On Tuesday, the Ohio Supreme Court held in the case White v. King that Ohio’s Open Meetings Act prohibits any private prearranged discussion of public business by a majority of the members of a public body regardless of whether the discussion occurs face to face, telephonically, by video conference, or electronically by email, text, tweet or other form of communication.
In March 2012, Adam White, a school board member for the Olentangy Local School District Board of Education, commenced an independent investigation into certain expenditures by two athletic directors. In September 2012, the board voted 4-1 to require that all future communications between board members and staff pass first through the district superintendent or treasurer. White was the only board member who voted against the proposal.
In October 2012, the Columbus Dispatch published an editorial that criticized the board’s policies restricting direct access to administrators and personnel and favorably mentioned White’s decision to vote against the proposal. The board president proposed that a public response to the Dispatch editorial be made and directed three board members to collaborate with the district superintendent to draft a response to the Dispatch editorial. The board members did so in a series of email exchanges that excluded White. The board president submitted a final response that he signed as board president and indicated that he had the consent of three additional board members to publish the response.
In April 2013, White filed a lawsuit against the board, alleging violations of Ohio’s Open Meeting statute. At a meeting of the board, White informed the members of the board of his lawsuit. The remaining four board members voted to publicly ratify the response published by the Dispatch as its official position on the issue.
The lower courts found that there was no violation of the Open Meetings Act because the definition of “meeting” did not include sporadic emails and that the emails didn’t discuss public business because at the time they were exchanged, there was no pending rule or resolution before the board. White appealed to the Ohio Supreme Court.
RC 121.22(C) states “all meetings of any public body are declared to be public meetings open to the public at all times.” RC 121.22(B)(2) defines a “meeting” to be “any prearranged discussion of the public business of the public body by a majority of its members.”
The Ohio Supreme Court reversed the lower courts’ decisions. Writing for the majority, Justice O’Donnell wrote: “Nothing in the plain language of RC 121.22(B)(2) expressly mandates that a “meeting” occur face to face.” Allowing public bodies to avoid the requirements of the Open Meetings Act by discussing public business via electronic communications “subverts the purpose of the act,” he added. The court found that the board’s ratification of the response to the Dispatch at a public meeting proved that the response was the “public business” of the board. The court ordered the case back to the trial court for further proceedings consistent with the court’s opinion.
Justice Lanzinger wrote a dissent that argued that it was the task of the General Assembly and not the court to change the definition of “meeting” to specifically include emails and other forms of electronic communications. She disagreed with the overbroad definition and felt that the unintended consequences of the majority’s definition could adversely affect how members of public bodies do their business.