A Public Body’s Prearranged Discussion by E-mail Violates Ohio’s Open Meetings Act
A private prearranged discussion of public business by the majority of a public body’s members either face-to-face or by other means such as telephone, e-mail, text, or tweet, violates the Ohio Open Meetings Act, the Ohio Supreme Court ruled today.
In a 5-2 vote, the Supreme Court ruled former Olentangy Local School District Board of Education member Adam White can pursue his lawsuit against the school board for violating the Open Meetings Act. White alleged the violation happened when the board president sparked an exchange of e-mails with the other board members and school officials to respond to a newspaper editorial. The decision, authored by Justice Terrence O’Donnell, reverses the decision of the Fifth District Court of Appeals, which approved a trial court’s dismissal of White’s suit.
In a dissenting opinion, Justice Judith Ann Lanzinger wrote the General Assembly has not applied the Open Meetings Act to e-mails and other forms of electronic communication, and an e-mail exchange by public officials would only be a violation if they prearranged a “real-time” exchange to subvert the law.
Board Reacts to Columbus Dispatch Editorial
White served on the board with Julie Feasel, Kevin O’Brien, Stacy Dunbar, and president David King. In his complaint, White alleged that he had independently conducted investigations into alleged improper expenditures by two school district athletic directors. King, Feasel, O’Brien, and Dunbar voted to amend board policy to require all communications between board members and staff first pass through the district superintendent or treasurer. White voted against the policy, and in an October 2012 editorial, The Columbus Dispatch praised White and implicitly criticized the other board members for adopting the restrictive policy designed to thwart White from further investigation into alleged illegal spending by district employees.
King directed Feasel, O’Brien, and Dunbar to collaborate with Superintendent Wade Lucas, and three district staff members on a public response to the Dispatch editorial. The board members and staff did so in a series of e-mail exchanges that excluded White. O’Brien submitted to the Dispatch a response signed by all the school board members except White. King submitted a final response to the Dispatch that he signed as board president and indicated he had the consent of Feasel, O’Brien, and Dunbar to publish.
About six months after, White filed a lawsuit against the four other board members alleging they violated the Open Meetings Act, which is R.C. 121.22. White informed the members at a board meeting on the day he filed and moved that “no public monies be spent defending the 4 board members, or in the alternative, if any public monies are spent defending the 4 board members, those members agreed to reimburse the district for any monies spent.” The motion died for lack of a second, then the other four members voted to publicly ratify the response published by the Dispatch as its official position on the issue.
White amended his complaint to add the board itself as a defendant and sought a declaratory judgment against the board and its members for violating the Open Meetings Act and sought damages. The trial court granted the board’s motion for judgment on the pleadings for three reasons: no prearranged discussion of public business had occurred because the communications began with an unsolicited e-mail from King; the Open Meetings Act does not apply to e-mails; and at the time of the e-mail exchange, there was no pending rule or resolution that would constitute public business.
White challenged the ruling in the Fifth District Court of Appeals, which sided with the board finding the definition of “meeting” in R.C. 121.22 does not include sporadic e-mails, and that the e-mails did not discuss public business because at the time they were exchanged, there was no pending rule or resolution before the board. The appeals court also determined that despite the later ratification of the board’s editorial as a board policy, that vote did not retroactively transform the e-mail exchange into a prearranged discussion of public business. The Fifth District also noted that mere discussions of an issue of public concern does not mean there were “deliberations” under the statute.
White appealed to the Supreme Court, which agreed to hear the case. He argued the Open Meetings Act prohibited the school board from conducting a private discussion concerning public business, whether face-to-face or in a virtual meeting using electronic communications, and that under R.C. 121.22, the board’s ratification of the editorial made the editorial public business.
Is E-mail Discussion About Drafting an Editorial Public Business?
Justice O’Donnell wrote that R.C. 121.22(C) states that “(a)ll meetings of any public body are declared to be public meetings open to the public at all times.” R.C. 121.22(B)(2) defines a “meeting” as “any prearranged discussion of the public business of the public body by a majority of its members.
“Nothing in the plain language of R.C. 121.22(B)(2) expressly mandates that a ‘meeting’ occur face to face. To the contrary, it provides that any prearranged discussion can qualify as a meeting,” he wrote. “Accordingly, R.C. 121.22 prohibits any private prearranged discussion of public business by a majority of the members of a public body regardless of whether the discussion occurs face to face, telephonically, by video conference, or electronically by e-mail, text, tweet, or other form of communication.”
