Lawsuit Filed by Dr. Akram Boutros Against MetroHealth (Amended 12-15-22)
Lawsuit Filed by Dr. Akram Boutros Against MetroHealth (Amended 12-15-22)
Lawsuit Filed by Dr. Akram Boutros Against MetroHealth (Amended 12-15-22)
BYRD
CUYAHOGA COUNTY CLERK OF COURTS
1200 Ontario Street
Cleveland, Ohio 44113
vs.
Judge: JENNIFER O DONNELL
THE METROHEALTH SYSTEM BOARD OF
TRUSTEES, ET AL.
Pages Filed: 27
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IN THE COURT OF COMMON PLEAS
CUYAHOGA COUNTY, OHIO
For his first amended 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, John M. Moss, E. Harry Walker
and The MetroHealth System, Plaintiff Akram Boutros, M.D. states and alleges as
follows:
INTRODUCTION
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
that basis.
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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
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
and implementing his termination without the mandatory public notice and
deliberation.
compliance with the statute that the Board sustained over the course of at least the
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
improperly and secretly hired. It also nullifies the Board's unlawful termination of
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.
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Boutros also seeks an award of civil forfeiture and his court costs and reasonable
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
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
Corlett, Maureen Dee, John M. Hairston, Jr., Robert Hurwitz, John M. Moss and E.
Harry Walker.
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
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governing authority for an integrated system of health care facilities and programs
FACTUAL BACKGROUND
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
OMA applies to those discussions or deliberations and the public body must comply
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
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.
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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
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)
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.”
restricts the Board's ability to conduct business at a special meeting other than in
(emphasis added)
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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:
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'k if ic
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
R.C. 121.22(H).
action taken in violation of the OMA. Moreover, a public body such as the
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
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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
19. The MetroHealth Board of Trustees has a long history of violating the
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
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
1 The 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 the 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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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
121.22(G).
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
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
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
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.
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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 Board Of Trustees’ Violations Of The Open Meetings Act Pervades The
Hiring Of Plaintiffs Replacement As CEO
end of 2022, the Board of Trustees undertook a search for a new CEO. That process
Committee. All the work of the Search Committee was conducted in Executive
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
28. The search process was further tainted because the MetroHealth Board
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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
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
Board resolution.
surrounding the search for his successor, in late July or early August 2022, he alerted
Counsel Laura McBride. Dr. Boutros believed it was his duty to bring to light any
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
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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.
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
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.
The Board Of Trustees’ Violations Of The Open Meetings Act And Other
Laws Pervade Their “Investigation” Of Plaintiffs Compensation
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
however, she was dissatisfied with the results of their work and she shopped for other
counsel.
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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
stating “At this time Dr. Boutros is willing to meet with you after you provide me
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
minutes of any meeting - or record of any other kind - reflecting the establishment
served on it.
39. Dr. Boutros requested the names of the members of the so-called
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40. The MetroHealth Board of Trustees held a special meeting on October
20, 2022 whose stated purpose was “to consider the employment and compensation
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
participated in the illegal Executive Session of October 20, 2022. McCaffrey admits
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,
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
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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
whose stated purpose was “to consider the employment and compensation of a public
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
47. McCaffrey, as alleged above by his own admission, was present at and
whose stated purpose was “to consider the employment and compensation of a public
violation of R.C. 121.22(G), for the purpose of “receiving the benefit of matters
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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
50. McCaffrey, as alleged above by his own admission, was present at and
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
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.
54. Within an hour, the Board had voted to terminate Dr. Boutros'
5:46 p.m., Chair Whiting texted board member Terry Monnolly, who had been
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55. This evidence demonstrates that the Board deliberated and voted on this
56. Mr. Monnolly then received a phone call at 6:12 p.m. from Co-General
Counsel Sonja Rajki telling him that the Board was just about to exit executive
57. The approved minutes of the November 21, 2022 meeting inaccurately
state that the executive session ended at 7:30 p.m., and the vote to terminate occurred
in open session, between 7:30 and 7:38 p.m., and then again on Resolution No. 19538
Boutros' termination after a decade of outstanding service to the system, was reduced
discrepancy between Whiting's text message and the official minutes reveals an
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explicit conflict in the Board's minutes and Chair Whiting's text message to Mr.
