Ohio Auditor Dave Yost applauds Ohio Supreme Court open meetings ruling
Lead Summary
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COLUMBUS – Ohio Auditor of State Dave Yost applauds today’s Ohio Supreme Court ruling on White v. King (see http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2016/2016-Ohio-2770.pdf).
“The Internet has made everything from shopping and dating more convenient, but circumventing the public’s right to know isn’t one of them. The court’s decision is a warning to any politician who tries to use chicanery to conduct the people’s business in the darkness: There shall be light.”
According to the Ohio Supreme Court in White v. King, Slip Opinion No. 2016-Ohio-2770:
Adam White, a member of the Olentangy Local School District Board of Education, appealed a judgment of the Fifth District Court of Appeals affirming an order granting judgment on the pleadings in favor of the board in an action involving Ohio’s Open Meetings Act, R.C. 121.22.
The issue presented on this appeal was whether a series of e-mails between and among a majority of the members of a public body relating to a response to a newspaper editorial, which culminated in the publication of a response that the board later ratified at a public meeting qualifies as a “meeting” for purposes of R.C. 121.22.
At the time pertinent to this matter, the school board consisted of White, Julie Feasel, Kevin O’Brien, Stacy Dunbar, and president David King. The amended complaint alleges that White independently conducted an investigation into alleged improper expenditures by two athletic directors employed by the Olentangy Local School District that resulted in one resigning and both being required to reimburse the district.
Thereafter, on Sept. 25, 2012, King, Feasel, O’Brien, and Dunbar amended a board policy to require that all communications between board members and staff first pass through the district superintendent or the district treasurer. White voted against the policy change, and on Oct. 11, 2012, the Columbus Dispatch published an editorial entitled “Role Reversal” in which it praised White for his vote and implicitly criticized the other board members for adopting a restrictive policy designed to thwart White from conducting further investigations into suspected illegal spending by district employees.
King then sought to have Feasel, O’Brien, and Dunbar publicly respond to the editorial and directed that they and Superintendent Wade Lucas and district staff members Teresa Niehaus, Linda Martin, and Karen Truett collaborate and issue a response to the editorial on behalf of the board.
The board members and district employees did so in a series of e-mail exchanges. O’Brien submitted a proposed response signed by all board members except for White to the Dispatch. King then submitted a final response to the Dispatch that he signed in his capacity as board president indicating that Feasel, O’Brien, and Dunbar consented to its publication. The Dispatch published that response on October 27, 2012.
Approximately six months later, White filed this lawsuit against King, Feasel, O’Brien, and Dunbar, alleging that they had violated the Open Meetings Act.
That same day, at a regular board meeting, White advised the board of the lawsuit and moved that “no public monies be spent defending the four board members, or in the alternative, if any public monies are spent defending the four board members, those members agree to reimburse the district for any monies spent.”
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The motion died for lack of a second. King, Feasel, O’Brien, and Dunbar then voted to publicly ratify the response and deny that the board “violated the Sunshine Law.” White abstained from these votes.
The board members answered the complaint and moved for judgment on the pleadings. White then moved for leave to amend his complaint and add the board itself as a defendant. The trial court granted White’s motion, ordered the clerk to file the amended complaint instanter, and denied the motion for judgment on the pleadings as moot.
In the amended complaint, White sought a declaratory judgment that the board and other board members violated the Open Meetings Act, statutory damages, a temporary restraining order, and injunctive relief. The respondents answered and jointly moved for judgment on the pleadings pursuant to Civ.R. 12(C).
The trial court determined that King, Feasel, O’Brien, and Dunbar had immunity and were entitled to judgment on the pleadings in their individual capacities. The court also granted the board’s motion for judgment on the pleadings for three reasons: no prearranged discussion of public business had occurred because the communications among the board members originated with an unsolicited e-mail from King, R.C. 121.22 does not apply to e-mails, and at the time of the e-mail exchange, there was no pending rule or resolution before the board.
On appeal, White challenged the court’s ruling only with respect to the board. In affirming, the appellate court held that 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. And, despite the fact that the board later ratified the response to the editorial, ratification did not retroactively create a prearranged discussion of public business via e-mails. Finally, the appellate court stated that “mere discussion of an issue of public concern does not mean there were deliberations under the statute.”
White presented two propositions of law, which we, the Ohio Supreme Court, accepted:
Under the Ohio Open Meetings Statute, Ohio Rev. Code §121.22, liberally construed, private deliberations concerning official business are prohibited, whether such deliberations are conducted in person at an actual face-to-face meeting or by way of a virtual meeting using any other form of electronic communication such as telephone, e-mail, voicemail, or text messages.
