More meetings should be open
If you spent your whole life in Ohio as a reporter covering government or a citizen going to meetings, you might be surprised to learn that the ”information-gathering” and ”fact-finding” sessions that you and other citizens can’t attend are routinely open in many other states.
That will change in Ohio if Senate Bill 93, sponsored by Sen. Shannon Jones, a Republican from Warren County, becomes law.
When the bill was introduced in March, I shared it with several attorneys who are experts on Ohio’s sunshine laws.
The collective response was, ”Wow, this would be a huge improvement and correct a long-standing problem.”
Still, until recently, the bill seemed unlikely to go anywhere. Local government groups don’t like it at all. I believe we can work with them to overcome at least some of their objections.
We certainly agree that not everything a governmental body does should be in public. However, there already are many exceptions to open meetings in state law. Indeed, legislators just added a new one in 2013 that allows local governmental bodies to go into closed meetings to discuss economic development proposals. Fortunately, the Ohio Newspaper Association was able to get some limitations placed on the sweeping language first proposed.
The bill spent 10 months in legislative purgatory. Then, on Jan. 22, it finally received a first hearing, and we joined others in support.
Something interesting happened that day. It did not seem to be a perfunctory hearing. The senators on the Senate Government Oversight and Reform Committee paid close attention. The points we made about the problems with Ohio’s definition of a meeting seemed to resonate with several.
In essence, the bill fixes a long-running dispute over what the definition of an open meeting is in Ohio law. The proposed new definition clearly establishes that an open meeting isn’t just for board members to deliberate but for ”consideration or discussion of public business.”
This is not some subject of arcane interest only to lawyers and public-policy junkies. A tremendous amount of business that should be done in public now is being done in secret in Ohio. These ”informational” or ”fact-finding” meetings often are the most useful, important meetings a governmental body can hold. When citizens cannot attend these gatherings, they can’t adequately judge the actions of their officials, whether the issue involves a discussion of school textbook purchases, merger with a neighboring jurisdiction or new zoning in your neighborhood.
By the time a board votes on something at a public meeting, it’s often too late for input. And such meetings still could be closed if they satisfied any of the exceptions in current law.
Local government groups believe that prearranged ”listening sessions” with a majority of board members present don’t have to be open. The Ohio Supreme Court never has settled the matter, but lower court findings have made a murky situation worse, narrowing the definition of public meetings in some cases to the point of absurdity.
For example, a judge said that question-and-answer sessions between board members and others in attendance are not public meetings unless a majority of the board engages in the discussion. Scant help comes from advice given to local governments in the attorney general’s annual guide on Ohio’s open meetings and open records laws. As a practical matter, it gives local governments a playbook on how to interpret the law as narrowly as possible for openness.
Other states don’t see it that way. For example, such meetings are presumed to be open in Indiana, California, Kentucky, New York and Kansas.
The bill also makes other improvements in the open meetings law. Public bodies would have to be more specific about the reasons stated for closed sessions, and the penalties for violating the law would get slightly sharper teeth. The bill would make it harder for bodies that violate the law to avoid penalties by using what I call the ”whoops, we-thought-it-was-OK” exception in current law. Right now, citizens have a hard time getting attorney fees reimbursed – even if they are correct. You must have deep pockets or a forgiving lawyer to litigate an open meetings case in Ohio.
Here I quote Cleveland attorney Lou Colombo, long-time counsel to the ONA and an expert on these laws: ”Anyone who brings a successful suit to secure openness has provided the public with a benefit and deserves compensation for his attorney’s fees . . . Good faith is a factor the court can consider in a hearing to reduce fees.”
Maybe, just maybe, the chances for this bill have moved from ”none” to ”slim.” This is a moment when the support of citizens might really help. I hope you will consider taking the time to contact Sen. Jones or your local state senator to tell them you would like to see Senate Bill 93 move forward in 2014.
Hetzel is executive director of the Ohio Newspaper Association.