The Scioto County Candor
“A popular government, without popular information, or the means of acquiring it, is but a prologue to a farce or a tragedy; or, perhaps both. Knowledge will forever govern ignorance: And a people who mean to be their own governors, must arm themselves with the power which knowledge gives” — James Madison
It has been more than decade since Portsmouth residents Teresa and Robert Mollette won their case against the City after alleging that Portsmouth City Council had violated Ohio Sunshine laws after Council authorized the mayor to enter into negotiations to purchase a building, a decision the Mollettes argued occurred as a result of private deliberations. According to Scioto County Court of Appeals Case No. 07CA3206, judgement was found in favor of the Mollettes and “the trial court invalidated the ordinance and enjoined the city council from deliberating in any executive sessions, i.e., closed to the public.”
Now, several years later, the City is once again suspected of acting in violation of Ohio Sunshine Laws, keeping the public uninformed of matters that have led to actions that include the firing of City Manager Derek Allen.
Allen was fired with a 4-2 vote at the Dec. 18 Council meeting. According to Council members, the decision to fire Allen came after he refused to respond to allegations presented by Council in executive session. Since that time, Allen has been rehired and placed on paid administrative leave while he and the City worked with a mediator. That has not progressed as planned, so Council is now planning a special meeting in order to again attempt to hire outside counsel to represent the City in Allen’s firing. Council made this attempt made previously, but it was voted down. The City’s attorney is City Solicitor John Haas, who serves in an elected seat.
Since Allen’s firing, local citizens and business owners have come out in support of and against the City Manager. With little facts released regarding the matter, both sides have been pushing for more information. Specifically, the local community has been flooding Council chambers hoping to discover how and why Allen was originally terminated.
Emails between Council members have since been released by Reese Brown, Energy Advisor for Stand Energy Corporation, emails which depict Council members discussing Allen’s firing days before the event took place. The email chains include four of the six Council members (the same four of voted in favor of firing Allen) — Second Ward Councilwoman Jo Ann Aeh, Fourth Ward Councilman Jim Kalb, Fifth Ward Councilman Gene Meadows and Sixth Ward Councilman Tom Lowe. Not included in the emails were First Ward Councilman Kevin W. Johnson and Third Ward Councilman Kevin E. Johnson.
The emails occur between 12:50 a.m. on Dec. 15 and 11:08 a.m. Dec. 18, the day of the firing and depict Council members gathering information against Allen, working on a co-authored document against the City Manager and planning to meet to further discuss the matter in advance of the Council meeting to take place that evening. The four members of council even allude to the potential firing of the City Manager.
“I have used the items I felt necessary to provide enough information to terminate for cause if that is how a member chooses to vote. I tried to list different items as listed in the contract including a brief definition when necessary. I know there are some other items that could be included but I wanted to put the ones that were the most solid and keep the others in had in case additional information was needed,” Meadows stated in an email chain which has the simple subject line of “document.”
Kalb responds at 1:10 a.m. on Monday by explaining that both he and Aeh had updated the document, stating, “Hello Gene. I worked with your document by changing the incidents under mis-mal and nonfeasance. I think they fit the definitions better (just my opinion). I added a couple of non-disputable items for better flow, reformatted and added some closing comments to the document. I shared this with Jo Ann who corrected some punctuation and wording and she approved it. Let’s get together before the 5 o’clock meeting to discuss the changes and how this ‘event’ will transpire. Text or call me in the PM.”
Meadows responds with some addition edit information and agrees that the group should meet prior to the public Council meeting approaching.
At 11:08 a.m., seven hours before the meeting in which Allen was fired, Aeh responded to the emails by stating, “You guys put words together very well. I do have one question. The next to the last paragraph states that a “motion” is being made. Does this mean that if he does not choose to resign, this will be read at the meeting and a vote taken to dismiss him? “
In the emails provided, that question went unanswered.
Kalb simply responded by stating, “How about Burger King @ 4:00 for a Coke?,” and both Meadows and Aeh agreed.
“The Open Meetings Act requires public bodies in Ohio to take official action and conduct all deliberations upon official business only in open meetings where the public may attend and observe,” the Ohio Sunshine Laws Manual states. “Public bodies must provide advance notice to the public indicating when and where each meeting will take place and, in the case of special meetings, the specific topics that the public body will discuss. The public body must take full and accurate minutes of all meetings and make these minutes available to the public, except in the case of permissible executive sessions. Executive sessions are closed-door sessions convened by a public body, after a roll call vote, and attended by only the members of the public body and persons they invite. A public body may hold an executive session only for a few specific purposes, which are listed in the law. Further, no vote or other decision-making on the matter(s) discussed may take place during the executive session.”
Ohio’s Open Meetings Act defines a meeting as:
any pre-arranged gathering
any gathering of the majority of members of a public office
any gathering for the purpose of discussing public business.
The 2017 Sunshine Laws Resource Manual further states, “For there to be a ‘meeting’ as defined under the Open Meetings Act, ‘a majority of a public body’s members must come together.’ The requirement that a gathering of a majority of the members of a public body constitutes a meeting applies to the public body as a whole and also to the separate memberships of all committees and subcommittees of that body. For instance, if a council is comprised of seven members, four constitute a majority in determining whether the council as a whole is conducting a ‘meeting.’ If the council appoints a three-member finance committee, two of those members would constitute a majority of the finance committee.”
Ohio law dictates that such meetings must be public.
“The Open Meetings Act declares all meetings of a public body to be public meetings open to the public at all times,” the Ohio Attorney General’s Office states. “The General Assembly mandates that the Act be liberally construed to require that public officials take official action and ‘conduct all deliberations upon official business only in open meetings unless the subject matter is specifically excepted by law.’”
Ohio law further dictates that the public must be notified of such meetings in advance, such meetings must be held in a public venue and accurate minutes of such meetings must be kept.
According to the Ohio Sunshine Manual, “One court has found that neither an unsolicited and unexpected email sent from one board member to other board members, nor a spontaneous one-on-one telephone conversation between two members of a five member board were a prearranged meeting. However, the ‘prearranged’ element does not require the parties to participate at the same time, and a series of emails exchanged among a majority of board members can constitute a ‘prearranged gathering’ even when the emails started with one board member sending an unsolicited email to other board members.”
The manual further states, “the Ohio Supreme Court recently held that discussions of public business may also be conducted over any other media, such as the telephone, video conference, email, text, or tweet. In other words, just because a discussion did not occur in person does not mean it is exempt from the requirements of the Open Meetings Act.”
According to Ohio law, any person who feels that a public body has violated Sunshine laws can file an action in common pleas court, which can then issue an injunction.
For a better understanding of Ohio Sunshine laws, visithttp://www.ohioattorneygeneral.gov/yellowbook.
Portsmouth City Council has set the upcoming special meeting for 6:30 p.m. Tue., Jan. 30 in Council Chambers on the second floor of the Muncipal Building on Second Street in Portsmouth.