Under the Ohio Open Meetings Statute, Ohio Rev. Code §121.22, when a board of education formally votes to ratify a prior action, the ratified action constitutes “official business” under the Statute.
White maintains that he has established an Open Meetings Act violation in that King pre-arranged a private discussion regarding a response to a Columbus Dispatch editorial, a majority of the board members and district staff participated in that discussion in their official capacities, and that discussion resulted in a policy statement that the board later ratified. He also argues that sanctioning public bodies’ avoidance of R.C. 121.22 by discussing public business electronically subverts the purpose of the law and that incremental electronic communications violate the law, relying on State ex rel. Cincinnati Post v. Cincinnati, 76 Ohio St.3d 540, 668 N.E.2d 903 (1996).
The board responds that the amended complaint fails to establish that a meeting occurred for purposes of the Open Meetings Act, asserting that the law does not apply to e-mails because it does not mention electronic communications, even though the General Assembly has amended it several times since 2005, when a court of appeals held that it did not apply to e-mail. In addition, the board argues that discussions about a response to a newspaper editorial do not involve public business.
Only private deliberations on a pending rule or resolution can violate R.C. 121.22, and in this case, the policy vote occurred before the publication of the editorial, and the board’s decision to later ratify its response to the editorial to defend against a lawsuit did not retroactively convert the prior e-mails into a discussion of public business.
The issue here is whether an e-mail discussion by a majority of the members of a public body for the purpose of drafting a response to an editorial that is subsequently ratified at a public meeting qualifies as a meeting for purposes of R.C. 121.22.
In State ex rel. Midwest Pride IV, Inc. v. Pontious, 75 Ohio St.3d 565, 570, 664 N.E.2d 931 (1996), we explained: Under Civ.R. 12(C), dismissal is appropriate where a court (1) construes the material allegations in the complaint, with all reasonable inferences to be drawn therefrom, in favor of the nonmoving party as true, and (2) finds beyond doubt, that the plaintiff could prove no set of facts in support of his claim that would entitle him to relief. Thus, Civ.R. 12(C) requires a determination that no material factual issues exist and that the movant is entitled to judgment as a matter of law.
R.C. 121.22(C) provides that “[a]ll meetings of any public body are declared to be public meetings open to the public at all times.” A “public body” includes a board of a school district. R.C. 121.22(B)(1)(a). The term “meeting” means “any prearranged discussion of the public business of the public body by a majority of its members.” R.C. 121.22(B)(2).
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 pre-arranged discussion can qualify as a meeting. Accordingly, R.C. 121.22 prohibits any private pre-arranged 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.
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 discussions of public bodies are to be conducted in a public forum, and thus, we conclude that in this instance, a pre-arranged discussion of the 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.
This conclusion is consistent with the mandate of R.C. 121.22(A) that the statute “shall be liberally construed to require public officials to take official action and to conduct all deliberations upon official business only in open meetings unless the subject matter is specifically excepted by law.”
Allowing public bodies to avoid the requirements of the Open Meetings Act by discussing public business via serial electronic communications subverts the purpose of the act.
Given the General Assembly’s exhortation that the Open Meetings Act “shall be liberally construed to require public officials to take official action and to conduct all deliberations upon official business only in open meetings,” R.C. 121.22(A), we must be wary of any attempt to avoid the transparency that the public deserves. As one commentator recently noted: As technological advances revolutionize communication patterns in the private and public sectors, government actors must consider their reactions carefully. Public representatives may take advantage of modern technology to improve communications with constituents and to operate more efficiently. However, this progress must be made with an eye to complying with certain statutory restrictions placed on public bodies.
It may well be a good idea for the General Assembly to consider expanding the reach of the law to prohibit a majority of members of a public body from e-mailing each other to avoid the Sunshine Law. It should re-examine the law and take action to ensure that the Sunshine Law will continue to promote transparency in government as technology changes.
But a majority of this court should not add language that has not been fully considered by the public’s legislative representatives. The unintended consequences of broadening the word “meeting” beyond its current definition could affect adversely how members of public bodies do their business.
Taking the material allegations in the amended complaint as true and construing all reasonable inferences in favor of White, in accord with State ex rel. Midwest Pride IV, 75 Ohio St.3d at 570, 664 N.E.2d 931, we conclude that White may be able to prove a set of facts to support his claim that may entitle him to relief. As demonstrated in this case, serial e-mail communications by a majority of board members regarding a response to public criticism of the board may constitute a private, pre-arranged discussion of public business in violation of R.C. 121.22 if they meet the requirements of the statute. Accordingly, the judgment of the appellate court affirming the trial court’s dismissal of White’s complaint pursuant to Civ.R. 12(C) is reversed, and the cause is remanded to the trial court for further proceedings consistent with this opinion.
