LEBANON, Ohio -- A Warren County judge ruled Tuesday that Clearcreek Township officials violated Ohio law for decades by holding secret meetings to discuss public business.
Court of Common Pleas judge James Flannery said that 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 meetings are violating the Ohio Meetings Act.
“The court finds without dispute that the Township Trustees made a regular practice of two or all three trustees meeting in the office of the Township Administrator, Dennis Pickett, approximately 30 minutes prior to the scheduled public meeting at 6:30 p.m.,” Flannery wrote in the decision issued Tuesday.
Agenda items were clearly decided in advance of public meetings and pulled from agendas in some cases, the judge found.
Flannery issued an injunction, ordering officials in the suburban township to not violate the open meeting law in the future. He wrote that the gatherings give the appearance that decisions are being made in the back room, which ultimately can lead to violations of the "Sunshine law." The decision comes just a few days short of Sunshine Week , an annual initiative promoting open government nationally.
The Clearcreek Township trial began Jan. 30 this year, but the lawsuit was filed years before. 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,” Chrisman said.
Chrisman filed the lawsuit out of concern that trustees were 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 named 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.
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.
In his decision Tuesday, Flannery ordered the lawyers for the township and for Chrisman to schedule a hearing to decide on the payment of damages to Chrisman from attorney fees in the lawsuit.
Chrisman's attorney, Chris Finney, said Wednesday that he will request more than $200,000 for legal costs incurred during the suit.
Hetzel, an advocate for open meetings, said the outcome of the hearing between the lawyers will be significant to watch because it could determine whether other citizens feel empowered to enforce the law.
"In a normal lawsuit you're trying to get money, but in these cases you're not asking for money. You're asking for the board's action to be invalid or not to do it again. But it still costs you money to litigate," he said. " The ability to have a chance of recovering your costs is significant because if you can't, if you don't have a realistic opportunity to get your money back even after you win, then only the wealthiest people can take on government."
DELIBERATING VS. INFORMATION GATHERING
The issue the two sides in the case had to prove to win is whether the trustees were simply absorbing information provided by their township employee or whether they’re discussing that information with each other.
Clearcreek Township officials previously said their gatherings were fact-finding in nature and intended to prepare them for their public meetings.
“They do what the laws allow them,” said the township's attorney, John Smith, before trial began. “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.”
Flannery ruled Tuesday that "deliberations" did take place on occasion, but said there's no evidence that the gatherings were mean-spirited or held to intentionally avoid the law.
"The Court finds the trustees legitimately wanted to know more information to be able to do their job to the best of their abilities," Flannery wrote. He said their intentions, however, were not an excuse for violating the law. "Public bodies are not free to ignore the Sunshine Law no matter how beneficially motivated.”
Ohio courts have historically recognized a distinction between deliberation and information gathering when hearing cases that involve
the Open Meetings Act.
Hetzel said he 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," Hetzel said.
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.“
Hetzel said he was generally pleased with Tuesday's Clearcreek ruling, but was not supportive of areas where Flannery distinguished between information gathering and deliberations in his decision.
"It's always heartening to see the courts affirm hat the public's business should be done in public," he said. "The other interesting aspect of the ruling was that it underscores that we still need to do some work on improving the Open Meetings Law in the state."
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 was 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 in January, 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.