Dispatch files legal action for access to public records

From The Columbus Dispatch The operators of the publicly owned Franklin County Landfill say attorney-client privilege allowed them to black out entire pages of emails discussing how a private firm was allowed to dump of thousands of tons of waste without paying.

But experts on Ohio’s Public Records Act say that when agencies keep their actions secret by claiming that communication was really confidential legal advice, the public is forced to take their word for it — or go to court, a potentially costly and time consuming proposition.

The Dispatch went to the Ohio Court of Claims Friday to force the issue, filing a request for immediate review of the documents that the Solid Waste Authority of Central Ohio redacted or withheld. The newspaper is making use of a law that took effect last year that allows those who have been refused access to records to seek mediation through the court, which will issue a ruling if no agreement can be reached. Either side can appeal that ruling.

“We filed a public records complaint with the Ohio Court of Claims because we have seen no evidence to support SWACO’s claim that these records are exempt from public disclosure,” said Alan D. Miller, editor of The Dispatch.

“We believe that the public has a right to know how and why SWACO allowed 800 truckloads of waste to be dumped at no charge while others were being charged to dump similar loads,” Miller said. “Something smells bad here, and we believe the records will help shed light on what SWACO did or didn’t do to protect the public interest in this publicly owned landfill operation.”

More agencies are routinely looping in an attorney on the daily workings of government since a 2009 Ohio Supreme Court ruling that public officials interpreted as endorsing the use of attorney-client privilege to shield documents, said David Marburger, an attorney who specializes in First Amendment, libel, and media law.

That ruling found that the Lucas County Port Authority could keep secret an agency investigation into an employee accused of having an extramarital affair with a lobbyist and improperly funneling money to her. The reason: even though the report did “serve to document the organization, functions, policies, decisions, procedures, operations, or other activities of the office,” the port authority had a law firm do the investigation, the Supreme Court decided.

The port authority hired the firm specifically to keep the investigation secret, because agency employees “might be reluctant to speak openly and candidly unless the confidentiality of the investigation could be ensured,” the Supreme Court said in its ruling.

Many agencies interpreted the ruling as a green light to use attorneys to shield everyday documents and “spontaneous communications about what happened, how someone in officialdom responded,” Marburger said. But the ruling “doesn’t automatically mean those things.” The likelihood is low that everything labeled privileged really is, he said.

“Public relations is really what’s going on,” Marburger said.

While the state’s Public Records Act lists attorney-client privilege as an exemption to disclosure, that doesn’t mean that attorneys use it correctly, said Tim Smith, an attorney specializing in public records and meetings laws.

“That’s an interesting dodge to get around the Open Records Law: that everything we talk about we talk to our attorney about” so it can be withheld, Smith said. “There’s a legal term for this: It’s bull----.

“They would have to supply some basis for their contention that this is privileged information.”

The same tactic has been used to keep the public from public meetings.

Columbus City Schools closed a series of school board meetings in 2012 to discuss the district’s data-scrubbing scandal under the claim that an attorney it had hired was also in the room during the debates and therefore it was exempt from the state Open Meetings Act.

The Dispatch challenged that claim, and a Franklin County magistrate issued a preliminary order to stop such meetings. The court eventually ruled that the practice was illegal, and the district agreed to pay the Dispatch’s $170,000 legal fees. The Dispatch waived the payment.

When Columbus City Schools recently evaluated the job performance of Superintendent Dan Good, it hired an attorney, Greg Scott, to write the final report. The Dispatch asked for documents used in crafting the final five-page evaluation, but Scott said they were the board’s personal notes and were “protected by attorney-client privilege.”

The day after the evaluation was signed, Good announced he would retire in December.

What was the confidential legal advice the board was receiving from Scott? It was his help in writing the final evaluation, which reflected the feelings of the seven school board members, said district spokesman Scott Varner.

Varner said there is no pending lawsuit in regard to Good’s contract or his evaluation.

“If your question is do we (involve an attorney) so we don’t have to release documents, the answer to that is no,” said Columbus School Board President Gary Baker, who added that in the future, the board plans to stop using an attorney to assist in job evaluations. The client in an attorney-client privilege situation can waive the privilege and release the documents, but Baker declined to speculate whether the school board would do that.

The concept that a public agency can make a document secret because there might be future legal action is “absurd and it’s not supported by case law,” said Dennis Hetzel, executive director of the Ohio News Media Association.

“You can’t just have some anecdotal concern that somebody might sue us,” Hetzel said. “You have to have a more imminent fear. You always might get sued.”

