The Open Meetings Acts for dummies at Wright State (and elsewhere)

The new wright state logo not done by YorkBranding or Push Inc showing Wright State leadership under Dr. David Hopkins

If there are two primary jobs of a university board of trustees, it is to hire and evaluate the President of a University and to keep track of the money. It would seem the WSU board of trustees can’t figure out where the money went and who to blame or praise. Maybe it’s because this feckless bunch lead by Doug Fecher of WPCU don’t know what their job is, and no one at the State level seems to care.

When the university went from cash rich to the poor house, no one got blamed. The President didn’t get fired, the numbers guy, Mark M. Polatajko, Ph.D., CPA ended up at Kent State, and the money has never been accounted for.

So, when the board has a committee meeting, ostensibly to review and create the evaluation for the president, in private- they have to do it a certain way.

From a regular meeting, a majority of the board has to make a motion to go into executive session to specifically discuss personnel issues. No exceptions. A subcommittee can only meet in public.

Here’s the law:

(G) Except as provided in divisions (G)(8) and (J) of this section, the members of a public body may hold an executive session only after a majority of a quorum of the public body determines, by a roll call vote, to hold an executive session and only at a regular or special meeting for the sole purpose of the consideration of any of the following matters:

(1) To consider the appointment, employment, dismissal, discipline, promotion, demotion, or compensation of a public employee or official, or the investigation of charges or complaints against a public employee, official, licensee, or regulated individual, unless the public employee, official, licensee, or regulated individual requests a public hearing. Except as otherwise provided by law, no public body shall hold an executive session for the discipline of an elected official for conduct related to the performance of the elected official’s official duties or for the elected official’s removal from office. If a public body holds an executive session pursuant to division (G)(1) of this section, the motion and vote to hold that executive session shall state which one or more of the approved purposes listed in division (G)(1) of this section are the purposes for which the executive session is to be held, but need not include the name of any person to be considered at the meeting….

(4) Preparing for, conducting, or reviewing negotiations or bargaining sessions with public employees concerning their compensation or other terms and conditions of their employment;

Source: Lawriter – ORC – 121.22 Public meetings – exceptions.

The problem is, if the meeting wasn’t announced, and wasn’t specified to follow one of these two directives- the meeting is illegal.

… a release issued Wednesday from the university stated “Schrader would not accept” either for her work in the past year. Clarifying the issue later, WSU board chairman Doug Fecher, who said he helped write and review the release, said, “There was no vote taken and it wasn’t meant to imply that” the president turned down a bonus offer….

The executive committee of the the WSU board, which included Fecher, former board chairman Michael Bridges, Anuj Goyal and Grace Ramos, met behind closed doors with Schrader on Monday to discuss an evaluation of her first-year performance.

Schrader was not offered a merit raise or bonus because of the university’s financial troubles, Fecher said.

In June 2017, trustees slashed more than $30 million from Wright State’s fiscal year 2018 budget and another $10-million decline in revenue is expected over the coming year. Just last week, the university announced it would begin issuing layoff notices to around 26 employees.

“There was no change in compensation offered and she agreed there should be no (additional) compensation offered,” Fecher said.

Cox Media Group has requested public records about the evaluation and was told by the university there were no written documents from the meeting. Trustee Bruce Langos also said that he was not aware of a formally documented evaluation.

Fecher said the evaluation was more of a conversation. Fecher said he contacted trustees separately before the Monday meeting to get their opinion of Schrader’s performance and ideas for what she could improve upon.

Langos said he was “shocked” when he saw the release sent by the school that stated Schrader did not accept a raise or bonus, because he said it made it sound like the board offered her one.

Although the university may not be in a financial position to offer Schrader a raise, Langos said it’s something the entire board should have discussed and voted on publicly.

“I don’t think any laws were broken but I don’t think the rules or the bylaws (of the board) were followed because the bylaws require that things like this require (a vote). And we didn’t take a vote,” Langos said.

The executive committee cannot take action in executive sessions, meaning any action such as a vote for or against a raise for Schrader would need to be taken in a public session.

