claimed that the purpose for executive session was to discuss

“information required to be kept confidential by law.” That is not a proper purpose.

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 27. Section 121.22(G)(5) does refer to “[m]atters required to be kept

confidential by federal law or regulations or state statutes.” The MetroHealth Board

of Trustees, however, has never explained or identified what federal law or

regulation, or what Ohio statute, requires deliberations concerning the hiring of a

county hospital system CEO to be kept confidential.

28. The search process was further tainted because the MetroHealth Board

of Trustees never engaged in public discussion or passed a resolution approving the

hiring of consultants to support the search process for a new CEO. Instead, Board

Chair Whiting signed all the contracts with consultants in violation of the act and in

violation of Article XI, Section 1 of the MetroHealth Board of Trustee Bylaws, which

states that

The President and Chief Executive Officer shall act as the

duly authorized representative of the Board in all matters
in which the Board has not formally designated some other
person to so act.

Dr. Boutros did not authorize or sign agreements with either of the Committee’s

search consultants and did not delegate this authority to any other executive. Under

the circumstances, Chair Whiting unlawfully obligated The MetroHealth System to

hundreds of thousands of dollars of expense without proper Board authorization or

Board resolution.

29. When Dr. Boutros became aware of these illegal proceedings

surrounding the search for his successor, in late July or early August 2022, he alerted

Chair Whiting, Board member E. Harry Walker and MetroHealth Co-General

Counsel Laura McBride. Dr. Boutros believed it was his duty to bring to light any

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unlawful or unethical conduct at the institution, and to ensure that the new CEO was

lawfully engaged.

30. Within days after Dr. Boutros challenged her on these matters, Board

Chair Whiting took it upon herself to begin questioning certain bonuses that Dr.

Boutros had been receiving since 2018 along with hundreds of other MetroHealth

executives and managers and which were approved by the Board.

31. Dr. Boutros was not merely raising some technical violation. The Open

Meeting Act ensures that the public can review and scrutinize the actions of tax-

funded entities like MetroHealth. The Board’s noncompliance jeopardized both the

legitimacy and validity of any ensuing action it took in hiring a new CEO. In calling

Chair Whiting out for the Board’s statutory breaches, Dr. Boutros was protecting the

Board from its own incompetence while vindicating the public interest.

32. Whiting apparently cared about neither. Rather than requiring

adherence to the Open Meetings Act, she chose to attack the messenger who alerted

her to the problem. The cause-and-effect connection between the two incidents is

inescapable: Whiting attempted to whip up a controversy from contemporaneously

created MetroHealth business records which at all times had been available to the

Board of Trustees concerning bonus payments which the Board had, in fact, approved

by resolution.

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 The Board Of Trustees’ Violations Of The Open Meetings Act Pervade Their
“Investigation” Of Plaintiff’s Compensation

33. The MetroHealth Board of Trustees claims to have launched an

“investigation” into the Plaintiff’s compensation, including hiring an attorney and

law firm to conduct the investigation, but did so entirely in violation of the OMA.

34. In a meeting with Dr. Boutros on October 11, 2022, Board Chair Whiting

claimed that the law firm of Mansour Gavin LPA had already been retained to

conduct an internal investigation into the compensation issue. According to Whiting,

however, she was dissatisfied with the results of their work and she shopped for other

counsel.

35. On October 14, 2022, attorney John McCaffrey of the law firm Tucker

Ellis LLP, sent an email to an attorney for Dr. Boutros in which McCaffrey claims to

“represent a Special Investigation Committee of the [MetroHealth] Board.”

36. Dr. Boutros’ counsel responded to McCaffrey on October 15, 2022,

stating “At this time Dr. Boutros is willing to meet with you after you provide me

with the Board of Trustees’ action authorizing your indicated review.”

37. McCaffrey’s response, also on October 15, 2022, confirmed a violation of

the OMA. He wrote:

There is no formal written “Board of Trustee Action”

authorizing the engagement of legal counsel to review the
issue of compensation paid to the CEO over the past
several years. The Board has inherent authority to engage
legal counsel (and in fact has previously engaged my firm
on matters). The Board has the authority to conduct such
a review without any written action.