For more information, go to http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2016/2016-Ohio-2770.pdf.
“The Internet has made everything from shopping and dating more convenient, but circumventing the public’s right to know isn’t one of them. The court’s decision is a warning to any politician who tries to use chicanery to conduct the people’s business in the darkness: There shall be light.”
According to the Ohio Supreme Court in White v. King, Slip Opinion No. 2016-Ohio-2770:
Adam White, a member of the Olentangy Local School District Board of Education, appealed a judgment of the Fifth District Court of Appeals affirming an order granting judgment on the pleadings in favor of the board in an action involving Ohio’s Open Meetings Act, R.C. 121.22.
The issue presented on this appeal was whether a series of e-mails between and among a majority of the members of a public body relating to a response to a newspaper editorial, which culminated in the publication of a response that the board later ratified at a public meeting qualifies as a “meeting” for purposes of R.C. 121.22.
At the time pertinent to this matter, the school board consisted of White, Julie Feasel, Kevin O’Brien, Stacy Dunbar, and president David King. The amended complaint alleges that White independently conducted an investigation into alleged improper expenditures by two athletic directors employed by the Olentangy Local School District that resulted in one resigning and both being required to reimburse the district.
Thereafter, on Sept. 25, 2012, King, Feasel, O’Brien, and Dunbar amended a board policy to require that all communications between board members and staff first pass through the district superintendent or the district treasurer. White voted against the policy change, and on Oct. 11, 2012, the Columbus Dispatch published an editorial entitled “Role Reversal” in which it praised White for his vote and implicitly criticized the other board members for adopting a restrictive policy designed to thwart White from conducting further investigations into suspected illegal spending by district employees.
King then sought to have Feasel, O’Brien, and Dunbar publicly respond to the editorial and directed that they and Superintendent Wade Lucas and district staff members Teresa Niehaus, Linda Martin, and Karen Truett collaborate and issue a response to the editorial on behalf of the board.
The board members and district employees did so in a series of e-mail exchanges. O’Brien submitted a proposed response signed by all board members except for White to the Dispatch. King then submitted a final response to the Dispatch that he signed in his capacity as board president indicating that Feasel, O’Brien, and Dunbar consented to its publication. The Dispatch published that response on October 27, 2012.
Approximately six months later, White filed this lawsuit against King, Feasel, O’Brien, and Dunbar, alleging that they had violated the Open Meetings Act.
That same day, at a regular board meeting, White advised the board of the lawsuit and moved that “no public monies be spent defending the four board members, or in the alternative, if any public monies are spent defending the four board members, those members agree to reimburse the district for any monies spent.”
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The motion died for lack of a second. King, Feasel, O’Brien, and Dunbar then voted to publicly ratify the response and deny that the board “violated the Sunshine Law.” White abstained from these votes.
The board members answered the complaint and moved for judgment on the pleadings. White then moved for leave to amend his complaint and add the board itself as a defendant. The trial court granted White’s motion, ordered the clerk to file the amended complaint instanter, and denied the motion for judgment on the pleadings as moot.
In the amended complaint, White sought a declaratory judgment that the board and other board members violated the Open Meetings Act, statutory damages, a temporary restraining order, and injunctive relief. The respondents answered and jointly moved for judgment on the pleadings pursuant to Civ.R. 12(C).
The trial court determined that King, Feasel, O’Brien, and Dunbar had immunity and were entitled to judgment on the pleadings in their individual capacities. The court also granted the board’s motion for judgment on the pleadings for three reasons: no prearranged discussion of public business had occurred because the communications among the board members originated with an unsolicited e-mail from King, R.C. 121.22 does not apply to e-mails, and at the time of the e-mail exchange, there was no pending rule or resolution before the board.
On appeal, White challenged the court’s ruling only with respect to the board. In affirming, the appellate court held that 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. And, despite the fact that the board later ratified the response to the editorial, ratification did not retroactively create a prearranged discussion of public business via e-mails. Finally, the appellate court stated that “mere discussion of an issue of public concern does not mean there were deliberations under the statute.”
White presented two propositions of law, which we, the Ohio Supreme Court, accepted:
Under the Ohio Open Meetings Statute, Ohio Rev. Code §121.22, liberally construed, private deliberations concerning official business are prohibited, whether such deliberations are conducted in person at an actual face-to-face meeting or by way of a virtual meeting using any other form of electronic communication such as telephone, e-mail, voicemail, or text messages.
Under the Ohio Open Meetings Statute, Ohio Rev. Code §121.22, when a board of education formally votes to ratify a prior action, the ratified action constitutes “official business” under the Statute.