The Ohio Open Meetings Act states that members of a public body are required to “discuss and deliberate on official business only in open meetings.” How Wright State’s board handled Schrader’s evaluation falls into a “gray area” of the law, said Dan Tierney, spokesman for the Ohio Attorney General’s Office.

“Our advice is always consult your legal counsel in such a gray area and then decide whether they would be comfortable defending that or not,” Tierney said.

Source: WSU president not given raise due to budget – Dayton Daily News

Fecher isn’t allowed to have private conversations with three others in private to discuss university business, and he is not allowed to round robin request information. Him contacting other board members to discuss their opinion is a violation of the OMA. Pure and simple.

The proper procedure is to create a subcommittee, that works on the evaluation, a written document, that is then reviewed by the entire board in a properly called executive session, and a final document is released to the personnel file of the President. If an “executive session” discussion is to be held in private with the president, it must be stated what the issue is in advance, from an open session.

Unbelievably, I’m forced to cite the Dayton School Board lawyers site for info on case law of actual evaluations- which may be an interpretation that evaluations may have to be done in public:

The most striking part of the court’s decision, however, is its conclusion that performance evaluations do not fit within this executive session exception.  The court said, “construing the OMA liberally in favor of open meetings and construing the executive-session exceptions narrowly, the trial court correctly found no exception for employee ‘evaluation.’”  The court agreed with this interpretation.  This ruling appears to be based upon the fact that the word “evaluation” is not specifically listed in R.C. § 121.22(G)(1).  The court continued:  In any event, we do not necessarily disagree with the [  ] statement that the OMA permits discussion of an employee’s ‘job performance’ in executive session.  Prior to entering into executive session, however the public bod must specify the context in which ‘job performance’ will be considered by identifying one of the statutory purposes set forth in R.C. 121.22(G).

Notably, the court offered no opinion or explanation on how performance evaluations of administrators and executives by a governing board do not fit within the continued “employment” of employees under Section (G)(1).  Is it their opinion that the “employment” exception to open meetings is only for the initial hiring?  We do not know.  The court offered no explanation on how and when a governing board should discuss routine evaluations of employees (especially direct reports, such as the Executive Director), which often do not relate to a specific “dismissal, discipline, promotion, demotion, or compensation” decision.

The court’s ruling may now require governmental entities that conduct routine evaluations of Directors, Superintendents, Treasurers, City Managers, etc. to either find one of these specific pegs of (G)(1) on which to hang personnel evaluations or, otherwise, hold the discussion in public.  Unlike Ms. Maddox, it is likely that most public administrators do not want their performance evaluations to be aired in a public session.[1]  And, the promise of a public discourse on one’s job performance by one’s own employer could make the difficult job of finding qualified people to fill these high-level positions all that more difficult.

Source: Public Records Decision: Consideration of Performance Evaluations | Subashi & Wildermuth

Part of the reason University Presidents are paid the big bucks is that they agree to take public criticism, hold responsibility and lead by example. There is really no legitimate reason to conduct annual reviews in private, or to be embarrassed by the discussion- it’s the future of the university- a public institution.

The Open Meetings Act is the only law I know of that comes with a 250 page public handbook to explain the importance of conducting the public’s business in public.

One of the quotes in the beginning of the handbook should make it pretty clear:

 “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

Every elected public official is required in the State of Ohio to take a three hour course in the Open Meetings Act/Sunshine Laws. I’m not sure if University Trustee’s are, but, this latest screw up suggests that they should be.

And, btw, ostensibly the penalty for violating the OMA is removal from office, although it’s never happened in the State of Ohio. Removing this board for a violation of the OMA would be a good start.

As to the whole faux pas of Schrader announcing that she declined a bonus that was never offered, and that Fecher helped write the press release, says there is way more wrong than right at Wright State.

Judge Skelton ignores the premise of the Open Meetings Act- dismisses case

Today Judge Richard Skelton dismissed the case Esrati vs DPS and Dayton City Commission on imaginary legal precedent.

“However, as indicated in the Court’s decision denying the motion for a preliminary injunction, there is no evidence that any deliberations occurred during the bus tour or any discussion of the prospective closing of school buildings.”

There is no provision in ORC 121.22 to qualify meetings based on if deliberations took place.  Common sense also says, you can’t prove what did or did not happen in a meeting if you can’t enter the room.

