Cincinnati Solicitor Responds To Open Meeting Concerns

Mar 9, 2017

The Cincinnati city solicitor has issued a legal opinion reminding council members to be careful not to violate the Ohio Open Meetings Act.

The memo from Paula Boggs Muething addresses three recent meetings that caused some concern about notifying citizens of public meeting.

The first was a group of four City Council members gathering to conduct a performance review for City Manager Harry Black. Council Member Yvette Simpson said she and three other members (Seelbach, Murray and Flynn) were meeting to review written comments from eight council members, and condense them to a document to be presented the manager. That performance review could determine whether Black receives a pay raise.

The solicitor found the "evaluation panel" is a council subcommittee, and falls under the definition of a "public body" under the Open Meetings Act. Her opinion cites a court decision from the First District Court of Appeals in 2001 in the case of Cincinnati Enquirer vs. City of Cincinnati.

The court held that a body that makes decisions in formulating its advice, even if it lacks final decision-making power, is a decision-making body for Open Meetings Act purposes. Accordingly, meetings of the City Manager evaluation panel must be conducted in compliance with the requirements of the Open Meetings Act, including providing public notice of all meetings, both regular and special, and recording minutes that are made available to the Clerk of Council.

Council Member Simpson indicated last week that future meetings will be noticed and open to the public if that is required.

The second issue addressed a meeting about the Cincinnati Bell Connector held on February 6 to discuss streetcar operation issues like track blockages, parking fines for such blockages, and the speed of the streetcar through parts of the city. It was held at a Cincinnati Bell facility.

The meeting included four City Council members who sit on the Major Transportation Committee. The group has seven members, so four members would make a quorum.

Others in the February meeting included city employees, Southwest Ohio Regional Transit Authority employees, Cincinnati Bell representatives and private citizens.

Muething found in her opinion that this meeting should have been advertised and open to the public.

Although the meeting was held at a non-city facility and was hosted by a non-city party, these facts are immaterial to the analysis under the Act.

The streetcar group held another meeting on March 6 at City Hall. The clerk's office issued a notice it was happening, and it was open to the public and recorded by CitiCable for later broadcast on the city's cable channel.

On February 27, the Mt. Auburn Community Council held a meeting at its facility to talk about some residents' concerns with city code enforcement in the area.

Five council members attended and participated in the session. Several city officials also were present to make presentations.

Council Member Simpson's office had sent e-mails to the media advertising the Mt. Auburn meeting. Those were sent on February 24 and again February 27, the day of the meeting.

In this case, Muething found it would have not triggered issues with the Open Meetings Act.

Despite the fact that a majority of Council was present and one Council office appears to have played an organizational role, attendance by members of Council appears to have been solely in a fact gathering or informational role. This role is consistent with the obligations of elected officials to obtain feedback from their constituents on civic issues of importance to those constituents. Under Ohio law, such fact gathering or informational meetings are permitted to be held by the elected officials of a public body, and even if a quorum of the public body is present, such a meeting is not required to be held in accordance with Open Meetings Act requirements.

The solicitor concluded her opinion by suggesting all elected officials should consult with the Solicitor's Office when city-related events or gatherings could implicate the Open Meetings Act. Muething said her office can review the circumstances and make recommendations for Open Meetings Act compliance.

In most cases, such council meetings or committee meetings are required to be advertised, or noticed, at least 24 hours before they are scheduled to happen. In addition, an agenda of what is to be discussed is to be made available for public review. For special meetings, generally only those items listed on the agenda can discussed.