Attorney: Geauga Park District did not violate Sunshine Laws

From The Chagrin Valley Times

An attorney argued Tuesday that the Geauga Park District Board of Commissioners did not violate Ohio’s Sunshine Laws at their meeting last month when the board allegedly discussed in executive session a resident’s request to speak at the meeting.

Todd C. Hicks, an attorney with Thrasher, Dinsmore and Dolan and the Burton village solicitor, briefed the board on a 5th District Court of Appeals decision to uphold a trial court’s ruling that Bolivar Village Council did not violate Ohio’s Open Meeting Laws, also known as Sunshine Laws, when the council discussed a resident’s request for public comment in executive session.

The facts in that case, he said, are similar to allegations of sunshine law violations against the park board stemming from the board’s August meeting.

On Aug. 8, Protect Geauga Parks President Kathryn Hanratty sent an emailed request for public comment to the three park commissioners and Executive Director John Oros. At the Aug. 15 board meeting, the board went into executive session to discuss the purchase of property. When the board returned from executive session, they said they had nothing to report, and later in the meeting, Board President Andrej Lah stated that the board would not allow Ms. Hanratty to speak. Protect Geauga Parks has been critical of the district’s elimination of public comment at their meetings.

According to Ms. Hanratty, she asked Mr. Lah after the meeting when her request had been discussed, and Mr. Lah responded that her request had been briefly discussed in executive session.

“That’s not the reason they went into executive session, but it’s a violation of Sunshine Laws,” Ms. Hanratty said following the Aug. 15 meeting. “It’s not something they can discuss privately and it’s a fairly big decision to make without allowing the public to know why you made it.”

Similarly, on May 19, 2014, Bolivar Village Council voted to go into executive session, and prior to adjourning Irvin W. Huth asked if the public would be permitted to speak after the executive session, according to court documents. Bolivar Mayor Rebecca Hubble advised that the general consensus was no, but that she would let council make that decision after executive session. Following the executive session, Mayor Hubble announced that public comment would not be allowed.

On May 18, 2016, Mr. Huth filed a lawsuit alleging the village council had violated sunshine laws, and the trial court dismissed each count of Mr. Huth’s complaints on March 6, 2018. Mr. Huth filed an appeal, and on Aug. 27, 2018, appellate judges Patricia A. Delaney, Craig R. Baldwin and Earle E. Wise Jr. upheld the trial court’s decision that no violation had occurred.

“Essentially (the court of appeals said) to have a sunshine law violation, you have to have two things. You have to have deliberations in an executive session, but the second part you need is some official action on the part of the public body, meaning the passing of a rule, an ordinance or something else. And what both courts found was that a decision to not allow public comment, or to allow public comment, does not rise to the level of an ordinance or rule or some other official action. That’s an administrative decision, and therefore no violation occurred, even if that decision was discussed outside of a public meeting or in executive session,” Mr. Hicks said.

In an interview following the meeting, Protect Geauga Parks Trustee Dave Partington, who had not yet reviewed the case cited by Mr. Hicks, said “I don’t see (the Bolivar case) as relevant. Our question is, (the board) had an attorney with them the entire time and you made a decision. And you made a decision in private that’s not appropriate for executive session. (Last month) Mr. Lah said ‘We agreed.’ Well to me, either you held a formal vote or an informal vote, but agreement is agreement and you did this and you didn’t do it in public and you should have.

“This again is a total lack of transparency, and they didn’t have to do it this way,” Mr. Partington said. He continued that Protect Geauga Parks would be reviewing Mr. Hicks’ assessment and the Bolivar case with their attorneys.

Urban Meyer's text messages, and the question nobody wants to answer

From USA Today

Ohio State recently released dozens of records related to its investigation of football coach Urban Meyer — a file that includes select text messages from Meyer's wife and agent, plus a 23-page summary of findings.

But at least one big question remains unanswered.

Did Meyer delete text messages on his phone in an effort to destroy evidence?

Ohio State investigators looked at his phone and said they could not determine if he had deleted messages older than a year, according to their report about Meyer's management of an assistant coach who had been accused of domestic abuse. They suspected Meyer might have deleted them, but the report does not say whether they even asked him about it – or if they tried to recover deleted text messages with the help of digital forensic tools.

And nobody involved is answering questions about it now, two weeks after his three-game suspension was announced by Ohio State.

Not Ohio State. Not Meyer’s legal team. Not the lead investigator in the case.

