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Clearcreek Township officials back in court for alleged open meeting act violation

Proposed bill would redefine open meetings law

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LEBANON, Ohio -- A Warren County judge is expected to decide soon whether Clearcreek Township officials have been violating Ohio law for decades by allegedly holding secret meetings to discuss public business.

At issue is whether trustees who regularly attend informal meetings in the township administrator’s office to review agenda items and other matters a half-hour before their public meeting are violating the Ohio Meetings Act, or whether a loophole in the law allows the gatherings to happen.

Attorneys wrapped up two-days of testimony Friday and will now prepare their closing arguments. 

Clearkcreek Township resident Jack Chrisman filed a lawsuit against the township and trustees in 2011, alleging that trustees’ “pre-meeting meetings,” held for more than 30 years, violate the law.

“I want to see transparency in the township completely from all the trustees. I want to see them advertise their meetings and let everyone know the meetings will be at a certain day, a certain time,” said Chrisman. 

Chrisman is concerned that trustees are making informal decisions out of the public eye that affect him and others in the township. It's a common fear of many taxpayers, who recognize the larger impact of small decisions made by their local officials.

"These local government bodies are taking actions that have more impact on your life than the federal government does. That's a pretty compelling reason for people to care," said Dennis Hetzel, executive director of the Ohio Newspaper Association.

The lawsuit names current trustee Glenn Wade and former trustees Robert Lamb and Cathy Anspach. It also names the township administrator, Dennis Pickett, who says he has worked for the township since 1985.

The trustees are accused of discussing matters amongst themselves in the “pre-meeting meetings.” including their thoughts and assessment on various township matters. The discussions sometimes led them to take an informal vote on an agenda item and even remove certain items from the agenda for that evening’s public meeting, the lawsuit claims.

Warren County Court of Common Pleas judge James Flannery tossed out the original case because he said there was not evidence the trustees were formally deliberating at the informal meetings.  But Chrisman appealed Flannery’s decision and won.

Township officials headed back to Flannery's courtroom Thursday for their first day of trial. 

Clearcreek Township officials admit that the informal "pre-meeting meetings" have occurred but deny that they’ve done anything wrong.

The officials claim the informal gatherings are purely incidental and not prearranged.

“They do what the laws allow them,” said John Smith, the township's attorney in the case. “They try to get there somewhat early before a regular meeting so they can discharge the responsibilities to get the information from whoever they need the information from so they can do their job.”

Wade, the trustee who has served in the township for more than 30 years, previously told Chrisman's lawyer in his out-of-court oral testimony that the informal meetings are held with the door open in an office next to the public restroom.

"I guess it was not at an advertised meeting, but people walk into the meeting. I mean, it’s not behind closed doors. Someone could walk in at any time and give us some information about something or, say, have a question," Wade said under oath. 

Pickett, the township administrator, said the trustees still stop by or call his office to ask questions before their public meetings but in light of the pending lawsuit, they now only meet with him one at a time. 

"I don't believe there was ever discussion among trustees. I don't believe their intent was to have a meeting before the meeting, and that there intent was always to find out their curiosities about items that I have scheduled on the agenda," he said.

Pickett said he occasionally removes scheduled agenda items referenced in the informal gatherings, but only to get more information to meet the trustees' needs. He said most of the gatherings are unrelated to township business.

"Many times, over the years, when trustees would come into my office, it was more of a social gathering than it was about business at all," said Pickett.

DELIBERATING VS. INFORMATION GATHERING

The issue that either side will have to prove is whether the trustees are simply absorbing information provided by their township employee or whether they’re discussing that information with each other.

Ohio courts have historically recognized a distinction between deliberation and information gathering when hearing cases that involve the Open Meetings Act.

Hetzel, an advocate for open meetings, believes courts have decided against the spirit of the law.

"It seems like the court decisions are making it narrower, narrower and narrower in terms of what happens to be an open meeting. I can't believe that was the intent of the law,"  said Hetzel.

According to the Ohio attorney general's office, discussion and deliberation involve the weighing of reasons for and against a course of action and must be conducted in the open. But gatherings solely to receive factual information may not be meetings.

"If they are sitting there like rocks on the side of the pond and not participating – just listening--then that would be fact finding or information gathering,” said Dennis Hetzel. “When they move from being sponges to actively deliberating policy, then it goes from being a closed to an open meeting.”

Hetzel said it's a loophole in Ohio law that's differs from many states' opening meeting policies, including Indiana and Kentucky, where information gathering must be done in the public.

He said Ohio's recognized separation of the two terms is impractical to enforce.

“It doesn’t describe how humans interact,” he said. “Think about any meeting you’ve ever been in. Now think of a meeting where you’re the key decision maker, where you’re the one making the policy decision. People interact. They ask questions. They brainstorm together. They talk amongst each other. They argue. They listen.“

Curt Hartman, an attorney who represents Chrisman in the Clearcreek Township case, agrees with Hetzel. 

"How does one ever prove what the individual trustee was doing? They will always say I wasn't deliberating. I was just getting information. It's made the open meeting acts very much of a paper tiger."

RE-DEFINING THE LAW

A local state senator is trying to redefine and clarify how Ohio's Open Meeting Act should be interpreted by courts.

"I think it's getting more difficult for the public to know what the public representatives are doing on their behalf," said Sen. Shannon Jones (R-Springboro). "For example, the attorney general has had to provide three different definitions of the word deliberation."

She's introduced Ohio Senate Bill 93, an attempt to make the Open Meetings Act more specific.

If passed, the bill would change the wording of Ohio's public meeting law to open "consideration or discussion of public business" to the public, rather than the current language that only opens "deliberations upon official business" to the public.     

Hetzel said this change would would not allow meetings between public officials to be billed as 'fact-finding sessions' or 'information gathering,' as is the argument in Clearcreek Township, unless it would fall under the one of the dozens of exceptions laid out in the law.  

The proposed legislation, which had its first hearing last Wednesday, would also require officials to provide more information about executive sessions and to keep more detailed public meeting minutes. 

"We put a lot of trust in [public officials] to be able to spend our tax dollars in a way that's appropriate and consistent with what the community wants. There's a lot at stake. This is our money our community. The only way you know if that's being done in an appropriate way is if you know what's going on," Jones said. 

The proposed legislation is awaiting a second hearing, where opponents will express their concern. 

Copyright 2014 Scripps Media, Inc. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.

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