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05/06/2016

Great week for open government in Ohio, but don’t relax

Dennis Hetzel Statehouse Sb231

Photo at right: Dennis Hetzel at the statehouse for the announcement of Senate Bill 321. Behind him from left, Damian Sikora with the Ohio Attorney General's Office, Senate President Keith Faber, and Ohio Auditor Dave Yost.

By Dennis Hetzel, Executive Director

Three open government issues that have been high priorities for months and even years came to a head this week, and the news is good in all three cases.

But, it’s no time to relax. A bill that contains two of our items is just starting its journey through the Legislature. For the first time, Ohio might have a statutory process that allows you to easily appeal a public records denial without expensive, lengthy litigation. The bill also fixes an issue that has made it impossible to collect attorney fees in some public records cases.

The third item was a terrific Ohio Supreme Court decision that puts a “stop sign” on how far a public body can go in using email to circumvent open meetings laws.

Public record appeals

Senate President Keith Faber, R-Celina, put his considerable influence behind a bill that would use the Ohio Court of Claims to appeal denials of public records. In essence, for a cost of $25 in less than 45 days, you would receive a binding opinion unless either side files a formal appeal. You would continue to have the option of going straight to court.

As we have said many times, the playing field in Ohio isn’t level. Governmental bodies that are so inclined know they can “run out the clock” with little or no danger of significant liability. Opportunities to get attorney fees – usually, by far, the most expensive part of a case – are rare or impossible. Governmental bodies also know that fines for violations are low, $100 a day to a maximum of $1,000.

This new process can also benefit government. Many disputes are simply sincere differences of opinion; both sides benefit from quick, simple resolution.

The process works like this and, again, is designed to unfold in 45 days or less:

  1. Go to any local courthouse to file an action and pay $25. Note that this covers disputes with either state or local governmental bodies.
  2. The matter is referred to a “special master” in the Court of Claims in Columbus, which is designed to handle disputes that citizens have with government.
  3. The master will attempt mediation. Additional information can be attached or requested, but there is not a formal, expensive discovery process. Provisions should be possible for mediation or meetings by telephone or video conference so the parties don’t have to drive to Franklin County.
  4. If mediation doesn’t settle the matter, the special master still will go forward and recommend a finding to the court.
  5. The court will issue a binding result that either side can appeal. An appeal will start at the appellate court level where the dispute occurred. This also saves time and money. There is a path to recover attorney fees in the court process in bad faith situations.

In our research, we found no other state that does it like this but believe this is a process that, if well executed, could become a national model. We are optimistic of the bill’s prospects as it already has bipartisan support, but there never are any guarantees. We urge our members to support Senate Bill 321 as well as review the legislation. Don’t hesitate to suggest improvements, too.

Fixing an attorney fee problem

For about two years, we have been seeking a legislative solution to an Ohio Supreme Court decision in a case, DiFranco v. South Euclid, in which the court made it impossible to collect attorney fees – even if you’re right – unless there is a formal court order requiring the release of records.

Similar to the point above, this meant governmental bodies could delay, delay, delay until the last minute, knowing their liability was limited.

The problem was the actual language in the law. We confirmed this was not the legislative intent. SB 321 has language that opens a path to collect attorney fees in those situations if it’s shown the governmental body was acting in bad faith.

Email can’t substitute for a public meeting

The Ohio Supreme Court ruled 5-2 this week that a majority of the Olentangy School Board, located just north of Columbus, used email improperly as a substitute for what they should have been deliberating and deciding in a public meeting.

Our Ohio Coalition for Open Government did a friend-of-the-court brief supporting the school board member who filed suit in the case, ably written by Cleveland attorney Dave Marburger. ONA, the Ohio Association of Broadcasters, Common Cause and the League of Women Voters supported the amicus.

It’s an important ruling. However, government officials shouldn’t freak out about this case – which already is happening in some corners from what I understand. They should read the ruling to understand the lengths to which the Olentangy school board went to dodge their obligation.

No one should have a problem with elected officials being able to casually exchange emails and collect information. What the board majority did was exclude the one member they didn’t like and use email to deliberate the issue and even decide it in private. Only much later did they ratify their action in a public meeting, which to me is a sign they knew they goofed.

It ought to be illegal to do this via email just as it’s illegal for boards to make decisions in executive sessions. The Supreme Court correctly concluded that their actions became a meeting under Ohio law and sent the case back to the lower court for more consideration.

Not only that, the board’s attorney also tried to argue that it was all OK, because the matter they were discussing wasn’t public business.  Thankfully the court rejected that absurd proposition as well.

 

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