Monnolly. This level of conflict raises serious questions about whether the inaccuracy
COUNT ONE
(Violation of R.C. 121.22(A) and (H) - Purported Hiring of John McCaffrey)
in their official capacity, are subject to the requirements and mandates of R.C. 121.22.
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.
64. In fact, the Board of Trustees never scheduled a meeting for the hiring
65. The Executive Meeting of October 12, 2022 was the only Board of
Trustee meeting scheduled between October 11, 2022, when Board Chair Whiting
and Vice Chair J.B. Silvers met with Dr. Boutros, and October 14, 2022, when
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McCaffrey announced to Dr. Boutros' counsel that he and Tucker Ellis LLP had been
hired by the Board. The agenda for that October 12, 2022 Executive Committee
meeting reveals that the Executive Committee did not recommend or approve the
McCaffrey and Tucker Ellis LLP were not lawfully engaged to assist in or conduct
67. 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
COUNT TWO
(Violation of R.C. 121.22(A) and (H) - Purported Establishment of Board
Sub-Committee to Investigate Plaintiff’s Compensation)
in their official capacity, are subject to the requirements and mandates of R.C. 121.22.
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71. On or prior to October 14, 2022, Defendant Board of Trustees purported
Boutros' compensation.
72. 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
74. 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)
in their official capacity, are subject to the requirements and mandates of R.C. 121.22.
78. 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,
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October 26, 2022, and November 21, 2022, Defendant MetroHealth Board of Trustees
and by referencing “laundry lists” of reasons for the executive session that include
confidential by law.”
79. None of these stated reasons comports with the strict requirements of
R.C. 121.22(G).
80. Pursuant to R.C. 121.22(H), any resolution, rule or formal action of any
invalid.
COUNT FOUR
(Violation of R.C. 121.22(G) - Executive Session at Special Meetings)
in their official capacity, are subject to the requirements and mandates of R.C. 121.22.
84. 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,
85. Pursuant to R.C. 121.22(H), any resolution, rule or formal action of any
invalid.
COUNT FIVE
(Violation of R.C. 121.22(G) - Executive Session at Committee Meetings)
in their official capacity, are subject to the requirements and mandates of R.C. 121.22.
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), as specifically alleged above, and by including among the reasons
confidential by law.”
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90. The MetroHealth Board of Trustees also violated the OMA through its
91. 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).
92. Pursuant to R.C. 121.22(H), any resolution, rule or formal action of any
invalid.
COUNT SIX
(Violation of R.C. 121.22(F) - Exceeding Stated Purpose at Special
Meetings)
in their official capacity, are subject to the requirements and mandates of R.C. 121.22.
practice of violating R.C. 121.22(F), as well as Article V, Section 4 of its own bylaws,
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during an executive session during a special meeting, other than those stated as the
97. 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
98. Pursuant to R.C. 121.22(H), any resolution, rule or formal action of any
invalid.
McCaffrey or Tucker Ellis LLP while unlawfully engaged by The Board of Trustees
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
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System” are void and a nullity, including but not limited to, the “for-cause”
(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
(v) On Counts One, Two, Three, Four, Five and Six, a preliminary
(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
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(vii) An award of court costs and reasonable attorney’s fees pursuant
JURY DEMAND
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CERTIFICATE OF SERVICE
I certify that a true copy of the foregoing was filed with the Court's electronic
filing systems this 15th day of December, 2022, and service will be made by the Court's
automated system. Copies were also sent by e-mail to all Defendants in care of:
Laura McBride
Sonia Rakji
Co-General Counsels
The MetroHealth System
2500 MetroHealth Drive
Cleveland, Ohio 44109
lmcbride@metrohealth.org
srajki@metrohealth.org
and to
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