Esrati files appeal to Ohio Supreme Court over legality of “Information Sessions”

Judge Richard Skelton said the School closing task force was a public body and subject to the Ohio Sunshine Laws- AKA Open Meetings Act covered in ORC 121.22

Then he and the 2nd district court of appeals claimed the task force, which had already violated the OMA multiple times, was perfectly legal to meet behind closed doors for a bus tour of schools that the district was considering closing. They threw out my case saying I failed to prove “deliberations” were taking place in a meeting that I wasn’t allowed into.

They call the closed door session an “Information Session”- something that’s not mentioned in the ORC- except when discussing solid waste facilities. Even the 250 page Sunshine law handbook says the following:

“More importantly, the Ohio Supreme Court has not ruled on whether “investigative and informational” gatherings are or are not “meetings.” Consequently, public bodies should seek guidance from their legal counsel about how such gatherings are viewed by the court of appeals in their district before convening this kind of private gathering as other than a regular or special meeting.”

Pg. 94, 2017, Sunshine Laws Manual.

Some have said the courts ruled against me- just to create a test case. The sad reality is the Ohio Supreme Court accepts about 6% of civil cases that it receives.

I filed my timely appeal on Monday, June 17, 2019.

We won’t know for a few months if it is accepted or not. Then the real fun begins, as I’d have to represent myself in front of the court.

Here’s the filing- it’s written in plain language- so even lawyers and judges should be able to understand it…

  1. EXPLANATION OF WHY THIS IS A CASE OF GREAT GENERAL INTEREST

Transparency in government will end if an “information session” is granted legitimacy by the actions of the courts in this case. Gone are all the protections of Ohio’s Open Meetings Act, alternatively known as part of the Ohio Sunshine Laws and defined by statute ORC 121.22

A state that allows public bodies to meet, at will, in private, to discuss the public’s business is opening the doors to corruption, pay-to-play politics and will ultimately destroy the public’s trust in government.

Even though the existing statute is clear on what government business can be conducted behind closed doors, The Second District Court of Appeals and the trial court have by their actions in this case created a new class of meeting, an “information session.” These courts have placed the burden of proof upon the general public if a meeting that they can’t observe broke their new “information session” rules- which amount to “did deliberations take place” behind closed doors.

There is no mention of what constitutes a “deliberation” nor is a “deliberation” something that can be proved by discussion, questions, or even a wink. US Supreme Court Justice Clarence Thomas sat through 10 years of hearings without asking a question, yet, no judge in the country would claim he wasn’t deliberating.

The OMA is different than any other law in that it comes with a 250-page handbook on how it is to be applied, and every elected official is required to take a class to learn it. There is no mention of an information session in the handbook nor in statute.

The handbook does contain this: “More importantly, the Ohio Supreme Court has not ruled on whether “investigative and informational” gatherings are or are not “meetings.” Consequently, public bodies should seek guidance from their legal counsel about how such gatherings are viewed by the court of appeals in their district before convening this kind of private gathering as other than a regular or special meeting.”

Pg. 94, 2017, Sunshine Laws Manual.

If the Supreme Court doesn’t take this appeal, there will be no more need for the handbook or the OMA, since any public body can meet, in private, without observation and call the meeting an “information session.” This case is a perfect example of what happens when presumed OMA exceptions are big enough to drive a bus through.

  1. STATEMENT OF THE CASE AND FACTS

This appeal is before this Court from 2nd District Court of Appeals, from a decision and entry of 2 May 2019. The court rejected the Appellant, David Esrati’s, application for reconsideration of their March 22, 2019 opinion in Esrati v. Dayton City Commission, 2nd Dist. Montgomery No. 28062.  2019-Ohio-1021. The Court limited itself to the validity of the 3.5 hour private bus tour a schools facilities task force conducted that excluded Mr. Esrati and his video camera on Tuesday, Feb 6, 2018. Both courts refused to review the submitted video evidence in their deliberations.

All other arguments of Mr. Esrati’s initial case were dismissed by the trial court and the appeals court, which pertained to proper notification, minutes, and threats to keep the meeting closed. The trial court was focused on the form of injunction required- namely a TRO vs an injunction by the trial court.

Considering this law comes with a handbook to help the layman enforce it- splitting hairs on the type of injunction required counters the spirit of both the law and the handbook. The video evidence clearly showed violations requiring an injunction to be issued.

The trial court made one correct ruling: On March 19, 2018 the trial court ruled that the task force was a public body subject to O.R.C. 121.22.

Yet even though the 2nd District Court of Appeals clearly found fault with the defense and cited obvious violations of the requirements for openness, the court twice refused (the appeal and a motion to reconsider) to overturn the July 11, 2018 decision and judgment entry granting the motion for summary judgment which dismissed the action. How there can’t be a finding against this task force when the appeals court cites plaintiff’s evidence that showed an obvious OMA violation in their decision:

{¶ 30} As a final matter, we note that Ex. 3 includes a discussion between Dr. Lolli and the DPS Director of Media and Public Relations in which the Media Director stated that sending information to every task member by phone (“i.e., conference calls”) would ensure that “there won’t be any public records of that, either.” To the extent this implies that the Open Meetings Act could be circumvented by this avenue, we note that the Supreme Court of Ohio made the following comments in White v. King, 147 Ohio St.3d 74, 2016-Ohio-2770, 60 N.E.3d 1234: Nothing in the plain language of R.C. 121.22(B)(2) expressly mandates that a “meeting” occur face to face., R.C. 121.22 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 e-mail, text, tweet, or other form of communication.