In the case of the landfill records, the Solid Waste Authority of Central Ohio’s staff attorney, Rebecca Egelhoff was copied or included on a series of emails among SWACO employees about the free dumping. The blacked-out emails have subject fields such as: “response to Dispatch editorial,” “weekend Dispatch story” and “yard waste,” and SWACO’s public relations manager was included in nearly all of them.

They were sent around the time of a Dispatch article in May that broke news that yard-waste and mulch company Kurtz Brothers had dumped almost 800 truckloads of waste for free in late 2016 and early 2017. The dumping was valued at about $700,000 at the landfill’s rates at the time.

Ohio State Trustees conduct lengthy private meetings

From The Lantern Ohio State’s status as a public university requires by law that its Board of Trustees hold meetings in a public forum. However, the Board frequently meets in executive sessions — closed-door meetings in which private matters such as legal challenges or staff discipline are kept off the public record.

In fact, The Dispatch reported in March 2017 that the Board met in this private forum in every meeting since 2011. And that still holds true today.

In last week’s meetings — running from Aug. 22 to Friday — The Lantern collected timing of both executive and public sessions and was provided official records by Ohio State. Executive sessions outlasted public meetings in four of nine committee meetings.

For example, the Board’s Quality and Professional Affairs Committee meeting on Aug. 22 was in executive session for one hour and 16 minutes. Its public session was 10 minutes.

The Wexner Medical Center committee’s executive session lasted two hours and 46 minutes. Its public session lasted one hour and 12 minutes.

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Ironton mayor aims for a more transparent government

From The Ironton Tribune Ironton Mayor Katrina Keith is trying out a new concept, connecting with the city’s citizens via videos on Facebook.

Called “Mayor’s Minutes,” Keith said that every Friday she is going to try to post a new video on the city’s Facebook page, Ironton, OH-Government.

She said the idea was a continuation of making how the government functions more transparent.

“This really developed from the town halls we were doing,” Keith said. Over the past couple of months, the mayor and other city officials would have public meetings to talk about issues facing the city, such as the new EPA-mandated levels of mercury and phosphorus that comes out of the waste water plant.

“It was just hard for people to be able to come to the meetings, so we wanted to come to the people,” she said. “Not everyone can come to a city council meeting because they have to work. So let’s open up, be transparent and bring the information to the people via social media.”

So far the mayor has done three videos, with the first being released on Aug. 18. The introductory video has 3,755 views as of Tuesday morning and a video from Rally on the River has 1,800 views.

There is also one in which Keith talks about the new blue lights on the Oakley C. Collins Memorial Bridge.

Keith said she would do a couple videos a month.

“We are going to do, maybe, two videos a month that just talk about the city,” Keith said. “We’ll just do ones on things throughout the city.”

She said the subjects would be on things that people ask her about or issues facing the city.

Keith said she has gotten excellent feedback so far.

“People are saying ‘Katrina, this is fantastic, this is something that is needed. It makes sense to us now why the streets aren’t getting paved or why you using patching materials,’” she said. “The videos are educational tools.”

She said many people just don’t understand sometimes why the city just can’t pave all the roads or why certain things take a while to get done.

“These videos are just a way to get that information out there,” Keith said. “We’re not trying to coerce you into thinking something differently. We are just trying to get the information out there and you determine how you want to process that.”

Keith said she wouldn’t have a problem coming up with two videos a month.

“Oh, we have subjects,” she said, with a laugh. “We’ll talk about how shopping in Ironton makes a difference. For example, if you buy $20 or $30 worth of gas here in Ironton, we get the gas tax which pays for paving the roads.”

Painesville sued over alleged 'secret' immigration task force meetings

From The News Herald Two Lake County residents are claiming Painesville city officials violated Ohio Sunshine Laws by holding secret community task force meetings about a controversial immigration policy.

Kirtland resident Arzella Melnyk and James Weber of Painesville filed a complaint Aug. 29 in Lake County Common Pleas Court accusing City Manager Monica Irelan and City Council President Paul Hach of illegally closing task force meetings to the public.

On June 19, Irelan announced at council’s regular meeting that a task force had been formed to review the recently enacted Painesville Police Policy 413.

Lake County Jail officials used to report suspects of being undocumented to U.S. Immigrations and Customs Enforcement, but then delegated that responsibility to individual police departments.

Painesville police then created a policy that details guidelines for officers after they arrest suspects for violent crimes, drug offenses or gang activity.

After the department’s new policy was publicly criticized as being insensitive and hostile, a task force was created that included residents, representatives of the city and police officers, plus religious, immigration and Latino organization leaders.

According to the lawsuit filed by attorney Matthew J. D. Lynch:

• The task force held a secret meeting June 29 at Harvey High School in Painesville.

