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 and did not discuss improper topics during the sessions. Because the board could not recall what was discussed during the sessions, there was no evidence produced as to what was actually discussed during the executive sessions.
The Twelfth District only required the plaintiff to meet its initial simple burden of submitting evidence that the executive sessions were meetings from which the public was excluded. The court also said that the board was required to present evidence that it had discussed all the "laundry list" of topics mentioned in the motions to enter into the executive sessions. The court then found the trial court did not abuse its discretion when it found the board had violated the Open Meetings Act and awarded the plaintiff nearly $80,000 in attorney fees as damages. In upholding the award of attorney fees, the Twelfth District held that it was not reasonable for the board to believe that its conduct had complied with the Open Meetings Act because, in its opinion, Ohio Revised Code 121.22(G)(1) required the board to "be specific when describing the reasons for moving into executive session instead of perfunctorily covering all possibilities." 2021-Ohio-998 at para. 64.
In its decision, the Ohio Supreme Court begins with a reminder that the Ohio Meetings Act should be liberally construed when determining what must be discussed in open meetings and narrowly construed when determining what may be discussed in an executive session. However, the Ohio Meetings Act says nothing about who bears the burden of proving a violation of the Open Meetings Act. Hicks argued that the burden of proving that a public body entered into an executive session for a proper purpose should be on the public body. However, the Ohio Supreme Court looked to the U. S. Supreme Court decision in Schaffer v. Weast, 546 U.S. 49 wherein the U.S. Supreme Court has said that it would very rarely place the entire burden of persuasion on the defendant at the outset of a proceeding.
Most interesting, in reviewing the burden of production upon a public body, the Ohio Supreme Court acknowledged that a challenge under the Open Meetings Act is different than under the Ohio Public Records Act because the public body might have no record or other evidence of what was discussed in the executive session outside the motion to enter into executive session in the meeting minutes. To shift the burden of production to the public body would require a public body to create a detail of its executive session discussions. This requirement would contravene the Open Meetings Act which only requires that meeting minutes reflect the statutorily permitted reason for the executive session.
You might ask - what about the laundry list of reasons used for the executive session? On that issue, the Ohio Supreme Court stated on multiple occasions in its decision that there is no rule that the board must discuss every topic that is included in its motion to enter into executive session. Specifically, the court stated, "A public body must be able to introduce a motion that includes all the topics it might reasonably discuss during an executive session. There is no rule to the contrary in R.C. 121.22, and there is no reason for the court to impose a rule that is not contained in the statute." Para. 36.
To read the full case click here.
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