Updated: 9:48 p.m. Saturday, March 12, 2011 | Posted: 9:47 p.m. Saturday, March 12, 2011

Area boards use executive sessions in ways that strain Ohio law

The Open Meeting Act is specific about when officials can go behind closed doors.

By Josh Sweigart

Staff Writer

The average Clark County Commission meeting consists of three separate meetings.

The first is around a conference table and informal, where commissioners hash out the details of government and often rib each other. A reporter — or anyone — is welcome to sit and watch.

The third is the formal session in council chambers. They, too, are open to the public.

The one held in the middle is not open to the public, held behind closed doors.

This is an executive session, and it is allowed under state law.

Ohio’s law is very specific about when county commissions, school boards and other public bodies can shut the public out of deliberations. The law specifically limits when executive sessions can be held, and how they should be handled.

But these laws are often misunderstood or left open to interpretation by local governments, a Springfield News-Sun investigation has found.

The Ohio Sunshine Laws manual is the definitive resource on the state’s public records and open meetings laws. It is produced annually by the state attorney general’s and state auditor’s offices.

The manual lays out the proper procedure for an executive session.

Motions often vague

The manual says executive sessions must begin and end in public meetings, which must be advertised. They require a proper motion, and a roll-call vote.

But such motions are often vague.

Some local governments, for example, often go into executive session to discuss “personnel” or for no stated reason at all, according to a review of meeting minutes from local school boards, cities and counties.

But the sunshine manual is clear: “It is not sufficient to simply state ‘personnel’ as a reason for executive session.”

The motion to go into executive session does not need to specify which employee they’re talking about, but they do have to tell the public what type of action they’re talking about, the manual says. Also common — and also not permitted, the manual states — is listing every possible reason for the executive session.

Minutes from the Springfield, Urbana and Northwestern school boards, among others, in 2010 included motions for executive sessions to discuss “(personnel) appointment, employment, dismissal, discipline, promotion, demotion, or compensation.”

That’s too broad.

“Perhaps that’s something we need to be more clear on,” said Springfield School Board President Donna Picklesimer.

No enforcement

After the vote to go into executive session, either the public clears the room or the elected officials go somewhere else until they adjourn back into regular session. Pulling back the veil on what happened in the interim is difficult and potentially costly, and left up to citizens themselves.

There is no public agency responsible for enforcing the Open Meetings Act. If someone believes a public body has violated the open meetings act, their recourse is to seek an injunction in common pleas court.

“That’s expensive, and generally in litigation in sunshine cases your odds of getting your legal fees back, let alone any significant damages, are slim,” said Dennis Hetzel, president of the Ohio Coalition for Open Government and executive director of the Ohio Newspaper Association.

If the resident can somehow prove a violation occurred, the courts will order the public body to pay him or her a civil forfeiture of $500 for each violation. The court can also require the public body to pay the court costs and attorney fees of the person who brought the suit.

And if the resident loses, he or she may have to pay the public body’s court costs and attorney fees.

“It’s an incentive to local governments that are inclined to do things in secret to go ahead and do it because the odds of having to do anything corrective, unless it’s really egregious, are pretty slim,” Hetzel said.

Some states, such as Kentucky and Pennsylvania, have a state office that can weigh in on possible violations and provide an opinion at no cost to the resident. Hetzel said Ohio should consider doing the same.

‘Trust us’

When asked how the public can be assured executive sessions aren’t being misused or abused, local officials said the law requires them not to abuse the executive sessions, so they don’t.

“Public officials have an obligation to follow the law,” said Nathan Kennedy, Clark County administrator. “I’ve been trying to be very careful of what is in the executive session.”

“We believe in open government and we have enough ‘champions of the cause’ to ensure we do a good job of maintaining public meetings and public records,” said Bruce Evilsizor, Urbana city manager. “We view executive sessions as a necessity and do not take them lightly.”

Springfield City Law Director Jerry Strozdas said city commissioners and staff understand the risks associated with violating the law, such as the possibility of overturned legislation if they abuse executive session privileges.

“They are keenly aware of that,” Strozdas said. “But overall, they show a continuing commitment to public discussion of issues ... I have really been struck by the seriousness with which we take those responsibilities.”

And the public can do little more than trust them, Hetzel said.

“Some of these things are always going to have gray areas, and I think the best thing you can do is try to elect honest people who will try to obey the law,” he said.

And the public can take some comfort from the fact such meetings are full of politicians, who generally have a hard time keeping secrets.

“The problem I’ve got with executive sessions — I go to McDonald’s the next morning, and there’s five guys that already know about it,” said Bob Thorpe, Urbana City Council member, according to the minutes of their March 1 meeting where they discussed executive sessions.

Anatomy of an executive session

Permissible executive session topics

Certain personnel matters

The purchase of property

Pending or imminent litigation

Collective bargaining matters

Matters required to be kept confidential by federal or state law

Security matters

Hospital trade secrets

Veterans Service Commission applications

Proper procedures for executive session

1. An executive session can only be held at a regular or special meeting, and must always begin and end in an open meeting.

2. An executive session requires a proper motion and roll-call vote. The motion must specifically identify which one of the approved topics will be discussed. It can’t simply state “personnel” or just list every possible topic, but it is not required to include the name of the person to be discussed.

3. A majority of the body must vote to go into executive session.

4. A motion to adjourn the executive session and return to public session is not necessary.

5. Minutes of an executive session are not required. A motion that properly identifies the permissible topic to be discussed, and the return to open session, noted in the meeting minutes is sufficient documentation.

Source: Ohio Sunshine Laws 2010: An Open Government Resource Manual


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