Understanding Ohio's Laws: The Open Meetings Act

• Jurisdiction: Ohio,United States
• Law Firm: Mansour Gavin
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation
• Author: Diane A. Calta
• Published date: 03 January 2023

For local municipal elected officials, council clerks, administrators and especially law directors, it is not uncommon to be presented with the question "Can city council convene into an executive session (a closed door not open to the public session) to discuss _____?" Fill in the blank with whatever comes to mind and the answer depends on whether the reason for the executive session is expressly spelled out in Ohio Revised Code 121.22(G). For purposes of a few examples, under what is known as the Open Meetings Act, a public body may convene into an executive session to discuss with their legal counsel disputes with the public body that are the subject of pending or imminent court action or to prepare for collective bargaining sessions with public employees concerning their compensation or other terms and conditions of their employment. Unless otherwise spelled out in Ohio Revised Code 121.22(G), public bodies in Ohio are required to conduct all deliberations on official business in meetings that are open to the public.

On December 1, 2022, the Ohio Supreme Court announced its decision in State ex rel. Hicks v. Clermont County Board of Commissioners, Slip Opinion No. 2022-Ohio-4237, confirming the burden shifting analysis for plaintiffs alleging a violation of the Open Meetings Act. In its decision, the Court announced that even though the Open Meetings Act should be liberally construed, no construction of the Open Meetings Act, even a liberal one, changes the default rule that a plaintiff alleging a violation of the act bears the burden of proving the violations.

In Hicks, a complaint was filed against the Clermont County Board of Commissioners, citing that they violated the Open Meetings Act on multiple occasions in 2017. It was alleged that the board repeatedly entered into executive sessions after passing motions that included a "laundry list" of reasons for entering an executive session as opposed to identifying the specific issues the board intended to discuss in an executive session. The trial court found that the Open Meetings Act had been violated and awarded the plaintiff upwards of almost $80,000 in attorney fees.

On appeal to the Twelfth District Court of Appeals, the court relied upon the burden shifting analysis it set out in State ex rel. Hardin v. Clermont Cty. Bd. of Elections, 2012-Ohio-2569, and found that the board failed to carry its burden to produce evidence that it entered into the executive sessions for a valid statutory reason...