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 38. Not only was there no “formal written” action authorizing the hiring of

legal counsel, but there was no notice of any meeting where the establishment of a

“Special Investigation Committee” was to be discussed or presented, and there are no

minutes of any meeting – or record of any other kind – reflecting the establishment

or formation of such a committee, what it was charged with investigating, or who

served on it.

39. Dr. Boutros requested the names of the members of the so-called

“Special Investigation Committee” at a public meeting on November 9, 2022, and the

MetroHealth Board of Trustees summarily denied his request.

40. The MetroHealth Board of Trustees held a special meeting on October

20, 2022 whose stated purpose was “to consider the employment and compensation

of a public employee.” No other purpose for the meeting was stated.

41. At that meeting, the Board of Trustees entered executive session, in

violation of R.C. 121.22(G), for the purpose of considering the “appointment,

employment, discipline or compensation of a public employee” and “information

subject to the attorney-client privilege.” The Executive Session violated R.C.

121.22(G) because it did not conform to the stated purpose of the special meeting,

because the executive session was not considering the “appointment” or the

“discipline” of a public employee, and because “information subject to the attorney-

client privilege” is not a proper purpose under the statute.

42. McCaffrey, whose retention is a legal nullity, was present at and

participated in the illegal Executive Session of October 20, 2022. McCaffrey admits

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at page 7 of his November 19, 2022 “Report to the Board of Trustees of the

MetroHealth System,” released to the public on November 25, 2022, that “[t]he BOT

was provided regular updates as to the progress of the ongoing investigation during

special meetings conducted in executive session…. [including on] Oct. 20th, Oct. 26th,

Nov. 2nd and Nov. 9th.”

43. On October 26, 2022, the Board of Trustees held a regular meeting and

voted to enter executive session, in violation of R.C. 121.22(G), for the purpose of

considering the “appointment, employment, discipline or compensation of a public

employee” and “information subject to the attorney-client privilege.” In fact, the

appointment of a public employee was not under consideration, and information

subject to the attorney client privilege is not a proper purpose under the act.

44. McCaffrey, as alleged above by his own admission, was present at and

participated in this unlawful executive session.

45. On November 2, 2022, the Board of Trustees held a special meeting

whose stated purpose was “to consider the employment and compensation of a public

employee.” No other purpose was stated.

46. At that meeting, the Board of Trustees entered executive session, in

violation of R.C. 121.22(G), for the purpose of considering the “appointment,

employment, discipline and compensation of a public employee” and “information

subject to the attorney-client privilege.” The Executive Session violated R.C.

121.22(G) because it did not conform to the stated purpose of the special meeting,

because the executive session was not considering the “appointment” or the

15
“discipline” of a public employee, and because “information subject to the attorney-

client privilege” is not a proper purpose under the statute.

47. McCaffrey, as alleged above by his own admission, was present at and

participated in this unlawful executive session.

48. On November 9, 2022, the Board of Trustees held a special meeting

whose stated purpose was “to consider the employment and compensation of a public

employee.” No other purpose was stated.

49. At that meeting, the Board of Trustees entered executive session, in

violation of R.C. 121.22(G), for the purpose of “receiving the benefit of matters

required to be kept confidential pursuant to the attorney-client privilege.” The

Executive Session violated R.C. 121.22(G) because it did not conform to the stated

purpose of the special meeting and because no federal law or regulation or state

statute required confidentiality for matters involving the attorney-client privilege.

50. McCaffrey, as alleged above by his own admission, was present at and

participated in this unlawful executive session.

51. The Board of Trustees’ illegal meetings and McCaffrey’s illegal

participation culminated in McCaffrey and Tucker Ellis LLP’s illegal “Report to the

Board of Trustees of the MetroHealth System” which was finalized and delivered to

the Board on November 19, 2022.

52. Any actions taken in reliance on the illegal report, or on McCaffrey’s

illegal presentations and participation in Board of Trustee meetings concerning the

continued employment of Plaintiff Akram Boutros, are void and a nullity.

