A day before Hamilton County lawyers argued that a closed county commission meeting in January was within Ohio's Sunshine laws, Cincinnati City Council eagerly declared that all of its future meetings will be open to the public — despite concerns from its own legal staff.
During its regular April 12 meeting, city council voted 8-1 not to appeal an Ohio First Court of Appeals decision. The court ruled the city's charter doesn't allow executive sessions — closed meetings of public bodies held to discuss certain sensitive issues. Ohio's public meetings laws allow them, as long as there are no conflicts with local laws, according to the decision.
But Cincinnati's charter, the city's legal framework, says that "all meetings of the council and standing committees shall be open to the public." Citing this, The Cincinnati Enquirer sued the city after a reporter was denied access to an executive session last year about the future of City Manager John Shirey. A Hamilton County court ruled in favor of the city but was reversed by the state court of appeals.
Councilman and lawyer Pat DeWine proposed a motion to end the appeal of the court's decision at the April 12 meeting. After reviewing case law on the issue, he said there was no point in pursuing it further, noting that the appeals court's three-judge panel voted 3-0 in favor of The Enquirer.
"They had no problem deciding this issue," DeWine said.
Unless council changes its mind, the city will give up its chance to appeal the Enquirer lawsuit 45 days after the appeals court's decision, according to Deputy City Solicitor Robert Johnstone.
Johnstone disagreed with DeWine's assessment, saying a recent Ohio Supreme Court case, Cincinnati Post v. Cincinnati, established that the city could hold executive sessions as long as city council passed its own law matching the state's Sunshine laws.
"So legally we are not at all convinced that the Ohio First Court of Appeals' decision is on solid ground," Johnstone told council.
Johnstone said later the city usually calls executive sessions to discuss three subjects: personnel, real estate and lawsuits. These and other sensitive issues come up about twice a month, he said, and could prove harmful to the city if made public.
For example, he said, the city doesn't want to divulge what it's willing to pay for property during negotiations to buy land. The city still has the right to keep legal communications secret, but it will have to restrict them to paper.
Johnstone said the solicitor's office would have to consult other Ohio cities to see how they operate without executive sessions. Similar court decisions have forced Cleveland, Portsmouth and other Ohio cities to end closed meetings.
Opening (Too?) Wide
Councilman Jim Tarbell, the lone dissenting vote on April 12, said ending executive sessions won't end secret, closed-door dealings in city government and will make it harder for the city to do its business.
"It's a self-defeating proposition," Tarbell said. "It promotes more secrecy and more back-door dealing than you would have had otherwise."
The world was a different place in 1926 when the city adopted its charter form of government and total open meetings policy, he said. Personnel matters, for one thing, are a much more sensitive issue now than in 1926, he said, later adding that he agrees council should usually operate under public scrutiny.
If council members want to be held accountable by the public, just wait until the next election, Tarbell said. Besides, the city doesn't have a history of inappropriate executive sessions, he said.
DeWine acknowledged that secret discussions will continue but disagreed with Tarbell's solution.
"I certainly agree there will be things going on that I don't think should be going on," DeWine said. "But I don't think that's a reason to have executive sessions. ... I don't think allowing secret meetings will solve that problem at all."
Mayor Charlie Luken agreed, saying he preferred to put everything in front of the public in the first place because the content of executive sessions usually ends up in the news anyway. And when such leaks happen, the information is often twisted or couched in more suspicious terms than if the comments had been made in an open meeting.
And, Luken said, thinking back to all the executive sessions he's attended, he doesn't believe opening them will cause the city significant harm nor lead to more back-room dealings.
"I think (the bottom line is) it's a better way to do business," Luken said.
The public would have been better off if, for example, the rapid firing of former City Manager Gerald Newfarmer in 1993, the city's lawsuit against gun manufacturers and some development issues had not been handled in closed meetings, Luken said. But he acknowledged that council members will continue to talk behind closed doors.
"That's part of life," Luken said.
But as long as they aren't a majority — meaning five — it can't be prevented.
Councilwoman Alicia Reece said her only concern was that council members have equal access to information so they all could answer questions in a timely manner.
"I think that's been a problem since time began," Luken said.
Guarding Its Hand
Hamilton County Administrator David Krings agrees with Tarbell and isn't going to recommend that the county commission end closed meetings.
"Certainly, there's good public purpose for executive sessions," Krings said, citing some of the same reasons as Johnstone and adding that commissioners might not evaluate him as honestly if the public was watching — a key responsibility of the commission.
The county, like the city, has been dealing with a lawsuit about an executive session. Unlike the city, however, the county's charter allows closed meetings, according to Krings.
On Jan. 31, commissioners met to discuss buying the Crossett property near Paul Brown Stadium from the city, because the city needed money to pay for the decking of Fort Washington Way. In the end, they declined the purchase, but Commissioners Tom Neyer Jr. and Bob Bedinghaus pledged to give the city $2 million anyway, announcing it at a press conference that day and finalizing their vote two days later during the commission's regular weekly meeting.
Several days later, stadium tax watchdog Tim Mara filed a lawsuit arguing in part that the $2 million contribution should have been debated in a public meeting because executive sessions don't cover cash gifts.
In a court hearing on April 13, Assistant County Prosecutor Carl Stich argued that the commission didn't violate public meetings laws because the commissioners couldn't have talked separately about buying the property and contributing the $2 million. And, even if they could, the commissioners didn't vote to contribute the money until the public meeting two days later, he said.
Judge Thomas Nurre asked Mara and the county to try to resolve their dispute during the next several weeks or to expect a ruling.
The county has more of a reason to hold closed meetings because the county administrator has somewhat less authority to operate independently than the city manager, Stich said, although he couldn't immediately cite specifics.
"I don't see how you do business without executive sessions," Stich said. "It really is damaging to the taxpayers of Hamilton County to have (certain) discussions in public."
And confining legal discussions to paper won't allow a full debate, he said.
Executive sessions do tempt elected officials to stray away from proper topics such as lawsuits, said County Commissioner John Dowlin, who said he happens to agree with Mara's legal arguments.
But closed meetings still are justifiable because of the protection they provide to the taxpayers' interests, Dowlin said. And, when the meetings are abused, governments usually are held accountable by citizens or the press, as in the Mara lawsuit or the two recent city lawsuits.
A City Trend?
Five days after DeWine's motion ended executive sessions for city council, Councilman Todd Portune, chair of the Community Development and Intergovernmental Committee, asked to open up the design review process for the Reds stadium.
The city's Urban Design Review Board — a city manager-appointed board of three architects and one businessperson that reviews publicly funded projects — gave an early recommendation to the stadium design. But neither the county nor the Reds have released the models or drawings viewed at the hearing, said Portune, who disagreed with the board's decision which appeared to restrict public space around the stadium in favor of granting more space to "revenue generating program elements" for the Reds because the site is so cramped.
"These decisions should not be made in secret," Portune said.
Again, Tarbell was the lone dissenter, saying that the board should be allowed to work in private so that its members could level criticisms without them ending up in the media. Portune wasn't swayed.
City council also voted 9-0 to hold one of its weekly meetings in the evening each month on a trial basis through the summer, adopting a motion introduced by Councilman Paul Booth. Regular full council meetings are held Wednesdays at 2 p.m.
"The whole point of this is accessibility," Booth said. "Citizens can't contact us when we're on cable."
Maybe council members are pandering a bit, or maybe they're tagging a happy ending onto an embarrassing court loss. In any case, a recent Portune comment summed up city council's view — one that's very different from the county's.
"I think we have nothing to fear," he said. ©