• On July 5, Weber was told by email that the task force meetings “are not open to the public.”

• On July 31, the task force held a secret meeting at St. Mary’s Parish.

• Any actions taken by the task force at its meetings is in violation of law under the Ohio Revised Code.

Melnyk and Weber are seeking an injunction to stop the task force from continuing “to meet in secret.”

The plaintiffs are also asking for unspecified monetary damages plus attorney fees and expenses.

Irelan, Hach and City Law Director Joseph Gurley did not return phone calls seeking comment.

The case is assigned to Judge John P. O’Donnell.

Appeals court hears Liberty Twp. case

From The Delaware Gazette Judges sitting on Ohio’s Fifth District Court of Appeals asked several pointed questions Tuesday as they heard arguments regarding an ongoing issue involving Liberty Township.

The case before the court is an appeal of the Ohio Court of Claims’ ruling that the notes of a Cincinnati attorney who was contracted by the township for an investigation are public record. Douglas Duckett was commissioned in March 2016 by Liberty Township trustees as a private investigator to probe the conduct of former Fire Chief Tim Jensen.

“How do we know they are private notes?” asked Judge W. Scott Gwin. “I would suggest at this point we don’t know.”

Gwin said there has never been an analysis done to know if the notes should or should not be considered public documents. He said the only way to determine if the notes were public records was through an “in camera inspection” of the notes.

Duckett used the notes from the investigation to compile a final report that lead to Jensen being charged “not fit to remain in command of the fire department.”

Township residents James Hurt and Mark Gerber made public document requests for Duckett’s notes starting in May 2016. Their requests were repeatedly denied by township officials based on the entity not ever being in possession of the notes.

Hurt and Gerber filed in November 2016 with the Court of Claims over the denied requests. In March the court ruled Duckett’s notes were public records.

“This is a very unusual circumstance,” Gwin said. “The fact of a private citizen, pursuant to a statute, performs a function that the township is requiring in order to address as an important issue as removal of a fire chief. It would seem to be public business even though it seeks an independent or special prosecutor, i.e., a private citizen.”

Liberty Township’s attorney, Stephanie Schoolcraft, asked the court to overturn the lower court’s ruling that the notes were public documents.

Since this is the first case of its type, Schoolcraft said the parties have a disagreement over the “appropriate standard of review” for the case. She asked the court to effectively have the case retried from the beginning.

Judge John W. Wise said that the trustees, as a quasi-judicial board, had the the right to ask for Duckett’s notes.

“You have the authority and right to ask for the notes,” he said. “By having the notes, the board would know if … that’s everything or no that wasn’t everything.”

Jim Burnes, independent counsel representing Hurt and Gerber, said the case wasn’t about who touched the Duckett notes last. He said it’s about the getting public documents into the hands of the taxpayers.

“This court knows full well that when we get into public records law in the State of Ohio, it’s very clear that all courts bend over backwards in favor of making public records available to people who vote and fund the operation of government,” he said.

Burnes said the significance of making the notes available to Jensen’s attorney, Paul Bittner, was to avoid violating a personal note exception rule.

“There is no basis in Ohio law, anywhere, that when you share those documents with somebody else, as these folks have done, that you have a personal note exception,” Burnes said. “They had plenty of opportunity to put that information out there.”

Judge Patricia Delaney, presiding judge, asked if the briefs submitted to the court contained the Duckett notes. Burnes told the judge they did not.

Scott asked if the records were turned over to the judge of the Court of Claims before making the decision that the notes were public record. Burnes said no.

“There has been an obligation right now, that has been left unchecked, that these are public records and that the entities that requested them should be given them, right?” Gwin said. “How can you ever go to the second step where they want to challenge some of the material in these records as being exempt perhaps under attorney client privilage, perhaps under the exeception of personal notes? They should never do that analysis until the underlying evedience was presented to the entity that is being asked to make those determinations?”

Burnes said he understood what Gwin was saying and that it was a good point, but not neccessarily in this case.

“They can assert they’re personal notes argument,” said Burnes. “It is undisputed that everything to defeat that argument is presented in this case.”

President and Executive Director of the Ohio News Media Association Dennis Hetzel testified before the Ohio House Government Accountability and Oversight Committee in support of Senate Bill 321 that created the new procedure within the Court of Claims. Hetzel attended the Court of Appeals hearing Tuesday.

“I think it’s important to uphold the Court of Claims process,” he said. “It was a complete victory for these citizens of the Court of Claims. It should be a higher hurdle for the township to jump over in order to keep these notes secert. What I hope happens is they order the release of the notes. Then if the township decides if portions of those notes should be redacted or blacked out, the township can do that and the people who get the notes can decide if they want to argue about that.”

