Yesterday, the Supreme Court of Ohio issued an opinion in Hicks v. Clermont County Board of Commissioners, in which a public body was sued for violations of the Open Meetings Act (OMA). The Supreme Court determined that, when alleging a violation of the OMA, the plaintiff bears the burden of proving the violation. This ruling establishes that, in the absence of evidence showing wrongdoing, public bodies using executive sessions are presumed to have acted regularly and in compliance with law. The court also clarified that public bodies must be able to include, in motions to enter executive session, all permissible topics they might reasonably consider and that the failure to consider all topics mentioned in the motion is not a violation of the law.
OSBA’s Legal Assistance Fund participated in a brief supporting the board of county commissioners in the matter in common with associations of other public officials. The Supreme Court’s decision is favorable to public agencies and reflects the position taken by LAF and its partners in the amici curiae brief.
The case involved a complaint filed by Christopher Hicks against the Clermont County Board of Commissioners alleging that the county board had violated the OMA on multiple occasions. Hicks alleged that the county board had entered executive session after passing motions that included a laundry list of reasons for doing so rather than identifying the specific issues it intended to and did discuss.
The trial court concluded that the board failed to produce evidence showing that: (1) it entered executive session for a valid statutory reason; and (2) it did not discuss improper topics during the sessions and granted Hicks’s motion summary judgment on nine of the claims. It also awarded nearly $80,000 in attorney fees. The trial court relied on the framework established in State ex rel. Hardin v. Clermont Cty. Bd. of Elections, 2012-Ohio-2569, which created a burden shifting framework for bringing actions under the OMA. The Hardin framework required that the plaintiff bringing the action carry the initial burden of showing that a meeting occurred and that the public was excluded. The burden then shifts to the public body to produce evidence that the challenged meeting fell under one of the exceptions in the OMA. If the public body meets that burden, the plaintiff must produce evidence that the exception claimed by the public body is not applicable or valid.
In its review, the Twelfth District Court of Appeals upheld the trial court’s decision, also relying on Hardin. The court found that Hicks had met his initial burden. It found that, because the members of the board of commissioners could not recall what was discussed during the executive sessions at issue, the public agency did not meet its burden. It noted that the board had listed multiple purposes for entering its executive sessions and that it would have to show that it considered all the listed purposes during executive session. Finally, it concluded that the trial court had not abused its discretion in awarding attorney fees.
The Supreme Court of Ohio rejected the burden shifting framework set forth in Hardin and relied on by the lower courts in Hicks. The court concluded that the burden shifting rule would “require public bodies to go beyond the requirements of RC 121.22 and actually create a detailed record of its executive-session discussions.” The law requires only that a public body keep executive-session minutes that reflect the general subject matter of discussions in executive sessions—i.e., the statutorily permitted reason for the executive session. The court noted that, had the General Assembly been concerned about the public’s access to evidence in executive session challenges, it could explicitly have placed the burden of production of the public body in RC 121.22.
The court also upheld the “presumption of regularity” – a proposition that, in the absence of evidence to the contrary, courts will presume that a public body going into executive session for a permitted reason under the law has acted lawfully during the executive session. The court stated that placing the burden of production on the public body in these circumstances would create a presumption of irregularity which is contrary to Ohio law. In the absence of any evidence of wrongdoing, placing the burden of production on the public body would require a court to presume that the body acted contrary to law and considered topics not stated in its motion to enter executive session.
Finally, the court clarified that a public body must be able, in its motion to enter executive session for purposes set forth in RC 121.22(G)(1), to include all the topics it might reasonably discuss during the session. The court stated that it has never “set forth a rule that public bodies may not include in their motions to enter executive session all the topics they reasonably might discuss” and that a public body is not required to “discuss every single topic that it includes in its motion to enter executive session.” Rather, a public body may not discuss any additional topics that are not included in its motion to hold the executive session. If a public body, in its motion to enter executive session, includes the discipline, dismissal, demotion or compensation of a public employee, but ultimately discusses only some of these items, it has not violated the OMA.
The court ultimately reversed the appeals court’s judgment affirming summary judgment for Hicks and remanded the case to the court of common pleas for further proceedings consistent with its opinion.
As always, OSBA’s division of legal services is following the development of important case law in areas that affect Ohio’s public schools. We will monitor this case on remand and share the results, and other cases of note on OMA, as they become available. Board members and employees who have questions about this opinion or other general questions about OMA are encouraged to contact the division at (855) 672-2529 or (855) OSBA-LAW. For questions about how the decision affects the board in specific matters, boards are encouraged to contact their board’s legal counsel.