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Lawmaker proposes ban on publicly-funded non-disclosure agreements

From WOSU

A lawmaker wants to stop companies and organizations from using taxpayer money to fund non-disclosure agreements.

The issue came up recently with the now-closed online charter school, ECOT, which required severance packages to include these agreements.

Records show that the Electronic Classroom of Tomorrow spent more than $500,000 on severance packages with non-disclosure agreements attached.

ECOT was accused of fabricating student attendance data in order to get millions of state dollars.

Democratic Rep. Kristin Boggs said NDAs are just another example of wasting public funds.

“There’s no reason why we should be spending a half a million dollars to hush employees about potentially bad and wrongful practices of an organization that has been publicly funded for so many years,” she said.

Boggs’ bill would stop groups from attaching these agreements to publicly funded severance packages and give the state the power to go after that money in the future if they do.

Ohio Supreme Court declines to hear ECOT appeal

From The Columbus Dispatch

The Ohio Supreme Court dealt ECOT another loss this week, refusing to hear its argument that the state Board of Education violated Ohio’s Open Meetings Act when deciding to order repayments from the now-closed e-school.

In a major decision last week, the high court ruled 4-2 that the Department of Education was permitted under Ohio law to utilize log-in duration data to determine student enrollment that is the basis for state funding. The department had ordered ECOT to repay the state $80 million for students who failed to reach the 920 hours of minimum educational engagement required by the state.

The Electronic Classroom of Tomorrow also had filed a lawsuit arguing that the Board of Education met illegally while deciding whether to formally order the repayment of taxpayer funds. The Franklin County Court of Appeals ruled against the school in February.

The court on Wednesday ruled 4-1 against accepting an appeal of that decision, which now stands. Justice Sharon Kennedy, who also ruled in ECOT’s favor last week, dissented. Justices Patrick DeWine and Judith French did not participate.

The legal options for ECOT founder Bill Lager, who made millions operating companies that served ECOT, are largely exhausted. He still has one lawsuit pending in Franklin County Common Pleas court, challenging the Board of Education’s administrative process, arguing the board has “taken inconsistent positions as to the nature of its own actions.”

Dispatch complaint seeks Powell's release of Zach Smith police report

From The Columbus Dispatch

The Dispatch has filed a public-records complaint in the Ohio Court of Claims as the city of Powell refuses to release records of a 2015 incident in which former Ohio State assistant football coach Zach Smith was accused of domestic violence.

Powell’s police department has released only a bare-bones incident report from the Oct. 25, 2015 incident involving Smith and his then-wife, Courtney.

The 2015 incident received heightened attention when head football coach Urban Meyer fired Smith on July 23, after Courtney Smith filed for a protection order against him and allegations of previous domestic violence incidents came to light. An Ohio State investigative committee is probing Meyer’s knowledge of and response to those allegations. He is suspended with pay.

Under Ohio’s public-records laws, open criminal cases generally are exempt from public release, but Powell has said the investigation into the allegation of spousal abuse by Zach Smith was officially closed in November 2015, a month after the incident.

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Columbus Schools approves deal allowing superintendent search firm to keep secret the names of many applicants

From The Columbus Dispatch

The Columbus Board of Education approved an agreement Tuesday with the out-of-state search firm taking applications for the post of superintendent, with the names to be kept secret except for those recommended and forwarded by the firm.

The agreement between the district and BWP & Associates, of Libertyville, Illinois, states that all documents produced or received by the firm will remain its property, except those turned over to the board “relating to candidates recommended by the consultants at the time the recommendation is made.”

But the agreement also instructs BWP that “state public records and (the) Sunshine Law will be observed and the consultants will provide information in compliance with these laws.”

The work will cost $25,000 plus expenses.

Last week, The Dispatch filed a state public records request with BWP for the applications of at least 15 candidates the firm said had applied or had begun the process of applying.

Since then, the firm has hired Columbus attorney Larry James to represent it in records request, James said Tuesday.

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OCOG backs citizen journalist in Bratenahl open meetings case

From The Finney Law Firm

Finney Law Firm has the honor to represent citizen journalist Patricia Meade before the Ohio Supreme Court in her efforts to expose the workings of her hometown’s government to public scrutiny.

In State ex rel. Meade v. Village of Bratenahl, we are appealing lower courts decisions that permit public bodies in Ohio to vote on any issue by secret ballot. The opportunity for mischief is readily apparent.

The Ohio Supreme Court accepts only approximately 5% of appeals, so just getting the case accepted is a major accomplishment. We are cautiously optimistic that the Ohio Supreme Court will be convinced by our argument and longstanding precedent and overturn the decision of the Cuyahoga County Court of Appeals.