The Court of Appeals must rule on the case in 60 days.

Portage County open meeting violation could nullify sales tax

From The Record Courier Portage County’s increased Sales and Use Tax could be nullified based on a court’s decision expected in October.

A complaint, heard this week in Portage County Court by visiting Judge Richard Reinbold, claims that the Portage County Board of Commissioners violated Ohio’s Open Meetings Act in 2015.

The complaint was filed by Brian Ames, a Randolph resident and member of the Portage County Tea Party. Denise Smith, civil division chief of the county prosecutor’s office, represented the commissioners in the case.

More than 15 high-profile witnesses were called to the stand to give his or her account of six meetings held in June, July and August of 2015.

Ames alleges in the complaint that those meetings violated Ohio law because no meeting notice was given and no minutes were taken. Three of those meetings involved what was deemed the Portage County Jail Overcrowding Task Force, an unofficial group formed by the commissioners to address the issue in its name.

“Portage County’s position is that there was no violation of the public meetings law and that then subsequent legislation, both the resolution passed under (Ohio Revised Code) and subsequent legislation under (a separate code) not be invalidated,” Smith said during closing remarks on Thursday. “A violation of the law takes place, yes, when there is a prearranged meeting of a public body and deliberations take place. Our positions is that the (meetings) were not meetings of a public body.”

However, Ames and his legal team claim that because more than one county commissioner was in attendance at each of those meetings, they become official meetings under the law.

While no official action was taken at any of the meetings, there is a possibility that legislation that resulted in the conversations had at those meetings could be invalidated. That includes the 5-year, one-quarter (0.25 percent) sales and use tax that the commissioners imposed in October of 2015.

The tax is expected to generate more than $25 million that will be used to construct an expansion to the county jail, as well as fund treatment and education programs to address the opiate epidemic in the county.

Reinbold is expected to issue his opinion in early October.

Witnesses included elected county officials, Coroner Dean DePerro, Treasurer Brad Cromes, Engineer Mickey Marozzi and Sheriff David Doak; Frank Hairston from the Portage Area Regional Transit Authority; Todd Peetz of the Regional Planning Commission; Bill Steiner of the Solid Waste District; Todd Bragg, the county’s budget and finance director; Joel Mowrey, head of the Mental Health and Recovery Board; Mark Frisone, head of Family & Community Services Inc.; and members of the Tea Party, Tom Zawistowski, Carl Crawford and Anne Kazmerzak.

Every witness had participated in the meetings in question. Each testified that the meetings were informational and that no action was taken. Ames claims that under Ohio law, meeting minutes must be kept when a majority of the board or committee takes official action, conducts deliberations or discusses “public business.”

GOP group seeks records to see if Cordray is mulling a governor run

From The Dayton Daily News

The Republican Governors Association is once again requesting information on whether consumer watchdog Richard Cordray is mulling a run for Ohio governor even as he serves as the head of the Consumer Financial Protection Bureau.

The organization announced today that it has sent the CFPB a second Freedom of Information Act request for records that would indicate that Cordray is actively pursuing a run. Doing so would potentially violate the Hatch Act, a law that bars some in the executive branch from participating in political activity while serving.

The public records request seeks information including correspondence between Cordray and prominent Democratic operatives in the state; a copy of Cordray’s government-issued cell and office phone records from June 1 through the present and a copy of Cordray’s schedule from June 1 on.

This is the second public records request the organization has made in the last two weeks; earlier in August, the group requested that Cordray turn over all e-mails between his office and a wide variety of people in Ohio, including former Ohio Democratic Chairman David Leland, Democratic fundraiser Melissa Barnhart, Cleveland Plain Dealer political columnist Brent Larkin and GateHouse Media, owners of The Dispatch, The Canton Repository and other Ohio newspapers.

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Fourth Amendment protects against warrantless seizure of cellphone location records, amicus brief argues

From The Reporters Committee for Freedom of the Press (On August 14) the Reporters Committee for Freedom of the Press and a coalition of 19 other media organizations submitted a friend-of-the-court brief to the Supreme Court of the United States in the case of Carpenter v. United States. The coalition brief urges the Supreme Court to reverse a decision by the U.S. Court of Appeals for the Sixth Circuit and require the government to abide by the Fourth Amendment and obtain a warrant to access cellphone location records. The case raises concern for media organizations because the government could access cellphone location records that reveal the newsgathering activities of journalists without adhering to any constitutional safeguards.