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 53. That includes the November 21, 2022 regular meeting at which the

Board of Trustees voted to terminate Dr. Boutros’ employment “for cause.” Beginning

at approximately 4:31 p.m. during that meeting, the Board entered executive session.

Beginning at approximately 4:46 p.m., McCaffrey entered the executive session,

presumably to present his report. Within an hour, the Board had voted to terminate

Dr. Boutros’ employment, adopting a resolution that had already been prepared in

advance. On information and belief, the Board deliberated on this matter entirely in

executive session, in violation of the law.

COUNT ONE
(Violation of R.C. 121.22(A) and (H) – Purported Hiring of John McCaffrey)

54. Plaintiff incorporates by reference all the foregoing paragraphs of the

Complaint as if fully re-written herein.

55. Defendant MetroHealth Board of Trustees constitutes a “public body” as

defined in R.C. 121.22(B)(1).

56. As members of a “public body,” the individual Defendants, when acting

in their official capacity, are subject to the requirements and mandates of R.C. 121.22.

57. On or prior to October 14, 2022, Defendant Board of Trustees purported

to hire John McCaffrey of Tucker Ellis LLP to assist in or conduct an investigation

into Plaintiff Akram Boutros’ compensation as CEO of The MetroHealth System.

58. Defendant Board of Trustees took this action without noticing a

meeting, without passing a resolution for such purpose as required by R.C. 121.22(A)

and (H), and without otherwise complying in any respect with the requirements of

R.C. 121.22.

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 59. In fact, the Board of Trustees never scheduled a meeting for the hiring

of McCaffrey and Tucker Ellis LLP until November 21, 2022.

60. The Executive Meeting of November 12, 2022 was the only Board of

Trustee meeting scheduled between November 11, 2022, when Board Chair Whiting

and Vice Chair J.B. Silvers met with Dr. Boutros, and November 14, 2022, when

McCaffrey announced to Dr. Boutros’ counsel that he and Tucker Ellis LLP had been

hired by the Board. The agenda for that November 12, 2022 Executive Committee

meeting reveals that the Executive Committee did not recommend or approve the

hiring of McCaffrey and Tucker Ellis LLP. Under the heading

“Recommendation/Resolution Approvals” on the November 12, 2022 Executive

Committee Agenda, it states “None.”

61. As a consequence of the Board’s violation of Ohio’s Open Meetings Act,

McCaffrey and Tucker Ellis LLP were not lawfully engaged to assist in or conduct

any investigation into Plaintiff’s compensation.

62. Any actions taken by McCaffrey or Tucker Ellis LLP while unlawfully

engaged by The Board of Trustees are void and a nullity. They are fruit from a

poisonous tree and are of no legal value.

COUNT TWO
(Violation of R.C. 121.22(A) and (H) – Purported Establishment of Board
Sub-Committee to Investigate Plaintiff’s Compensation)

63. Plaintiff incorporates by reference all the foregoing paragraphs of the

Complaint as if fully re-written herein.

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 64. Defendant MetroHealth Board of Trustees constitutes a “public body” as

defined in R.C. 121.22(B)(1).

65. As members of a “public body,” the individual Defendants, when acting

in their official capacity, are subject to the requirements and mandates of R.C. 121.22.

66. On or prior to October 14, 2022, Defendant Board of Trustees purported

to establish a “Special Investigation Committee” to investigate Plaintiff Akram

Boutros’ compensation.

67. The Board of Trustees established this committee without following any

of the requirements of the Open Meetings Act. The committee exists with no evidence

that it was discussed, presented or authorized at any meeting of the Board or any

properly constituted Committee of the Board, and with no record of what it was

authorized to investigate and who serves on it.

68. As a consequence of the Board’s violation of Ohio’s Open Meetings Act,

the “Special Investigation Committee” was not lawfully constituted.

69. Any actions taken by the “Special Investigation Committee” are void and

a nullity.

COUNT THREE
(Violation of R.C. 121.22(G) – Executive Session at Regular Meetings)

70. Plaintiff incorporates by reference all the foregoing paragraphs of the

Complaint as if fully re-written herein.