Today we filed our merits brief. Read the brief online here or below. We expect that one or more “friends of the court” (interest groups or others who are not a party to the case, but are concerned with the outcome) will also file a brief in support of our position (an amicus brief) in the coming days. The village will have thirty days to file their own brief, and then we will have fifteen days to file a reply.

This case is an important case for all Ohioans, as it will determine what, if any, information the people are entitled to know about how their elected officials vote on particular issues and whether citizens will have an ability to hold their elected officials accountable for their official action.

View all case filings on the Ohio Supreme Court website, here.

We expect the Ohio Supreme Court will hear oral argument in the case sometime in early 2019.

Update – The Ohio Coalition for Open Government, Reporters Committee for Freedom of the Press, and the Ohio Association of Broadcasters filed an amicus brief today in support of our position. Read their brief here.

Powell police refuse to release report involving Zach Smith

From The Columbus Dispatch

Powell police are refusing to release records of a 2015 incident in which Zach Smith’s then-wife accused him of assaulting her. Public-records experts say those files should be open to the public under Ohio law.

The investigation resulted in no charges against Smith, a former Ohio State University assistant football coach fired last month for a string of domestic-abuse allegations dating to 2009. However, the cover pages of the report taken Oct. 26, which were released, note injuries to Smith’s wife, and that a kitchen knife, broken iPhone and two small USB drives were taken as evidence from Courtney Smith’s home.

Powell Police Chief Gary Vest said he was forbidden from releasing more details on the case, including investigative notes, interviews, pictures or recordings, on the advice of attorney Ben Albrecht, who is representing the city in the matter.

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Editorial: Public records are public regardless of format

Editorial from The Columbus Dispatch

New apps that allow people to communicate without leaving a pesky digital record may be a godsend for those engaged in top-secret negotiations, confidential advising and ordinary gossip, but we hope all Ohio public officials recognize that they’re absolutely inappropriate for government work.

It should be obvious: Ohio’s “Sunshine” laws require government business to be done in public, and that means government records, with some exceptions, must be available to the public. A government-business text or email that disappears automatically after a set time would be the same as destroying a public record.

Given the time-honored inclination of some in government to evade public scrutiny, though, it’s probably worth emphasizing that vanishing-message apps — sort of a 21st century equivalent of the sizzling reel-to-reel tape recorder on the old “Mission Impossible” — don’t belong in public service.

The Associated Press recently tracked legislation in all 50 states and found a number of attempts to shortchange public access:

‒ In Louisiana and Kentucky, lawmakers tried (and failed, thankfully) to exempt all communications on personal phones from open-records laws — as if who paid for the phone can change whether the communication is public.

‒ A Virginia legislator introduced a bill to exempt lawmakers’ personal social-media records from public disclosure.

‒ In Missouri, former Gov. Eric Greiten’s staff’s use of the Confide app, which automatically deletes messages and doesn’t allow them to be forwarded or made into screenshots, prompted opposition lawmakers to clarify that personal social-media posts and messages sent through such apps nonetheless are public records if they relate to public business.

It’s a fact of modern life that many of us communicate on multiple devices all day and enjoy no clean separation between work and personal time. For government employees, that undoubtedly complicates the definition and preservation of public records, but it doesn’t change the principle that any communication by or to government employees involving public business must be retained and made available to the public.

A state representative in Missouri, pushing for the public-records bill, said it best: “We should not be allowed to conduct state business using invisible ink.”

Officials' use of 'delete' apps for texts, emails would violate Ohio law

From The Columbus Dispatch

Government officials using emails and text messages to handle public business in Ohio had best avoid apps and software that instantly or automatically delete their digital communications.

Under state law, no public records can be destroyed unless authorized by a public office’s records retention schedule that specifies how long records must be kept before they are destroyed.

And, if electronic messages are illegally deleted, the Ohio Supreme Court ruled a decade ago that government officials must pay the costs of attempting to recover them and, if successful, turn them over for inspection.

A public official’s use of an app that automatically destroys a digital or electronic public record would violate state law, said Dennis Hetzel, executive director of the Ohio News Media Association.

“It is clear under Ohio law, as it should be, that the nature of the content of the communications, not the device or server used, should determine if it is a public record. That includes emails and text messages. There are many easy, best practices that public officials can and should follow to make sure these records are preserved,” said Hetzel, also president of the Ohio Coalition for Open Government.

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