Justice O’Donnell explained that having a discussion through a series of e-mail communications does not remove the discussion from the requirements of the Open Meetings Act. He referenced the Court’s 1996 State ex rel. Cincinnati Post v. Cincinnati decision where the Cincinnati city manager scheduled back-to-back, nonpublic meetings with members of the Cincinnati City Council to discuss the construction of new professional sports stadiums. While less than a majority attended each session, a majority of members attended the series of meetings. The Post sought a court order to compel the city to prepare and make available minutes from the meetings summarizing the discussions.
The Court agreed with the newspaper, finding the back-to-back meetings could be construed to be parts of the same meeting.
“The distinction between serial in-person communications and serial electronic communications via e-mail for purposes of R.C. 121.22 is a distinction without a difference because discussion of public bodies are to be conducted in a public forum, and thus, we conclude that in this instance, a prearranged discussion of public business of a public body by a majority of its members through a series of private e-mail communications is subject to R.C. 121.22,”Justice O’Donnell wrote.
Allowing public bodies to avoid the requirements of the Open Meetings Act by discussing public business via electronic communications “subverts the purpose of the act,” he added.
Justice O’Donnell noted the courts in Nevada and Washington have similarly ruled that serial electronic communications cannot be used to avoid public meeting mandates. Justice O’Donnell also rejected claims that the definition of “meeting” implies an event that requires parties to participate at the same time, and that a set time must be prearranged in order for the discussion to be covered by the Open Meetings Act.
He wrote that nothing in the act requires real-time communication, and White alleged that board president King instructed the other board members to collaborate with staff to draft the response to the editorial.
“Thus, White may be able to prove a set of facts to support his claim that the e-mail discussion in this case was prearranged,” he wrote.
Editorial Response Became Public Business
The school board argued that the discussion regarding a letter to the newspaper was not public business that required it be discussed at a public meeting. Justice O’Donnell pointed to a 1998 Nevada Supreme Court decision (Del Papa v. Bd. of Regents of Univ. & Community College Sys. Of Nevada), where board of regents members and staff collaborated by way of telephone calls to issue a press statement refuting claims made by another board member. The Nevada legislature defined “meeting” as involving deliberation toward a decision or a decision “on any matter over which the public body has supervision, control, jurisdiction, or advisory power.”
In the Olentangy Local case, King instructed school district staff members to assist the majority of the board in preparing a response to an editorial that criticized one of its decisions. Subsequently, the board ratified the response to the Dispatch at a public meeting further indicating the response fell within the public business of the board, Justice O’Donnell wrote. When the board formerly voted to ratify the response, the ratified actions constitute “public business,” he concluded.
The Court reversed the Fifth District’s opinion affirming the trial court’s dismissal of White’s complaint and remanded the case to the trial court for further proceedings consistent with the Court’s opinion.
Justices Paul E. Pfeifer, Sharon L. Kennedy, Judith L. French, and William M. O’Neill joined Justice O’Donnell’s opinion.
Dissent Disagrees with Overbroad Definition
In her dissent, Justice Judith Ann Lanzinger wrote that “while it may be a good idea to limit the use of e-mail to avoid statutorily required public meetings, that is the task of the General Assembly and not this court.”
“In including all forms of ‘communication’ in its interpretation of ‘meeting,’ the majority reaches into areas well beyond those covered by R.C. 121.22, “ she said. “In this case there is no allegation that discussions were either prearranged or that they occurred in real time. As such, the subject e-mails do not qualify as a ‘meeting’ as the term is currently defined.”
Justice Lanzinger countered that nothing in the statute expands the definition to all forms of communications. She noted a “meeting” occurs when a majority of members of a public body agree to attend in their official capacity to discuss public business.
She added that a discussion through e-mails could be subject to the Open Meetings Act if, for example, a board member communicated independently with a majority of fellow board members and prearranged for them to send and receive e-mails at a specific day and time. Such planning for a real-time discussion could require a public meeting within the meaning of the statute, she concluded.
Because the unintended consequences of the majority‘s broadening of the word “meeting” beyond its current definition could affect adversely how members of public bodies do their business, Justice Lanzinger would affirm the court of appeals.
Chief Justice Maureen O’Connor joined the dissent.
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