71. Defendant MetroHealth Board of Trustees constitutes a “public body” as

defined in R.C. 121.22(B)(1).

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 72. As members of a “public body,” the individual Defendants, when acting

in their official capacity, are subject to the requirements and mandates of R.C. 121.22.

73. At regular meetings held on January 27, 2021, March 24, 2021, May 26,

2021, August 25, 2021,October 27, 2021, November 22, 2021, January 26, 2022,

February 23, 2022, March 23, 2022, May 25, 2022, June 22, 2022, August 24, 2022,

October 26, 2022, and November 21, 2022, Defendant MetroHealth Board of Trustees

held executive sessions in violation of R.C. 121.22(G), as specifically alleged above,

and by referencing “laundry lists” of reasons for the executive session that include

matters not specifically authorized by the statute such as “personnel matters,”

“information subject to the attorney-client privilege” and “matters required to be kept

confidential by law.”

74. None of these stated reasons comports with the strict requirements of

R.C. 121.22(G).

75. Pursuant to R.C. 121.22(H), any resolution, rule or formal action of any

kind taken by the MetroHealth Board of Trustees in violation of R.C. 121.22(G) is

invalid.

COUNT FOUR
(Violation of R.C. 121.22(G) – Executive Session at Special Meetings)

76. Plaintiff incorporates by reference all the foregoing paragraphs of the

Complaint as if fully re-written herein.

77. Defendant MetroHealth Board of Trustees constitutes a “public body” as

defined in R.C. 121.22(B)(1).

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 78. As members of a “public body,” the individual Defendants, when acting

in their official capacity, are subject to the requirements and mandates of R.C. 121.22.

79. At special meetings held May 2, 2022, July 20, 2022, July 22, 2022,

September 6, 2022, October 20, 2022, November 2, 2022 and November 9, 2022,

Defendant MetroHealth Board of Trustees held executive sessions in violation of R.C.

121.22(G) , as specifically alleged above, and by referencing “laundry lists” of reasons

for the executive session that included matters not specifically authorized by the

statute, in particular, “information subject to the attorney-client privilege,” which is

not an enumerated, proper purposes under R.C. 121.22(G).

80. Pursuant to R.C. 121.22(H), any resolution, rule or formal action of any

kind taken by the MetroHealth Board of Trustees in violation of R.C. 121.22(G) is

invalid.

COUNT FIVE
(Violation of R.C. 121.22(G) – Executive Session at Committee Meetings)

81. Plaintiff incorporates by reference all the foregoing paragraphs of the

Complaint as if fully re-written herein.

82. Defendant MetroHealth Board of Trustees constitutes a “public body” as

defined in R.C. 121.22(B)(1).

83. As members of a “public body,” the individual Defendants, when acting

in their official capacity, are subject to the requirements and mandates of R.C. 121.22.

84. Committees of Defendant MetroHealth Board of Trustees convened

executive sessions on February 10, 2021, February 24, 2021, April 28, 2021,

November 10, 2021, January 26, 2022, February 9, 2022, February 14, 2022, March

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7, 2022, March 23, 2022, April 4, 2022, May 11, 2022, May 12, 2022, June 6, 2022,

June 22, 2022, August 10, 2022, October 12, 2022, October 26, 2022, all in violation

of R.C. 121.22(G), as specifically alleged above, and by including among the reasons

for executive session such impermissible grounds as “personnel matters,”

“information subject to the attorney-client privilege” and “matters required to be kept

confidential by law.”

85. The MetroHealth Board of Trustees also violated the OMA through its

committees by failing to adhere to the stated purposes of calling executive session.

86. The March 24, 2021 minutes of the Governance Committee report that

“Ms. Whiting stated the Governance Committee met in Executive Session for trade

secrets, noting there was discussion surrounding succession planning for the Board

and a matrix to evaluate the needs of the Board.” These alleged “trade secrets” were

not among the reasons stated for the executive session at issue, in violation of R.C.

121.22(G).

