Ohio Supreme Court willing to “presume” proper conduct in executive session
The Open Meetings Act (“OMA”) requires Ohio’s public entities to conduct all deliberations and make all decisions in meetings that are open to the public. However, a public body can meet in executive session to discuss specific matters outside of the public eye. A public body must perform a roll call vote to enter into executive session and then restrict its discussion to the purposes for which it entered that private session once it has convened.
The general public has always been left to assume that the public body was properly restricting its discussions in executive session since the conversations occur behind closed doors and no minutes are taken. The question of who must prove that discussions occurring in executive session comply with Ohio law was placed before the Ohio Supreme Court this year. Through its decision in State ex rel. Hicks v. Clermont Cty. Bd. of Comm’rs, Slip Opinion No. 2022-Ohio-4237, the court squarely placed that burden on the individual claiming that a violation has occurred.
In early 2021, the Twelfth District Court of Appeals addressed a challenge to several executive sessions held by the Clermont County Board of Commissioners. State ex rel. Hicks v. Clermont Cty. Bd. of Comm’rs, 12th Dist. Clermont No. CA2020-06-032, 2021-Ohio-998. The motions to enter into executive session contained the laundry list of reasons outlined in R.C. 121.22(G)(1) —“[t]o consider the appointment, employment, dismissal, discipline, promotion, demotion, or compensation of a public employee or official . . .” The meeting minutes listed out the motion, including the laundry list of reasons, but didn’t contain additional information about what occurred in executive session, which is a common practice for public bodies. The appellate court found that, because the Board of Commissioners was unable to present evidence of what it specifically discussed in executive session, the board failed to prove that it complied with Ohio’s Open Meetings Act.
The matter was appealed to the Supreme Court of Ohio, where the Court considered two issues: 1) Who has the burden of proving a claim brought under the Open Meetings Act? (Does the citizen who sues a public body have to prove the violation or does the public body have to prove that no violation occurred?); and 2) Is there a presumption of regularity that extends to public entities when they enter into executive session? The Court upheld the position advanced by the public body in both instances, making it clear that the burden of proof in Open Meetings Act cases remains with the individual bringing the lawsuit and that a presumption of regularity applies to the bodies’ proceedings. See Hicks, Slip Opinion No. 2022-Ohio-4237 at ¶¶ 11 and 22-23.
But the Court didn’t stop there. The Hicks decision provides additional good news for public entities across the State in two areas.
First, meeting minutes. In light of the Twelfth District’s decision, public entities were uncertain about what was required in their meeting minutes as it related to executive session. If the burden was on the public entity to prove it didn’t violate the OMA, and if the meeting minutes didn’t have any details, how could public entities defend themselves in a lawsuit? It seemed that the answer was to keep more detailed minutes as it related to executive session, which would undermine the purpose of executive session. In Hicks, the Court clarified that “the only thing the public body is required to record in its executive-session minutes is the statutorily permitted reason for the executive session.” Id. at ¶ 17.
Second, the motion to enter executive session. The general recommendation has been that a public body should be specific in its motion to enter executive session and not simply use a laundry list of reasons. See, e.g., Ames v. Portage Cty. Bd. of Cty. Comm’rs, 2019-Ohio-3730 (11th Dist.) (holding that public entities are required to state the particular purpose(s) for which they are entering executive session); see also State ex rel. Long v. Cardington Village Council, 92 Ohio St.3d 54 (2001) (invaliding a motion to enter executive session because it only listed “personnel”). In Hicks, though, the Court held that a public body could list all topics they might reasonably discuss in executive session, even if it included more topics than were actually discussed. Hicks, Slip Opinion No. 2022-Ohio-4237, at ¶ 33-36. This means that a public body can include all seven different personnel-related topics listed in R.C. 121.22(G)(1) in its executive session motion.
The Supreme Court’s decision in Hicks is welcome relief for many public bodies that have been awaiting this decision. It is important that public entities continue to include the statutory reason(s) for which they are entering executive session in their motions. However, so long as the meeting minutes reflect the motion and the reason, there is no need to keep minutes of what was discussed in the executive session.
