H. EXECUTIVE SESSIONS An executive session occurs when members of a public body exclude the public from a portion of a public meeting.459 Executive sessions may be held exclusively to discuss limited matters.460 Only persons invited by the public body to join the executive session may attend.461 The public body may permit anyone it chooses to attend462 and, likewise, may exclude anyone it so chooses.463 There are seven valid reasons for a public body to adjourn into executive session, as summarized below: 1. Personnel A public body may adjourn into executive session to consider the appointment, employment, dismissal, discipline, promotion, demotion or compensation of a public employee or official, or to consider the investigation of charges or complaints against a public employee, official, licensee or regulated individual, unless the employee, official, licensee or regulated individual requests a public hearing.464 However, the law does not allow a public body to hold an executive session to consider the discipline of an elected official465 for conduct related to the performance of the elected official’s duties or to consider that person’s removal from office.46 There are restrictions associated with this exception. First, it does not give a person a substantive right to a public hearing. The right must already exist in Ohio or federal law before a person may demand one under this personnel exception.467 Second, some courts have determined that this exception may not be used unless the matters to be discussed directly affect specific personnel or regulated individuals.468 These decisions may also indicate that it is inappropriate to use this exception to discuss the creation of a new position. 2. Property A public body may adjourn into executive session to consider the purchase of property (real property and personal property, whether it is tangible or intangible).469 A public body may also adjourn into executive session to consider the sale of property by competitive bid (real or personal property) if disclosure of the information would result in a competitive advantage to the other side.470 No member of a public body may use this exception as subterfuge for providing covert information to prospective buyers or sellers.471 3. Court Action A public body may adjourn into executive session with the public body’s attorney to discuss pending or imminent court action.472 Court action is pending if a lawsuit has been commenced. Court action is imminent if it is on the point of happening or is impending.473 A public body may not use this exception to adjourn into executive session for discussions with a board member who also happens to be an attorney474 — the attorney should be the duly appointed counsel for the public body. 4. Collective Bargaining A public body may adjourn into executive session to prepare for, conduct or review collective bargaining strategy.475 5. Confidential Matters A public body may adjourn into executive session to discuss matters required to be kept confidential by federal law, federal rules or state statutes.476 6. Security Arrangements A public body may adjourn into executive session to discuss details of security arrangements and emergency response protocols where disclosure could be expected to jeopardize the security of the public body or public office.47 7. County Hospitals’ Trade Secrets A public body may adjourn into executive session to discuss trade secrets of a county hospital organized under Ohio Rev. Code Chapter 339.478
There are restrictions on the discussions held in executive session. First, there can be no decision-making (actual voting) in the executive session.479 Second, even when non-excepted matters are so intertwined with matters permitted to be discussed in executive session, the non-excepted matters may not be discussed in private.480 However, it does not appear that the Open Meetings Act will prohibit the public body or one of its members from disclosing the information discussed in executive session, unless otherwise prohibited by statute.481 If a public body is challenged in court for discussions or deliberations held in executive session, the public body has the burden of proof to establish that one of the statutory exemptions permits the executive session.482 The court will strictly construe the law in favor of openness.483 A court may look beyond the express reason stated by the public body for the executive session to find an implied or circumstantial violation of the Open Meetings Act.484
No duty to email (i.e., electronically transmit) to the requester, but do have to provide in electronic format (i.e., on CD) if requested. For example, if have a searchable database and request CD, are required to provide on CD so can still search the database as opposed to printing the database and providing the paper format.
May charge for actual costs of copying . May not charge for inspection .
Should a journalist desire select residential or familial information about a specific peace officer, parole officer, prosecuting atty, assistant prosecuting atty, correctional employee, youth services employee, firefighter or EMT that is exempt, then the journalist must put the request in writing. The request shall include the journalist’s name, title and the name and address of the journalist’s employer. The request shall state that this disclosure of the information sought would be in the public interest .
Confidential Law Enforcement Investigatory Records 172 (CLEIRs) Records that constitute confidential law enforcement investigatory records are exempt from disclosure. 173 Confidential law enforcement investigatory records” are defined as any records that pertain to a law enforcement matter 174of a criminal,175 quasi-criminal, civil, or administrative176nature and that, if released, would create a high probability of disclosing any of the following: the identity of an uncharged suspect;177 the identity of a confidential source;178 specific confidential investigatory techniques or procedures; specific investigatory work product;179 or information that would endanger the life or physical safety of law enforcement personnel, a crime victim, a witness, or a confidential information source.180 In determining whether a record constitutes a confidential law enforcement investigatory record, the courts use a two-step test.181 The record must both (a) pertain to a criminal, quasi-criminal, civil or administrative law enforcement matter, and (b) create a high probability of disclosing at least one of the five types of information highlighted above.182 If information does not meet the test, the information may not be withheld under CLEIRs. Note, however, release of the information may still be restricted under any of the other express exemptions or the catch-all exemption.183
So what do we do if we are sued?
Applicable to universities, medical colleges and state community colleges per R.C. 9.86 (determination made by Court of Claims) 2744.07: Limited to tort liability (b/c torts do not allow punitive damages). Language states: political subdivision shall indemnify and hold harmless an employee in the amount of any judgment, other than a judgment for punitive or exemplary damages obtained against the employee in a state or federal court OR as a result of a law of a foreign jurisdiction and that is for damages for injury, death, or loss to person or property caused by an act or omission in connection with a governmental or proprietary function.
OHIO’S LEGAL FRAMEWORK FOR UNIVERSITY AND COLLEGE TRUSTEES Presented by: Cheryl Hacker and Stephanie Van Meter
“ Any member of a board, commission, council, board of trustees of an institution of higher education, or other public body of the state…, who fails to attend at least three-fifths of the regular and special meetings held by that … board of trustees, or public body during any two-year period forfeits the member's position on that …board of trustees...”
“ A public official may not disclose, without appropriate authorization, any information … that is confidential because of statutory provisions, or ...because…its confidentiality is necessary to the proper conduct of government business.”
“ The board of trustees of any college or university, which receives any state funds in support thereof, shall have full power and authority on all matters relative to the administration of such college or university.”
“ Any delegation of authority by a board of trustees in other areas of responsibility shall be accompanied by appropriate standards of guidance concerning expected objectives in the exercise of such delegated authority and shall be accompanied by period review of the exercise of this delegated authority…”
Teleconferencing*, videoconferencing, and e-mail are all prohibited as ways to attend or conduct a meeting. A member must be present in person to vote, deliberate, or be counted in a quorum. O.R.C. 121.22(C)
* Teleconferencing may be allowed by statute (Ohio Board of Regents, for example)