“The government should not be able to obtain cellphone location records without first getting a warrant,” said Bruce Brown, executive director of the Reporters Committee for Freedom of the Press. “The current ruling makes it too easy for the government to track a person’s every move through their cellphone, which is especially worrisome if the location records in question belong to a journalist. This endangers journalists’ ability to gather information and keep the public informed without the risk of being easily and routinely surveilled.”

The coalition brief argues that cellphone location records paint an intimate and comprehensive picture of where individuals go, and thus the people and places they associate with.

According to the brief, a journalist’s cellphone location data “can disclose particularly sensitive details about the journalistic process: It can reveal the stories a journalist is working on before they are published, where a journalist went to gather information for those stories, and the identity of a journalist’s sources…Exposure of sources and journalistic methods can put sources’ jobs and lives at risk, compromise the integrity of the newsgathering process, and have a chilling effect on reporting.”

The brief also argues that if the government can easily and routinely access detailed information about a person’s movements without a warrant, it threatens the ability to freely engage in activities protected by the First Amendment like newsgathering, which now often relies on use of a cellphone.

“Cellphones have become a mobile newsroom and a necessary newsgathering tool for journalists. Unfortunately, there’s no way to use a cellphone without sharing some location data with a service provider,” said Brown. “Allowing the government to easily access cellphone location records that paint a picture of where a journalist goes and possibly even who they meet with chills reporter-source relationships, threatens newsgathering, and ultimately harms the flow of information to the public.”

The full coalition brief is available here.

Landfill operator blacks out records about free dumping

From The Columbus Dispatch The operators of the public Franklin County Landfill say that numerous emails officials sent concerning thousands of tons of material a company dumped for free — and even discussions of newspaper stories and editorials revealing the dumping — may be blacked out under the state’s Public Records Act.

The Solid Waste Authority of Central Ohio redacted the text of dozens of emails from a Dispatch public records request. They are protected by attorney-client privilege, said Rebecca Egelhoff, SWACO’s general counsel.

The redacted emails were circulated among several office middle managers, including the public-relations manager, and included or copied Egelhoff. They have subject fields such as: “response to Dispatch editorial,” “weekend Dispatch story” and “yard waste.” Egelhoff said the emails were “to secure legal advice.”

They were sent around the time of a Dispatch article in May that broke news that yard-waste and mulch company Kurtz Brothers had dumped almost 800 truckloads of waste for free in late 2016 and early 2017.

At least one of the emails was also shared with city and county officials who sit on the SWACO board of directors.

SWACO sent over 1,600 pages of documents in response to The Dispatch’s request, but they were largely the same documents repeated dozens of times.

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Where is fatal fire incident report?

From The Cincinnati Enquirer

It’s been a year and a half since Hamilton Firefighter Patrick Wolterman died battling a fire a few days after Christmas.

It was 2:16 a.m. when an online notification system alerted Ohio Fire Marshal Chief Josh Hobbs was alerted to the fire. This was about an hour after firefighters in Hamilton called for help when Wolterman fell through the home's floor.

He died of smoke inhalation.

Fire Marshal Investigator Robert Dunn was dispatched. A Hamilton investigator told him on his way to the scene there was evidence of criminal activity.

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Brecksville officials violated open meetings law in approving fire station change order, government watchdog says

From The Plain Dealer An email poll of City Council members - meant to determine whether they would approve additional costs for the city's fire station renovation - violated state Sunshine Laws.

That's according to Catherine Turcer, policy analyst for Common Cause Ohio, a nonpartisan group that advocates good government. She said the email exchange was an illegal meeting of city council.

"Public-meetings law cannot be violated by using technology, like text messages," Turcer told cleveland.com. "You can't do a poll using email. You can't even tweet to circumvent open-meeting requirements.

City Law Director David Matty and Mayor Jerry Hruby did not return emails Monday night and Tuesday. Council President Greg Skaljac could not be reached Tuesday for comment.

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Local governments turning to streaming for meetings

From The Blade The latest Waterville city council meeting was the city’s first to be live-streamed on YouTube — making a long-planned digital addition a reality.

“By putting it on the internet, it will allow it to be seen by more people,” City Administrator Jim Bagdonas said.

Local governments around and including the city of Toledo have leveraged their websites and social media to make their meetings more accessible.

“I just wanted to get the information out to as many people as possible,” Bedford Township Supervisor Paul Pirrone said about the recent addition of a Facebook Live stream of township meetings.

Both Waterville and Bedford Township have added online viewing options to their traditional broadcast channel, which will continue for both municipalities.

Bedford’s live-stream reaches thousands of potential viewers. So far hundreds have checked in to view the meetings. Those clips are archived both on the township Facebook page and website.

Waterville had long broadcast its meetings on its Time Warner Cable channel, but with audio and video quality that reflected the old technology in Waterville’s city council chambers.

