Academic Senate Youngstown State University Youngstown, Ohio  44555

A “decision-making” body is one that proposes and passes motions, as is the case with the Senate and its committees. “Advisory” bodies usually contain the word “advisory” in the title and do not propose and pass motions. The intent of the law is clear here, which is why Section 121.22 (B) (1b) of the Ohio Revised Code exists—to specify committees and subcommittees.

While no Ohio precedent exists on point here, there are other state Supreme Court decisions that have exempted bodies such as “Dean’s Advisory Councils” because they do not propose or pass motions.

3. There does exist case law in the state of Ohio on point—beyond point—which has “liberally construed” Ohio’s Open Meetings Laws.  Section 121.22 (A) of the Ohio Revised Code states: “This section shall be liberally construed to require public officials to take official action and to conduct all deliberations upon official business only in open meetings unless the subject matter is specifically excepted by law.”

A. The business of the General Education and Curriculum Committees is not exempted by law. According to Section 121.22 (G) of the Ohio Revised Code, those exemptions are:

1. “To consider the appointment, employment, dismissal, discipline, promotion, demotion, or compensation of a public employee or official …”

2. “To consider the purchase of property for public purposes, or for the sale of property at competitive bidding …”

3. “Conferences with an attorney for the public body concerning disputes involving the public body that are the subject of pending or imminent court action” (the attorney-client privilege).

4. “Preparing for, conducting, or reviewing negotiations or bargaining sessions with public employees …” (contract negotiations).

5. “Matters required to be kept confidential by federal law or regulations or state statutes.”

6. “Specialized details of security arrangements if disclosure of the matters discussed might reveal information that could be used for the purpose of committing, or avoiding prosecution for, a violation of the law.”

 7. “In the case of a county hospital … trade secrets.”

B. The case law on point is State ex rel. Toledo Blade Co. v. Univ. of Toledo Found.  (1992), 65 Ohio St.3d 258, 602 N.E.2d 1159, in which the Supreme Court of the State of Ohio held that The University of Toledo Foundation—a private, nonprofit organization—is a public body for the purposes of Open Records and Meetings Laws. The Court believed that the work of the Foundation affected the university’s public affairs, and, therefore, it was a public body for the purposes of the Ohio Revised Code.

There is no doubt that the work of the Academic Senate and its committees and subcommittees affects the university’s public affairs. Deciding which courses do and do not meet General Education requirements determines how the university’s public resources (state of Ohio taxpayer money, etc.) will and will not be used.

4. The Senate and its committees and subcommittees need not make any changes to how they conduct business to fully comply with the Open Meetings Laws. For example, Section 121.22 (F) of the Ohio Revised Code, states: “Every public body, by rule, shall establish a reasonable method whereby any person may determine the time and place of all regularly scheduled meetings and the time, place, and purpose of all special meetings … The rule shall provide that any person, upon request and payment of a reasonable fee, may obtain reasonable advance notification of all meetings at which any specific type of public business is to be discussed …”

Web site announcements of meetings are sufficient for these purposes. (In the unlikely event that an interested individual without access to the Web site requests advance agendas, that individual must pay any costs associated with receiving notification). What the law says is that this information must be available by a “reasonable method.” It places the responsibility on the interested party to contact the Senate, or its committees and subcommittees, to receive advance notification. A call to the chair of any committee or subcommittee to determine the next meeting is a “reasonable method.” The Senate could simply post contact info for chairs on its Web site.

5. Closing the “deliberations” portions of these meetings is simply too risky for the Senate to do. Given the record of Ohio’s Court’s “liberally constru(ing)” these laws, it is quite likely that a legal challenge would fall on the side of openness. In fact, it is the deliberative process—which is what is being proposed to close—that this law is explicit about in addition to official action. Again:

“This section shall be liberally construed to require public officials to take official action and to conduct all deliberations upon official business only in open meetings unless the subject matter is specifically excepted by law.”

The outcome would be that all business that was the result of closed deliberations would be declared null and void. Section 121.22 (H) of the Ohio Revised Code, states

“A resolution, rule, or formal action of any kind is invalid unless adopted in an open meeting of the public body. A resolution, rule, or formal action adopted in an open meeting that results from deliberations in a meeting not open to the public is invalid unless the deliberations were for a purpose specifically (exempted) …”

6. The simple existence of the proposal to close portions of these meetings is already enough to trigger a lawsuit: The Ohio Legislature saw the simple “threat” to close a meeting—the mere existence of this proposal—as enough to trigger the statute. The Senate is already in a vulnerable legal position. Section 121.22 (I) (1) of the Ohio Revised Code states:

“Any person may bring an action to enforce this section. An action under division (I)(1) of this section shall be brought within two years after the date of the alleged violation or threatened violation. Upon proof of a violation or threatened violation of this section in an action brought by any person, the court of common pleas shall issue an injunction to compel the members of the public body to comply with its provisions.”

This makes good legal sense. Requiring that a violation actually occur before the statute is triggered could result in a lot of public business being declared null and void.

The Senate needs to remove the motion to close portions of the committee meetings off the table immediately to avoid a lawsuit being filed against it. As a body in an institution of higher learning, the Senate should set an example of openness for its business and respect for the laws of the state of Ohio.

The concern that open meetings may result in the intimidation of members of the General Education and Curriculum committees is not in question. These are legitimate concerns. However, the business of these committees is no more sensitive than the business—and potential business—of other Senate committees. Such a proposal sets a dangerous precedent for the Senate.  

The State Legislature was not naïve in writing this law and understood that conducting business in public may result in various forms of political pressure. The Legislature established these laws with an understanding that such pressures are invariably the price we must pay for conducting business in the democratic and participatory environment of openness.