Does the OMA presume public officials mean what they say?

In late April, the Ohio Supreme Court heard oral arguments in State of Ohio ex rel. Christopher Hicks v. Clermont County Board of Commissioners, a largely contentious Open Meetings Act (OMA) appeal that may intensify public scrutiny of deliberations in executive session. The case began in January 2018, when Clermont County resident Christopher Hicks alleged that the Clermont County Board of Commissioners violated the OMA during at least 18 meetings during the prior year. Specifically, Hicks alleged that the commissioners entered into executive session during each of those meetings, but could not prove the confidential discussions were related to the reasons for closing those portions of the meeting to the public. 

Hicks admitted he had no knowledge of what transpired in the closed sessions, but argued the commissioners – and not he – must prove the substance of those conversations were lawful. The commissioners conceded that, not unlike most public bodies, formal notes weren’t taken in executive sessions. Noting that the meetings in question took place more than two years prior to their sworn testimony, neither the commissioners nor the county administrator, who had requested the executive sessions, could recall the exact nature of their discussions while in executive session. However, the commissioners argued that the complaining party must prove a violation of the OMA. That is, the commissioners must not prove their discussions during executive session complied with the OMA – instead, Hicks must prove the commissioners’ deliberations violated the OMA.   

The trial court agreed with Hicks, holding that the commissioners violated the OMA because they failed to demonstrate that the deliberations in the closed meetings aligned with the stated reasons for adjourning to executive session. The trial court awarded Hicks roughly $79,700 in attorney’s fees. In March 2021, the Twelfth District affirmed trial court’s decision.  

The commissioners and a host of amicus curiae, including the Ohio Attorney General’s Office and the Ohio Municipal League, assert that the Twelfth District’s opinion altered the legislative balance of the need for open meetings with the need to discuss some matters in private. According to the commissioners, once they properly entered executive session for reasons listed in R.C. §121.22(G), Hicks bears the burden to prove the private deliberations violated the OMA. Otherwise, a public official or employee risks violating §102.03 by disclosing information acquired in executive session that is confidential by statutory provision or that is clearly designated as confidential. This overstep is not one for the faint of heart; a violation of §102.03 classifies as a first-degree misdemeanor and is punishable by a maximum sentence of 180 days in jail and a $1,000 fine. Since the Twelfth District’s decision in Hicks, some public bodies have refused to accept risk of a potentially jailable offense, instead opting to discuss matters rightfully considered confidential under §121.22(G) in meetings open to the public. 

The Twelfth District’s decision begs the question: if a public body must prove deliberations in executive session did not violate the OMA, potentially years after the meeting and once memories have faded, how can a public body maintain and disclose this information without violating §102.03? The question is further complicated by the public body’s obligations under the Ohio Public Records Act (PRA). Notes transcribed by a public official or employee while in executive session to later prove compliance with OMA are likely public records subject to disclosure under the PRA, and, potentially, a separate violation of §102.03. 

Both parties are hopeful the Court will clarify whether the relator or the public body maintains the burden of proof in similar OMA claims. Until then, the Twelfth District’s decision in Hicks forces public officials and employees to choose one or more less than ideal alternatives when discussing confidential matters. Must a public body transcribe notes of deliberations in executive session and risk transcribing too much in violation of §102.03 or too little in violation of the OMA? Should the public body’s counsel attend executive session and transcribe notes of the deliberations in anticipation of litigation, though it’s uncertain whether such records would be exempt from disclosure under the attorney work-product doctrine? Should the public officials and employees rely solely on memory of deliberations in executive session and risk being unable to recollect those memories if challenged, similar to the commissioners in Hicks? Or, should the public body conduct matters otherwise deemed confidential under §121.22(G) in meetings open to the public? The answer may demand a case-by-case analysis, dependent upon the nature of the public body, the cause for the meeting and the requested reason to adjourn to executive session. While awaiting further clarity from the Court, public bodies should be mindful of this risk when conducting any closed meeting under §121.22(G).