“The quality of the audio and video wasn’t what we wanted it to be,” Mr. Bagdonas said.

City council had the $25,000 it took to upgrade the technology set aside in its capital improvement budget for the past five years, he said, with everything coming together in time for the July 24th meeting.

Bedford Township had its meetings broadcast live on its Buckeye Broadband channel at no cost to the township. Buckeye and The Blade are owned by Block Communications Inc.

The city of Toledo’s city council meetings are broadcast on WGTE-TV, with audio placed on the city’s Google site shortly after the meetings end. Only the most recent meetings are kept live on the site because of space restrictions, Toledo city council clerk Gerald Dedinger said. Older footage is available by request dating back to 2000.

“We typically get it online right away,” Mr. Dedinger said.

Several municipalities have the full audio from meetings published, including the cities of Oregon and Sylvania and Perrysburg and Sylvania Townships.

Sharon Bucher, the city of Sylvania’s clerk of council, said in her five years in the job there have not been any discussions about adding video recordings to the website.

“The most important part is the audio,” she said, and the city typically places the full audio online the day after the meeting.

Lorain school board president makes additional record request in CEO hire

From The Chronicle The school board president has filed another round of public records requests in relation to the hiring of the district’s CEO.

According to the request made Thursday morning, Tony Dimacchia wants to see:

  • A copy of the contract with TNTP and the Academic Distress Commission and/or the Ohio Department of Education.
  • Any and all email sent or received in the last 60 days by John Richards, deputy superintendent of the Ohio Department of Education.
  • Any and all text messages sent or received in the last 60 days by Richards as it pertains to the search and hiring of the CEO, David Hardy.
  • And any and all emails sent or received in the last 30 days by TNTP to the Hardy, the Oho Department of Education and the commission.

The request is the second Dimacchia has made in less than a week after an extensive list last Friday that included the contact with Atlantic Research Partners, the 37 applications for CEO and texts and emails regarding the search, which cost $25,000.

Previously, Atlantic Research Partners President Jim Hager has said, with the exception of the five finalists, the firm will not release the resumes of the other 32 candidates.

“It is important to state that Atlantic Research Partners carried out the very charge we were given by the commission: to recruit a strong pool of dynamic applicants and to narrow the candidates to three to five highly qualified finalists,” he said in a July 20 statement. “In doing so, we also maintained, as promised, the confidentiality of all applicants who were not named finalists, in order to not jeopardize their current employment.”

Hager did not return a request for comment.

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Violation of Open Meetings Act postpones county health board swearing-in

From The Blade Three incoming members of the Toledo-Lucas County Health Department’s board of health will not be sworn in as scheduled Thursday because of a violation of Ohio’s Open Meetings Act, the Lucas County Prosecutor’s Office told the department.

Assistant county prosecutor Kevin Pituch said the members can’t be sworn in at this point because a June 28 special meeting of the Lucas County District Advisory Council, which appoints some of the health board’s members, was not publicized with 24-hours’ notice as required by law. During that meeting, an appointment vote for the members took place.

“Notice did not go out to the media as required by [Ohio Revised Code,]” Mr. Pituch said. “If you conduct a meeting and don’t give proper notice then the actions taken at that meeting are void.”

The vacancies are for board positions representing the county’s villages and townships. Scheduled to be sworn in at Thursday’s health board meeting were:

Matthew Heyrman, who worked in various positions for Lucas County before becoming executive vice president of the Associated General Contractors of Northwest Ohio this year. He returns to the board after his previous term ended in March. His new term expires in 2021.

Dr. Johnathon Ross, an internal medicine specialist with Mercy Health-Toledo, joins with a term ending in 2019.

Toledo attorney Fritz Byers joins the board with a term ending in 2020. Mr. Byers represents The Blade on First Amendment issues.

Dr. Ross and Mr. Byers replace Hans Schmalzried, who resigned in August, and Dr. Vidya Ramanathan, who resigned in September.

The special meeting, which is required to be held again, has not yet been set, said Andy Glenn, president of the district advisory council and a Springfield Township trustee.

When a Blade reporter inquired at the June 28 meeting about public notice, Mr. Glenn acknowledged it was scheduled quickly once it was known they would have a quorum and public notice was not given. The meeting continued.

This is not the first delay in board appointments this year.

Appointments were planned for March at the district advisory council's annual meeting, but did not happen after attendees said they didn’t have enough information about the candidates. Then a May special meeting scheduled specifically to appoint board members was canceled after further concerns were raised about operations at the department and on the board, Mr. Glenn said.

