Open Letter to Council - It's time to do all of our debate in public

Update:

The Facebook discussions that occurred today didn't even come close to addressing the point of the original article which was that behind the scenes politicking has for years been stressful on members of council  and a blight on getting good decisions from our city government.  Nor did it achieve the goal of getting our new council members to commit to driving more of these types of discussions into public meetings.  Instead it turned into a discussion on what is or is not allowed under the Ohio Sunshine laws.  Understanding this is important and during the Facebook discussions Mr. Tim Hart took the time to research and post a discussion on a couple Ohio court decisions.  I've cut and pasted some of the information he posted.  My original post can be found after that. 

The intent of the "Sunshine Law" is to require governmental bodies to deliberate public issues in public. See Moraine v. Montgomery County Board of Commissioners (1981), 67 Ohio St.2d 139, 423 N.E.2d 184. A "meeting" is defined by the statute to mean "any pre-arranged discussion of the public business of the public body by a majority of its members." R.C. 121.22(B)(2). Thus, a claim for a violation of the "Sunshine Law" must set forth the existence of the following elements: a (1) prearranged (2) discussion (3) of the public business of the public body in question (4) by a  Delaware County, Case No. 14 CAE 02 0010 7 majority of its members. See State ex rel. Schuette v. Liberty Twp. Board of Trustees, 5th Dist. Delaware No. 03-CAH-11064, 2004-Ohio-4431, ¶ 29. {¶24}. The case of Haverkos v. Northwest Local School Dist. Bd. of Edn., 1st Dist. Hamilton Nos. C-040578, C-040589, 995 N.E.2d 862, 2005-Ohio-3489, bears a number of similarities to the appeal sub judice. The dispute in Haverkos also had its genesis in a newspaper article about a school board's actions, to which four members of said board ultimately responded with a jointly-signed letter. Id. at ¶1. Communication via a single e-mail and a few telephone calls about formulating the response letter took place in the meantime between certain board members, and the letter was later read aloud at the board's next public meeting. Id. at ¶ 2. Mark Haverkos, eventually the appellant/cross-appellee in the matter, then filed a suit under R.C. 121.22 against the board and four members thereof. Id. at ¶ 3. {¶25}. In ruling in favor of the board members, the First District Court in Haverkos first found that there had been no pre-arranged meeting for purposes of the Sunshine Law, and at no time had there been a meeting of the majority of the board. The Court specifically concluded under the facts of the case that "[o]ne-on-one conversations between individual board members [do] not constitute a 'meeting' under the Sunshine Law." Id. at ¶ 7, citing State ex rel. Floyd v. Rockhill Local Bd. of Edn. (Feb. 10, 1998), 4th Dist. Lawrence No. 1862, 1988 WL 17190. The First District Court also considered the import of an e-mail message as a form of "discussion" Ohio's Sunshine Law. Id. at ¶ 9. The Court reviewed corresponding statutes from other states, and noted that although Ohio's statute had been amended as recently as 2002, no language regarding modern electronic communications was to be found: "Since the legislature chose not to  Delaware County, Case No. 14 CAE 02 0010 8 include electronic communication in the statute, we hold Ohio's Sunshine Law does not cover e-mails" Id. at ¶ 9. Furthermore, the Court recognized that as far as the claim of public business being discussed privately by board members, the response letter "did not mention any pending rule or resolution before the board." Id. at ¶ 10. Finally, the Court noted that "*** the contacts were informal and not pre-arranged." Id. at ¶ 11 {¶26}. We recognize that the case sub judice involves much more expansive use of emails; perhaps several dozen if "copied" recipient formats are counted individually. However, appellant herein never alleged that appellees improperly met in person. As in Haverkos, we conclude that if the Generally Assembly had intended to include sporadic emails in the statutory definition of "meeting," it would have said so. As an appellate court, we ordinarily must presume that the legislature means what it says. See State v. Link, 155 Ohio App.3d 585, 2003-Ohio-6798, 802 N.E.2d 680, ¶ 17, citing State v. Virasayachack (2000), 138 Ohio App.3d 570, 741 N.E.2d 943. Furthermore, at the time the emails were exchanged, there was no pending rule or resolution before the Board. Even if the Board "ratified" the rebuttal letter in April 2013, after appellant filed his civil action in this case, this was six months after said letter was published in the Dispatch. We find no merit in appellant's claim that the Board's action at that time somehow retroactively created a prearranged discussion of public business via e-mails. Moreover, the mere discussion of an issue of public concern does not mean there were deliberations under the statute. See Haverkos, supra, at

Next:

Round-robin or Serial “Meetings”
Unless two members constitutes a majority, isolated one-on-one conversations between individual
members of a public body regarding its business, either in person or by telephone, do not violate the
Ohio Open Meetings Act.869 However, a public body may not “circumvent the requirements of the
statute by setting up back-to-back meetings of less than a majority of its members, with the same
topics of public business discussed at each.”870 Such conversations may be considered multiple parts
of the same, improperly private, “meeting.”871
c. Discussing Public Business
With narrow exceptions, the Ohio Open Meetings Act requires the members of a public body to
discuss and deliberate on official business only in open meetings.872 “Discussion” is the exchange of
words, comments, or ideas by the members of a public body.873 “Deliberation” means the act of
weighing and examining reasons for and against a choice.874 One court has described “deliberation”
as a thorough discussion of all factors involved, a careful weighing of positive and negative factors,
and a cautious consideration of the ramifications of the proposal, while gradually arriving at a
decision.875 Another court described the term as involving “a decisional analysis, i.e., an exchange of
views on the facts in an attempt to reach a decision.”876
In evaluating whether particular gatherings of public officials constituted “meetings,” several courts
of appeals have opined that the Open Meetings Act “is intended to apply to those situations where
there has been actual formal action taken; to wit, formal deliberations concerning the public
business.”877 Under this analysis, those courts have determined that gatherings strictly of an
investigative and information-seeking nature that do not involve actual discussion or deliberation of
public business are not “meetings” for purposes of the Open Meetings Act.878 More importantly, the
Ohio Supreme Court has not ruled as to whether “investigative and informational” gatherings are or
are not “meetings.” Consequently, public bodies should seek guidance from their legal counsel

Given the information given above I wouldn't recommend anyone trying to file a lawsuit alleging a violation in the Sunshine laws especially since he also found this information:

If any person believes that a public body has violated the Open Meetings Act, that person may file an action in a common pleas court to compel the public body to obey the Act. If an injunction is issued, the public body must correct its actions and pay court costs, a fine of $500, and reasonable attorney fees subject to possible reduction by the court. If the court does not issue an injunction, and the court finds the lawsuit was frivolous, it may order the person who filed the suit to pay the public body’s court costs and reasonable attorney fees. Any formal action of a public body that did not take place in an open meeting, or that resulted from deliberations in a meeting improperly not open to the public, or that was adopted at a meeting not properly noticed to the public, is invalid. A member of a public body who violates an injunction imposed for a violation of the Open Meetings Act may be subject to removal from office.
Like the Public Records Act, the Open Meetings Act is intended to be read broadly in favor of openness.

The is a 7 minute video produced by the Ohio Attorney General you can watch on this webpage. 

—-Original post —————————————————————————————————–
I received and open letter from three of our members of council.  First off I am concerned because in discussing this on Facebook Vice Mayor Starline posted this

Tyler Starline "NOTE: Someone asked me why this Open Letter was only signed by the 3 of us. Good question. We asked Janell, Judy, and Mark. Obviously we were not going to ask Ed, and because it is our communication to the Mayor, he was not asked.

I'm concerned because this kind of coordination may violate Ohio's sunshine law. Seeing that the parties to the letter do represent themselves and the letter as coming from council members and seeing that Vice Mayor Tyler Starline states above that there was coordination that attempted to include all the members, I am concerned. Mr Otto, and Mr. Shaw haven't had the opportunity to go through the class on the Sunshine laws. Given his authority as a lawyer and long time member of council, Vice Mayor Starline certainly should know and be able to apply the law correctly. Hopefully, he has not led his colleagues into a violation.

But even if this was not a violation I will relay that I've heard feedback from a number of former council members that tell me that one of the most distressing parts of the job is the behind the scenes pressure they receive from other members of council. It has always been my position that council and the city government needs to operate in the open to the highest degree possible.

We know that when we left the public portion of the work session last week Ms Smith was a firm backer of Ms Newby. When she came into the Council meeting on Monday she indicated she had changed her position. I am sure that this was a result of off the record discussions with other council members and probably with all three of the gentlemen. Though this would only make four members of council in the conversation and may not be a violation, it not only prevents the public from hearing the argument that caused the change in position, it also causes an undue amount of stress on other members of council. Though this incident involves the three gentlemen, the reports I received from the former members of council tell me that this has been going on for a long time and their issue was with certain members of the old guard.

Here is my open letter to Council. Stop complaining about the length and frequency of meetings just so you can rush out and privately try to convince other members to take your position. We need to conduct our business and debates in public so the residents know how decisions are made and are able to give us feedback on those decisions. This will lower the stress on council members, strengthen our processes and improve the decisions made on behalf of the residents of Huber Heights.