04/06/2015

ONA answers your legal hotline questions, part 1

By Dennis Hetzel, Executive Director

One of the Ohio Newspaper Association’s most important services is answering member questions to our legal hotline, and we get lots of them, particularly related to sunshine laws and advertising issues.

Over the next two Bulletins, I’ll provide a summary of some of the questions we’ve answered in the past three months. Some of our members made some serious mistakes that everyone can learn from. In other cases, reporters are wrestling with important issues about government secrecy. Unfortunately, the answers aren’t always crystal clear or the ones we want to hear.

Not all this advice comes from me. In many cases, there is no way I could help members without the wise support of Lou Colombo, ONA’s general counsel, and his colleagues at the Baker Hostetler law firm in Cleveland.

When it comes to potential violations of open records and open meetings law, we always look for solutions that don’t involve the time and expense of litigation, but sometimes there is no choice. When your call involves matters such as fair housing and libel complaints against the newspaper, it’s always a good idea to talk to an attorney before acting.

An important caveat: Many of these situations and our responses are far more complicated than I can convey in a paragraph, and our opinions are just that: opinions. Feel free to contact me if you’d like more detail on any of these items.

Without further ado, here are recent answers to your questions. Part II will be in your Bulletin in two weeks.

LIVE TWEETS: Can a judge bar live-tweeting from a courtroom in a high-profile case? ONA Response: Judges have broad latitude to control courts, and the ruling likely would be upheld. Try to negotiate with the judge regarding her concerns.

HOUSING AD DISCRIMINATION: Does a “for rent” ad for a two-bedroom apartment that says “one person only” discriminate based on family status? ONA Response: This situation is complicated, but we advised the member to try to settle the fair housing complaint, particularly because the apartment advertises two bedrooms. Always be careful with housing and employment advertising.

DEFENDANT ACCUSED OF WRONG CHARGES: Our paper mixed up charges and names, and said a local resident who was indicted by a grand jury was charged with a more serious crime. Does she have a case for libel? ONA Response: Try to settle this amicably. While the fact that this person was indicted limits how much actual damage occurred, this is a bad mistake that a jury would be unlikely to view in your favor. It’s a good reminder that most libel cases come from errors in everyday coverage, not the big stories that you probably review with a fine-tooth comb.

AIRPORT BOARD APPOINTMENTS: Can an appointment to an airport board be considered by a recommending committee in a closed meeting? ONA Response: While there are some grounds to argue it was an improper executive session based on the specific facts in this situation, a court likely would find the session was legal. Generally, boards can go into executive sessions to consider specific appointments of public officials (not overall personnel policies). The board must take an actual vote in public, of course.

TIMELY RESPONSE: It took from November to January for our park district to reply to a resident’s multiple requests for public records on a flier the district produced. Is this a timely response under Ohio law? ONA Response: Ohio, unlike many states, requires a response in a “reasonable” time, not a fixed number of business days. We think case law supports a position that taking several months for this reply is not reasonable and thus violated the law.

CVB RECORDS: Can we obtain records of a convention and visitors bureau that gets public funds? ONA Response: Unfortunately, the answer is “no” based on the status of this private entity. There are other ways to get some of this information, however. We advised the reporter to make public records requests of the governmental body for related emails and expenditures to the private entity. The ONA has a long-standing position that the Ohio Supreme Court has adopted an extreme, restrictive view on access to information about spending and other records held by private entities related to their activities on behalf of government. (There is a pending case that, fingers crossed, could change this.)

SECRET MEETING ON LEASING: Can a governmental body go into executive session to discuss leasing property from a private party? ONA Response: As we read the law, the answer is “no.” The executive session exemption refers specifically to the purchase and sale of property, not leasing. When they meet secretly under this exemption, boards also should be prepared to demonstrate that premature disclosure provides an unfair advantage to the other party.

ECONOMIC DEVELOPMENT SECRECY: Can our city council meet secretly to consider tax incentives for a private company that wants to expand in our city? ONA Response: This was a complicated situation. First of all, this city has a charter-home rule form of government. In those cases, reporters need to see if the city charter has rules about open meetings (and other things) that override state law. In this case, the city council improperly announced the special meeting that included the executive session and had to take a “do-over” vote. Regarding the executive session, a new exemption was added to state law in 2013 that allows local governments to meet secretly to consider requests for economic development assistance, but only if is related to specific programs spelled out in listed statutes. Reporters should carefully note how the body announces that it is going into executive session and make sure that any action the board takes is related to those specific programs. Otherwise, it’s an illegal session.

If you need additional information, you can find our downloadable guide to “Common Issues in Ohio Advertising” in the “members only” area of the ONA website. The Ohio Coalition for Open Government website contains resources on journalist access issues, including links to the Ohio attorney general’s invaluable guide to Ohio’s records and meeting laws and training videos.