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Member since 23 June 2011 | Blog

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Comment 23 Jun 2011

Agree re boring.  I couldn't even read the whole thing myself....  Just thought it might be interesting for people who care what the rules are on this stuff (admittedly that is the same small group who find the tax code fascinating, TiVo PBS, and left high school without kissing a girl).  Looking forward to participating on the board.  This site is awesome.

Comment 23 Jun 2011

Ramzy, love your stuff and think you do some of the best and most intelligent work out there.  I am a lawyer in Chicago, but grew up in a Columbus suburb and went to Ohio St and have been a fan all my life.  Read your post above and wanted to raise a few issues.

First, in the interests of accuracy, Marion Little is a he.  Also, he is not in-house counsel at WBNS or Dispatch.  He's outside counsel at one of the most elite (if not most elite) law firms in Columbus, and his firm has been retained by WBNS, Dispatch, as well as many other large companies, to represent them in all kinds of matters.  As such, saying he's "down the hall" is a little misleading.  WBNS and the Dispatch are among his clients (which WBNS disclosed), but it is not like they are citing the statement of an employee who works in the building.  Not saying he isn't their lawyer, but just making clear the relationship.

Second, your cite to Ohio "law" I think is taken from the Ohio AG FAQ page you linked to; I did not see it anyplace in The Ohio Open Meeting Act or any cite to that language in the Sunshine law manual put out by the State.  I agree that your interpretation of that answer to the Frequently Asked Question is spot on, but not sure that is the whole story. If you look at the Ohio Sunshine law manual itself, the critical issue here seems to be the definition of a "meeting" and whether or not "the public business" is being discussed at a meeting including a majority of the members of a public body.  Here there was clearly a meeting, nobody is debating a majority of the Trustees were present, and so the only issue is whether the purpose of the meeting on Wednesday night was to "discuss public business." 

In the context of The Ohio Open Meetings Act, "'discussion' is the exchange of words, comments or ideas by the members of a public body; 'deliberation' means the act of weighing and examining reasons for and against a choice."  The Sunshine manual goes on to state: "In evaluating whether particular gatherings of public officials constituted “meetings,” several courts have opined that the Ohio Open Meetings Act “is intended to apply to situations where there has been actual formal action taken; to wit, formal deliberation concerning the public business.”  (See pp. 82-83)  Taking into account the intentionally broad definitions of "discussion" and "deliberation" under the Act, I think there is a pretty good argument that if there was back-and-forth between members of the BOT examining reasons on this subject that that gathering was a "meeting" under the OOMA.  Even if this was not a formal meeting but a wide-ranging working session or something like that, such a gathering is covered under the law.  "'Work sessions' or 'workshops' are 'meetings' when public business is discussed among a majority of the members of a public body at a prearranged time.  These work sessions must be open to the public, properly noticed, and minutes must be maintained, just as with any other meeting."  (Sunshine Manual p. 83). 

I don't practice in this area and am not even admitted in Ohio, so I am largely reading this stuff just like you are.  I could be completely wrong and I'm not providing legal advice.  That said, my quick read is that Little and WBNS are not so far off in their assertions as you've portrayed and they may have a point.  I agree with your last paragraph regarding the great state of Ohio and the privilege we have to live in a place with Sunshine laws which permit the community to know what officials at public institutions are doing on our behalf.  I don't think transparency is ever a bad thing.  I also get the emotional response to the continual piling on by the media to everything Ohio State has been doing and can see why this seems like a continuation of a narrative, and part of a strategy by local media to break the big story even where there isn't one.  Just my two cents.