White maintains that he has established an Open Meetings Act violation in that King pre-arranged a private discussion regarding a response to a Columbus Dispatch editorial, a majority of the board members and district staff participated in that discussion in their official capacities, and that discussion resulted in a policy statement that the board later ratified. He also argues that sanctioning public bodies’ avoidance of R.C. 121.22 by discussing public business electronically subverts the purpose of the law and that incremental electronic communications violate the law, relying on State ex rel. Cincinnati Post v. Cincinnati, 76 Ohio St.3d 540, 668 N.E.2d 903 (1996).
The board responds that the amended complaint fails to establish that a meeting occurred for purposes of the Open Meetings Act, asserting that the law does not apply to e-mails because it does not mention electronic communications, even though the General Assembly has amended it several times since 2005, when a court of appeals held that it did not apply to e-mail. In addition, the board argues that discussions about a response to a newspaper editorial do not involve public business.
Only private deliberations on a pending rule or resolution can violate R.C. 121.22, and in this case, the policy vote occurred before the publication of the editorial, and the board’s decision to later ratify its response to the editorial to defend against a lawsuit did not retroactively convert the prior e-mails into a discussion of public business.
The issue here is whether an e-mail discussion by a majority of the members of a public body for the purpose of drafting a response to an editorial that is subsequently ratified at a public meeting qualifies as a meeting for purposes of R.C. 121.22.
In State ex rel. Midwest Pride IV, Inc. v. Pontious, 75 Ohio St.3d 565, 570, 664 N.E.2d 931 (1996), we explained: Under Civ.R. 12(C), dismissal is appropriate where a court (1) construes the material allegations in the complaint, with all reasonable inferences to be drawn therefrom, in favor of the nonmoving party as true, and (2) finds beyond doubt, that the plaintiff could prove no set of facts in support of his claim that would entitle him to relief. Thus, Civ.R. 12(C) requires a determination that no material factual issues exist and that the movant is entitled to judgment as a matter of law.
R.C. 121.22(C) provides that “[a]ll meetings of any public body are declared to be public meetings open to the public at all times.” A “public body” includes a board of a school district. R.C. 121.22(B)(1)(a). The term “meeting” means “any prearranged discussion of the public business of the public body by a majority of its members.” R.C. 121.22(B)(2).
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 pre-arranged discussion can qualify as a meeting. Accordingly, R.C. 121.22 prohibits any private pre-arranged 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.
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 discussions of public bodies are to be conducted in a public forum, and thus, we conclude that in this instance, a pre-arranged discussion of the 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.
This conclusion is consistent with the mandate of R.C. 121.22(A) that the statute “shall be liberally construed to require public officials to take official action and to conduct all deliberations upon official business only in open meetings unless the subject matter is specifically excepted by law.”
Allowing public bodies to avoid the requirements of the Open Meetings Act by discussing public business via serial electronic communications subverts the purpose of the act.
Given the General Assembly’s exhortation that the Open Meetings Act “shall be liberally construed to require public officials to take official action and to conduct all deliberations upon official business only in open meetings,” R.C. 121.22(A), we must be wary of any attempt to avoid the transparency that the public deserves. As one commentator recently noted: As technological advances revolutionize communication patterns in the private and public sectors, government actors must consider their reactions carefully. Public representatives may take advantage of modern technology to improve communications with constituents and to operate more efficiently. However, this progress must be made with an eye to complying with certain statutory restrictions placed on public bodies.
It may well be a good idea for the General Assembly to consider expanding the reach of the law to prohibit a majority of members of a public body from e-mailing each other to avoid the Sunshine Law. It should re-examine the law and take action to ensure that the Sunshine Law will continue to promote transparency in government as technology changes.
But a majority of this court should not add language that has not been fully considered by the public’s legislative representatives. The unintended consequences of broadening the word “meeting” beyond its current definition could affect adversely how members of public bodies do their business.
Taking the material allegations in the amended complaint as true and construing all reasonable inferences in favor of White, in accord with State ex rel. Midwest Pride IV, 75 Ohio St.3d at 570, 664 N.E.2d 931, we conclude that White may be able to prove a set of facts to support his claim that may entitle him to relief. As demonstrated in this case, serial e-mail communications by a majority of board members regarding a response to public criticism of the board may constitute a private, pre-arranged discussion of public business in violation of R.C. 121.22 if they meet the requirements of the statute. Accordingly, the judgment of the appellate court affirming the trial court’s dismissal of White’s complaint pursuant to Civ.R. 12(C) is reversed, and the cause is remanded to the trial court for further proceedings consistent with this opinion.
For more information, go to http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2016/2016-Ohio-2770.pdf.