In June, Lucas County commissioners and Toledo Mayor Paula Hicks-Hudson announced that a citizens' task force would review operations at the health department. The areas of concern include financial stability of the department and its clinics, handling of lead issues, and human resources.

Nationwide Arena operator takes public money but not input on budget

From The Columbus Dispatch The board that is to receive $4.6 million in public money this year to manage the publicly owned Nationwide Arena met Thursday for its only public meeting in 2017. But it sought no public input for its budget because the spending plan was approved last month in private.

“Given the large amounts of public money they are getting, they should be bending over backwards to be as transparent as possible,” Dennis Hetzel, executive director of the Ohio News Media Association in Columbus and president of the Ohio Coalition for Open Government, said Thursday.

Don Brown, president of the four-member Columbus Arena Management board that jointly operates Nationwide Arena and Ohio State University’s Schottenstein Center, said the CAM financial year ends June 30, so the $23 million budget had to be approved before then.

“How would we have operated the last (13) days without a budget?” Brown asked when The Dispatch asked him about the lack of public input.

This is the first year, Brown added, in which CAM’s only public meeting was held after the budget was approved. The reason: “The (four CAM) managers were not available” until July, Brown said.

The board members are representatives of Nationwide Arena, the Columbus Blue Jackets who play in the arena, OSU and Brown, executive director of the Franklin County Convention Facilities Authority.

CAM received $4.5 million last year and expects to receive $4.6 million this year in public money — casino taxes that were supposed to go to Franklin County and the city of Columbus. Those two governments agreed to provide that public money to the arena annually from 2012 through 2039.

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Ohio State pays legal fees to settle public records case

From The Columbus Dispatch Ohio State University has agreed to pay up to $6,000 in legal fees in exchange for the dismissal of a lawsuit alleging it illegally withheld records on an energy-privatization deal.

Bruce Weide, a retired computer science professor, sued the university in the Ohio Supreme Court on April 4, claiming it failed to promptly release records associated with a $1.1 billion contract with a French energy company.

OSU failed to promptly release its request soliciting proposals for the energy management contract, declaring it a “trade secret,” and also declined to immediately make public the agreement spelling out the terms of the deal with Ohio State Energy Partners, the lawsuit alleged.

Weide said it constituted a scheme to keep the records from the public until after the university’s trustees approved the agreement involving Paris-based ENGIE and the Axium Infrastructure investment firm.

The Ohio Supreme Court referred the case to mediation. Fred Gittes, a Columbus lawyer who represents Weide, said he agreed to dismiss the lawsuit in a settlement requiring Ohio State to pay his client’s legal fees of up to $6,000.

Gittes said the matter became moot because Ohio State finally released the records once the deal was approved by trustees.

“They effectively achieved their goal of denying meaningful public access to the records until after the board voted,” Gittes said.

“Ohio State complied with public records law and acknowledged no liability in the resolution of this matter,” Ohio State spokesman Ben Johnson said. “The process of arriving at this historic partnership -- which will benefit the environment, our students, our faculty, our community, and the university for decades to come -- lasted for years and was highly collaborative.”

Under the 50-year deal, Ohio State Energy Partners will pay Ohio State just over $1 billion up front, plus a three-stage payment of $150 million to support academics. In return, Ohio State will pay the private company fees of around $55 million per year to operate the university’s heating and cooling systems.

OCOG seeks to join Delaware County records case

The Ohio Coalition for Open Government has asked Ohio’s Fifth District Court of Appeals to allow it to join a case to support two citizens in Liberty Township, Delaware County, who are in a battle for notes related to an investigation of the township’s former fire chief. Dennis Hetzel, OCOG’s president, said the case is particularly significant because the citizens, James Hurt and Mark Gerber, “had a 100 percent victory” in the Ohio Court of Claims.

The new Court of Claims process went into effect in 2016 with strong support of the ONMA.  “For the first time, Ohio citizens have a way to appeal denials without the huge expense of hiring an attorney and initiating expensive litigation,” Hetzel said. “That’s what levels the playing field. It should be very difficult for the government to prevail when the full Court of Claims affirms rulings in cases that seem this clear.”

Hetzel said the township has refused to concede that an investigator’s notes that were used in the determination of the chief’s status are public records.  “Once we saw that the Ohio Township Association and others were joining the township’s appeal, we felt it was particularly important for OCOG to support the two citizens, who are representing themselves,” Hetzel said. “Under the township’s logic, critical records could be kept secret by hiring a private person to do the government’s business.”

Attorneys Erin Rhinehart and Christopher Hollon of the Faruki law firm in Dayton are representing OCOG following the vote of the OCOG Board of Trustees to file the amicus brief supporting the citizens. The appeals court still must rule on whether to accept the OCOG brief, although it has accepted briefs in support of the township.

