Open Book

By: Mark W. Altier, Director of Open Government for Ohio Attorney General Dave Yost

Differing positions that pitted one member of an Ohio board of education against his four colleagues led to the decision of the Ohio Supreme Court in White v. King, 147 Ohio St. 3d 74, 2016-Ohio-2770, 60 N.E. 3d 1234, 2016 Ohio LEXIS 1157, 2016 WL 2342968. The litigation stemmed from the time when the board of the Olentangy Local School District (Delaware/Franklin counties) was made up of Adam White, Julie Feasel, Kevin O’Brien and Stacy Dunbar, plus board President David King.

White independently investigated allegations that two district employees had improperly spent district funds. Subsequently, one of the employees resigned and the other reimbursed the district. King, Feasel, O’Brien and Dunbar then amended a board policy to require that all communications from members of the board to district employees first pass through the district superintendent or treasurer. White voted against the proposal. On Oct. 11, 2012, The Columbus Dispatch published an editorial praising White for his actions and implicitly criticizing the other board members for their response.

King then sought to have Feasel, O’Brien and Dunbar join him in a public response to the editorial and directed the district superintendent and some district employees to help. The board members and district staff engaged in this process through a series of email exchanges. Thereafter, O’Brien submitted a proposed response signed by all the board members except White to The Dispatch, which published the response on Oct. 27, 2012.

About six months later, White sued King, Feasel, O’Brien and Dunbar, alleging that they had violated the Open Meetings Act. The defendant members of the board answered the complaint and moved for judgment on the pleadings. White’s motion for leave to amend his complaint and to add the board itself as a party defendant was granted.

The trial court ruled that the individual board members were immune from suit and granted the board’s motion for judgment on the pleadings on the grounds that no pre-arranged discussion of public business had occurred because the communications among board members originated with an unsolicited email. R.C. 121.22 does not apply to emails, and there was no pending rule or resolution before the board scheduled for discussion or deliberation.

On appeal, the 5th District Court of Appeals affirmed the decision of the trial court, finding that the definition of “meeting” set out in R.C. 121.22 does not include sporadic emails. In addition, even though the four board members ratified the response after it was provided to The Dispatch, there had not been a pre-arranged discussion of public business. The court of appeals noted that the “mere discussion of an issue of public concern does not mean there were deliberations under the statute.”

Justice O’Donnell, writing for a five-member majority of the Ohio Supreme Court, addressed the issue of “whether an e-mail discussion by a majority of the members of a public body for the purposes of drafting a response to an editorial that is subsequently ratified at a public meeting qualified as a meeting for purposes of R.C. 121.22.”

He noted that, under R.C. 121.22(C), the meetings of all public bodies, including boards of school districts, are “declared to be public meetings open to the public at all times” and that the term “meeting” includes “any prearranged discussion of the public business of the public body by a majority of its members. R.C. 121.22(B)(2).”

The majority of the court noted that nothing “in the plain language of R.C. 121.22(B)(2)   expressly mandates that a ‘meeting’ occur face to face,” finding that public meetings may be conducted “face to face, telephonically, by video conference; or electronically, by e-mail, text, tweet, or other form of communication.”

The opinion concluded that – because the board president directed district employees to help prepare the response, which subsequently was ratified by a majority of the board – it falls within the purview of the board’s duties, functions and jurisdiction. The response essentially falls under “public business,” the opinion said, subjecting the related deliberations to the requirements of the Open Meetings Act.

In a dissent, in which she is joined by Chief Justice O’Connor, Justice Lanzinger criticized the majority opinion as a “judicial rewrite,” noting that the 5th District and two other appellate courts have refused to apply the Open Meetings Act to email exchanges. The dissent argues that “meetings” differ from other types of communications in that they are events or gatherings, which involve real-time communication.

Justice Lanzinger acknowledged, however, that discussions via email may constitute a meeting in situations where a pre-arrangement is made for a majority of the members of a public body to be available at a pre-determined date and time for the purpose of exchanging emails about a matter of public business.