87. Pursuant to R.C. 121.22(H), any resolution, rule or formal action of any

kind taken by the MetroHealth Board of Trustees in violation of R.C. 121.22(G) is

invalid.

COUNT SIX
(Violation of R.C. 121.22(F) – Exceeding Stated Purpose at Special
Meetings)

88. Plaintiff incorporates by reference all the foregoing paragraphs of the

Complaint as if fully re-written herein.

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 89. Defendant MetroHealth Board of Trustees constitutes a “public body” as

defined in R.C. 121.22(B)(1).

90. As members of a “public body,” the individual Defendants, when acting

in their official capacity, are subject to the requirements and mandates of R.C. 121.22.

91. Defendant MetroHealth Board of Trustees has engaged in a pattern and

practice of violating R.C. 121.22(F), as well as Article V, Section 4 of its own bylaws,

as specifically alleged above, and by considering matters at a special meeting, or

during an executive session during a special meeting, other than those stated as the

“purpose” of the special meeting.

92. The special meetings of May 2, 2022, July 20, 2022, July 22, 2022,

September 6, 2022, October 20, 2022, November 2, 2022 and November 9, 2022, all

identified as reasons to go into executive session at least one purpose that is not

shown as the purpose of the special meeting on the notice issued to the public, in

violation of the R.C. 121.22(F).

93. Pursuant to R.C. 121.22(H), any resolution, rule or formal action of any

kind taken by the MetroHealth Board of Trustees in violation of R.C. 121.22(G) is

invalid.

WHEREFORE, Plaintiff Akram Boutros, M.D., prays that judgment be

entered in his favor for the following relief:

(i) On Count One, a judgment declaring any actions taken by

McCaffrey or Tucker Ellis LLP while unlawfully engaged by The Board of Trustees

are void and a nullity;

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 (ii) On Count Two, a judgment declaring any actions taken by a

purported “Special Investigation Committee” of the MetroHealth Board of Trustees

in regards to Plaintiff’s compensation are void and a nullity;

(iii) A judgment declaring any actions taken by the MetroHealth

Board of Trustees based on the existence or findings of McCaffrey and Tucker Ellis

LLP’s November 19, 2022 “Report to the Board of Trustees of The MetroHealth

System” are void and a nullity, including but not limited to, the “for-cause”

termination of Plaintiff as President and CEO on November 21, 2022;

(iv) On Counts Three, Four, Five and Six, a judgment declaring that

any resolution, rules or formal actions taken by Defendants in violation of R.C. 121.22

are void and a nullity;

(v) On Counts One, Two, Three, Four, Five and Six, a preliminary

injunction pursuant to R.C. 121.22(I)(1) compelling the Defendants to comply with

the provisions of R.C. 121.22;

(vi) On Counts One, Two, Three, Four, Five and Six, a judgment

requiring Defendants to pay civil forfeiture as set forth in R.C. 121.22(I)(2)(a) for each

distinct violation or threatened violation of the Act;

(vii) An award of court costs and reasonable attorney’s fees pursuant

to R.C. 121.22(I)(2)(a); and

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 (viii) Any further relief, legal or equitable, to which he may be entitled.

/s/ Jason R. Bristol

Jason R. Bristol (0072989)
[email protected]
Joshua R. Cohen (0032368)
[email protected]
James B. Rosenthal (0062872)
[email protected]
COHEN ROSENTHAL & KRAMER LLP
3208 Clinton Avenue
Cleveland, Ohio 44113
(216) 815-9500
(216) 781-8061 (Fax)

David J. Matty (0012335)

[email protected]
Mark B. Marong (0082865)
[email protected]
Shana A. Samson (0072872)
[email protected]
Matty, Henrickson & Greve LLC
1001 Lakeside Avenue, Suite 1410
Cleveland, Ohio 44114
(216) 621-6570
(216) 621-1127 (Fax)

Attorneys for Plaintiff Akram Boutros, M.D.

JURY DEMAND

Plaintiff demands a trial by jury on all eligible claims and issues.

/s/ Jason R. Bristol

Jason R. Bristol (0072989)

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