This Delaware Gazette story provides additional background on the case.

OCOG is a 501(c)3, non-profit corporation affiliated with the ONMA’s Ohio News Media Foundation.

Save the date for OCOG's 25th anniversary fundraiser featuring bestselling author J.D. Vance

Bestselling author J.D. Vance, whose book Hillbilly Elegy became a must-read across the country after last year’s election, will headline the 25th anniversary fundraiser for the Ohio Coalition for Open Government.  The “Evening with J.D. Vance” will be held on December 6, 2017, in the atrium of the Ohio Statehouse. The fundraiser will feature both a discussion with Vance, whose Hillbilly Elegy points to many of the challenges Ohio is currently facing, and an opportunity to meet the author one-on-one. For more on Vance, go to www.jdvance.com.

A complete schedule for the event, along with how to register, will be released in the near future.

The Ohio Coalition for Open Government (OCOG) is a tax-exempt 501 (c)(3) nonprofit which serves as a clearinghouse for media and citizen grievances that involve open meetings and open records. The activities of the Coalition include monitoring government officials for open government compliance, filing “amicus” briefs in lawsuits, litigation and public education. To learn more about OCOG go to www.ohioopengov.com.

Alan Miller column: Reynoldsburg school board conducts business in the dark

Column by Alan Miller, Editor, The Columbus Dispatch The Reynoldsburg Board of Education and its lawyers tried to hide an unusual expenditure of public dollars and got caught.

It’s remarkable that public officials would think that it’s a good idea to sneak a potentially controversial spending measure past the public.

Even more remarkable is that this is not the first time we have seen such stupidity by public officials and their lawyers, and undoubtedly it won’t be the last.

That’s one of many reasons we all should be grateful that a reporter asked a couple of simple questions: What was that vaguely worded resolution you voted to approve? And can I have a copy of the public record that provides the details?

What Dispatch reporter Shannon Gilchrist found was that the Reynoldsburg school board voted 3-2 to approve an agreement with Superintendent Tina Thomas-Manning to make her a consultant from her home for a full year for $100,000 plus benefits.

In return, she agreed to leave the office and not sue the district.

It was presented for a board vote as “the agreement with Ms. Tina Thomas-Manning as presented.” That’s it. No further detail. The vote came after the board met in a private session.

A board member who was asked about the agreement and the vote said that the district’s legal counsel, Bricker & Eckler, “really pushed the fact that we aren’t supposed to talk,” and that all questions were to be directed to the central office.

Think about that for a minute. An elected public official says she can’t discuss a public vote on public business because a lawyer advised the board not to talk about public business.

The settlement itself included a section titled “MEDIA COMMENT REGARDING THIS AGREEMENT,” which says that “the parties will not comment on this settlement agreement unless required by law to do so, and instead will present to the media and any media representative the joint statement attached as Exhibit B.”

That statement added a little detail, noting that the district would “continue to utilize Ms. Thomas-Manning’s expertise in the educational field as a consultant, and following that year she will be provided an unpaid leave of absence for one year,” but the statement said nothing about the cost to taxpayers.

Clearly, there are lawyers who think this is sound practice when it comes to avoiding a court battle.

But it’s important for public officials to remember that lawyers work for them, not the other way around. And the officials are responsible for seeing the bigger picture. That includes understanding that in the court of public opinion, any effort by public officials to hide public information generally blows up in the faces of those who try it. Because we always find out.

Sometimes, we or other members of the public find out because we sit in meetings, read meeting agendas, listen to speeches or hear public officials utter statements that simply aren’t clear, don’t add up or don’t make sense. And when we ask for clarification or documentation to explain what we’re reading or hearing, the truth comes out.

Other times, we hear about such moves because some good soul with a strong moral compass sees or hears something that he or she knows is wrong and should be exposed. These days, some people attach the pejorative label leak to such tips.

I call that bravery and doing the right thing, because to stand by and say nothing while someone in authority seeks to mislead the public, or worse, do something illegal, would make that person complicit.

And the consequences of hiding a controversial decision are far greater than being honest and transparent about that decision in the first place.

Such clumsy moves also can be costly in other ways. The Dispatch once sued a rural county prosecutor because he refused to release a public record. He didn’t think we should have it, regardless of what the law said, so he dug in his heels and we sued him. When he lost the lawsuit — and also was required by the court to pay our legal fees — he went with hat in hand to the county commissioners seeking money to pay the bill.

No dice, they told him. You made a bad decision; you pay the bill.

It was a painful lesson — one that I hope he and other public officials never forget.