The video of the actual actions of the task force was in evidence, but never reviewed. The problem with the OMA is that our legislators in Columbus who wrote it, and then kept adding to it, would flunk the third grade reading guarantee. It’s a bunch of convoluted language with references to penalties that never get handed out- mostly because they really don’t want the public to use it to guarantee open honest government.

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Skelton’s decision. Click to download PDF

I’m not going to recount the whole argument- but, I originally filed to stop the bus tour, because that was pressing. I should have filed a simple OMA case- for all the violations- the attempts to throw me out, the actual keeping me out, the banning of audio and video recording equipment. Those are all punishable violations.

I will appeal the case, and hopefully, smarter judges will understand that laws that are only enforceable by lawyers – to protect the general public from bad behavior of people in power, aren’t really protecting anyone.

It’s too bad Skelton never watched the video evidence that the School board lawyer denied the existence of. Because if he had watched it- a 3rd grader would have seen that there was a violation.

Here’s his decision for summary judgement for the defense.

He should be ashamed.

Judges rule, Superintendents lie on the stand. Chaos as usual for DPS

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Judge Skelton’s decision, click to download full pdf

Judge Richard Skelton issued his ruling around 1:30 today. I was on an airplane headed back to Cincinnati from a quick trip to Tampa.

I went live on Facebook from  the airport, and then spent the trip back to Dayton talking the case over with friends who know mire than me, and calling the Ohio Attorney General’s Open Government Unit.

The decision was a split. I won on the major issue of if the task force was a public body and had to comply with the Open Meetings Act. That was a major hurdle- after the amount of BS the defense threw at the Judge claiming it wasn’t.

However, the judge refused to offer a temporary injunction banning the board from acting on the school closings because he said I failed to prove that the bus tour engaged in deliberations.

First, how could I tell the judge what happened in a meeting I wasn’t allowed to attend?

And, second, since the issue wasn’t subject to the privilege of executive session, the meeting was illegal.

But, Lolli said on the stand, they just observed and got briefed. The Judge created some kind of third kind of meeting- that isn’t defined by law- of an “information gathering session” which he thinks is exempt from public scrutiny. Here he makes an error. The contents of a meeting that isn’t open- and isn’t covered by executive session rules- is illegal. Period. (if any of you want to transcribe her lies, and put the time code of what she says and put it in comments- I’d be very appreciative).

You can watch the video of the court proceedings and hear Lolli use the “noise of the bus” as an excuse to say no discussions took place. Only problem is, the newspaper reporter, Jeremy Kelley of the Dayton Daily News wrote an article that day that said discussion did take place:

When the bus arrived, acting DPS superintendent Elizabeth Lolli said any members of the group who were tied to Dayton city government should not take part in the tour. City Commissioner Jeff Mims said that was because of “legal issues we’re dealing with.”

The remaining members of the task force briefly toured Valerie Elementary’s kitchen, gym/cafeteria, mechanical rooms and one classroom that was not in use. At 52 years old, Valerie is one of the few schools that pre-dates DPS’ building boom of last decade.

Lolli and associate superintendent Sheila Burton gave task force members detailed data on where the students attending each DPS school live, to show population concentrations, and how many students are traveling across the city each day.

As the task force headed back to the bus, Lolli told the group that legal counsel for the school district had advised the task force to stop the remaining school tours.

The group’s bus then drove to the two remaining schools, Meadowdale and Wogaman, stopping in each parking lot for a few minutes to hear information about enrollment numbers and each school’s physical condition. At each stop, one or two task force

members asked questions seeking clarity on the data. But the task force members did not leave the bus, and eventually returned to DPS headquarters.

Source: Dayton schools: Task force halts planned tours after challenge

As far as did they violate the law- it’s obvious they did. Why the judge refuses to stop them from adopting resolutions based on illegal meetings is beyond me.

The board is also trying to hastily hire Libby Lolli tomorrow night at 5pm. I highly recommend all of you come out and suggest that they haven’t done their due diligence or provided the public enough time to review the contract or the terms. Hiring a superintendent in the midst of turmoil is exactly how the last bad decision to hire a superintendent got made.