Local governments: Be careful using consent agendas

Public bodies across the state utilize consent agendas during their public meetings to streamline certain routine items. Typically, these items include approval of minutes, payment of bills, acknowledgement of staff reports and routine business. Rather than individually vote on each item, public bodies package them into a single agenda item and consider them collectively in order to make public meetings more efficient.

There is nothing in the Open Meetings Act that specifically prohibits this—other than the general proposition that the public’s business must be discussed and voted upon publicly.

A recent decision by the Ohio Supreme Court, however, may limit the use of consent agendas moving forward. In State ex rel. Ames v. Portage Cty. Bd. of Commrs., Slip Opinion No. 2021-Ohio-2374, the court considered a meeting of the Portage County Solid Waste Management District, which happened to occur during a recess of a meeting of the Portage County Board of County Commissioners. During the solid waste management district meeting, the only action item the board took was to adopt the consent agenda—which consisted of approving the prior meeting’s minutes and three separate resolutions. Because there was no regular agenda, the board adjourned after one minute and returned to the Board of County Commissioners meeting. The court reasoned that, in this case, the board’s use of a consent agenda “constructively close[d] its public meetings” which is an impermissible way to not comply with the Open Meetings Act. 

While the court does not suggest that consent agendas are a per se violation of the Open Meetings Act, the court does acknowledge that facts may exist where the use of this tool may not be permissible. As this case continues below on remand, it will be important to monitor future developments on the future of consent agendas. Speak with your legal counsel to ensure that your public body is complying with the Open Meetings Act.