* * *

* * * Allowing public bodies to avoid the requirements of the Open Meetings Act by discussing public business via serial electronic communications subverts the purpose of the act.

(Emphasis sic.) Id. at ¶ 15 and 18.

This was clear evidence that the law was broken, and required the trial court to file an injunction:

From ORC 121.22

(I)

(1) 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.

The duty of the courts is to issue an injunction when proof of a violation is presented. No injunction was granted. Instead, the Appeals court still insisted that evidence they cited (see {¶ 30} above) and the video of the tour including multiple refusals of entry- without any mention of it being an “information session” are not enough to rule in the plaintiff’s favor,  and that this case boils down to the following:

{¶ 20} Consequently, the issue is whether the Task Force engaged in deliberations during the bus tour that would make any rule, resolution, or formal act of the Board resulting from the bus tour invalid under R.C. 121.22(H). As noted, the trial court denied the motion for preliminary injunction because Esrati failed to present evidence that deliberations occurred. The court applied the same reasoning in its summary judgment decision, noting that Esrati did not present any further evidence in opposing summary judgment.

The plaintiff is not required by ORC 121.22 to prove that deliberations occur in a meeting of a public body for it to meet the requirements of a public meeting. This meeting was pre-arranged, to conduct deliberations upon official business which must be done “only in open meetings unless the subject matter is specifically excepted by law.”

This task force was not conducting a meeting about something that was “specifically excepted by law.”

Plaintiff/appellant timely appealed the appeals court’s decision on June 17, 2019.

III. ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW

Proposition of Law No 1.

The Open Meetings Act is a special law, that shouldn’t require a law degree to enforce.

In my original filing:

  • Because the law can be difficult for common citizens to apply, the State of Ohio has provided a handbook in common language expressing the intent of the law and before they jump into legalistic lingo, quote the founders of our country who used clearer language: “The liberties of a people never were, nor ever will be, secure, when rulers may be concealed from them… [T}o cover with the veil of secrecy the common routines of business, is an abomination in the eyes of every intelligent man.” Patrick Henry
    ~see State of Ohio Sunshine Laws Manual http://www.ohioattorneygeneral.gov/Files/Publications-Files/Publications-for-Legal/Sunshine-Law-Publications/Sunshine-Laws-Manual.aspx

The OMA is constructed to protect the right of the public to have the same information as the public body in evaluating public decisions with clear exemptions.

The purposes of the Ohio Open Meetings Act include: (i) ensuring openness and accountability in government; (ii) affording citizens the maximum opportunity to observe the conducting of public business by public bodies; and (iii) affording the accountability of public officials.

It is clear in this case, that the task force met in a way as to make sure the public had no way to review the process involved in the closing of Valerie School and the move of the District HQ across the street to HQ 2.

Proposition of Law No 2.

The words information session, had they been meant to be an exception to the plain language, well documented rules of ORC 121.22, would appear in the ORC relating to governmental meetings. They do not, except in the ORC 3734.05 which governs the licensing requirements for a solid waste facility. The average citizen should have full access to the law, without having to be versed in court cases where exceptions were somehow granted to allow this kind of meeting.

This is why this filing is brief, and does not hide the definition of ORC 121.22 with citations to multiple court cases that the average citizen wouldn’t find upon examination of published law and the handbook.

Proposition of Law No 3.

“Can we assume the unobserved world functions the same as the observed world? – e.g., “does observation affect outcome?

It would seem that the entire purpose of ORC 121.22 and its specified legal exclusions is because legislators decided that the public’s business should be conducted in public. It made these rules and provided a handbook because the act of observation is a check and balance on the power we vest in elected officials in their duties.

To remove the rights of the public to observe, for any reason at all, should have a sound and unquestionable justification that provides some sort of supported logic. This is why ORC 121.22 clearly stipulates exclusions. There is no additional option for any exclusion or provision for an “information session.”

“the Open Meetings Act is intended to be read broadly in favor of openness.”
Pg 88 2017, Sunshine Laws Manual.

IV CONCLUSION

If this decision is allowed to stand and “information sessions” are now legitimate meetings that can be held behind closed doors, there is no reason to have any of the other rules about when and where a meeting can be held in private.

The real question for the Supreme Court is what is the difference between what something is, and how it appears? When a public body meets outside of the view of the public, the law is very clear- it is a violation. From round robins, to polling, to telephone calls, to text messaging among members of a public body, these have all been declared violations of ORC 121.22 How, a public body can meet to evaluate school buildings for closure with information presented behind closed doors can somehow be a valid excluded meeting fails every test stated on ORC 121.22 and creates a dangerous precedent. For public bodies to comply, these three words are critical “trust but verify” and without public observation, the verify is impossible.

This case presents questions of great general interest. Jurisdiction should be accepted over each proposition of law.

If you don’t remember the details of this case- this video sums it up pretty well:

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