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.

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

thumbnail of Skelton decision 31982124

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.

Round 2: Esrati vs DPS and Dayton City Commission

Judge Skelton asked for both sides to file a memo arguing if ORC 121.22 trumped Rule 65, even though he made it clear that he believed it did to start the court arguments.

And he asked us to use a pen, not a shovel.

To me, the pen is the tool that changes history. Shovels are what you use to muck a stall. Lawyers love to shovel. I love to write.

So, my filing is 9 pages plus attachments. I strayed outside the lines of strictly interpreting the issue of ORC 121.22 vs Rule 65, by explaining all the actions of the task force amounting to repeated  and willful violations of the law. Since the defense tried to claim that a TRO as required by Rule 65 was moot, since they had already violated ORC 121.22, and that he believed that sticking to the law in the future would some how fix things- clearly had to be addressed (total bullshit, needing a bulldozer instead of a mere shovel).

Needless to say, the research was enlightening.

404 error of the county Clerk of courts site

The Montgomery County Clerk of Courts site doesn’t like my filing.

Unfortunately, the Courts website (the one with the 35 page instructions on use) gives a 404 error when trying to upload the the large document that the school task force was given during their illegal tour. I had to abbreviate it just to upload to the site. Acting in full transparency mode, I’m posting it here, now. I’m sure, this will give the advantage to the defense, who will now, re-write their memo, turning it in at the last minute- and wasting considerable tax payer dollars doing so.

That is the crux of the problem with ORC 121.22- the burden and risk, is all upon the plaintiff- who risks getting billed for court costs and attorneys fees if their motion is found to be frivolous. Public officials who break the law, on the other hand, suffer zero personal risk, having tax funded defense at their disposal.

It also turns out that removal from office has been a false threat, enforced almost never. Our “Sunshine Laws” are in practice, just blowing sunshine up our collective butt.

Or at least they have been in the past.

The actions of these elected officials and employees of the district have been so wrong, so wanton in their disregard for the law, that maybe, just maybe, this will be a case that makes a difference. Or not.

At this point, the judge will consider both filings, and then offer a conference call on how to proceed.

My call is that he issue the injunction, which allows me to begin the process of contacting the Open Government Unit to begin proceedings to remove Jeff Mims, Robert Walker, William Harris and Mohamed Al-Hamdani from office.

He should also order the task force disbanded, and all members ruled ineligible to discuss the issue of school closings because they participated in an illegal secret meeting. This means, Acting Superintendent Lolli, Associate Superintendent Burton and Treasurer Abraha would all have to sit this one out.

Mims would have to be replaced by election, the three school board members would be replaced by those chosen by current remaining members, John McManus, Sheila Taylor, Jocelyn Rhynard and Karen Wick Gagnet, from members of the community that ask to sit on the board.

The only thing left to decide in court, is how many times they broke the law, and how many times the $500 fine should be counted.

Here are the documents for you to read, which are also available on the County Clerk of Courts site.

thumbnail of Rule 65 or ORC 121 – v3

The Esrati filing on which law to use

thumbnail of A-1 Citizen Advocacy Center Explaination of Sunshine Laws SM

A guide on the sunshine laws in Ohio that is clearer than the AG’s version

thumbnail of A2 Violating government-access laws rarely results in punishment for the offenders | Reporters Committee for Freedom of the Press

Document From Media and the law explaining that Sunshine Laws are weak.

thumbnail of A-3 Re Public records request- tour docs

Public Records Request from David Esrati to the School Board for the documents used on the tour

thumbnail of A-4 Task Force Docs – Tour Day 2-6-18abreiviated

The abbreviated version of the task force document handed out on the bus

UPDATE

9pm Monday, 12 Feb 18 The city uploaded their response after 4pm. They had until midnight. It’s odd in that it focuses on the judges ability to shut down the task force, which wasn’t what he asked for, and some case law trying to grasp at straws that Rule 65 applies, without any specificity to the case.

UPDATE

9:15 am Tuesday, 13 Feb 18. The School Board attorney also filed a brief- more to the issue of Rule 65 and also arguing that the judge can’t disband a task force. Really? How can a task force that violates the sunshine law- by meeting in private, possibly contribute to any discussion the board will have about the issue of closing schools, and, how can any employee of the district, that helped coordinate these secret illegal meetings not put the board at risk of having any decision they make to close schools, instantly overturned? They can’t. And, the total page count of both their briefs equals mine. Yet, they miss the point of the special protections the sunshine laws are supposed to provide.

thumbnail of Brief Rule 65 and Disband.021218

The more competent response filed by the private attorney for the district. Still wrong.

thumbnail of Brief of defendants 31861677

The city filed for the school board. It’s short, and harmless

David vs Goliath: round 1, or what do you call four lawyers installing a light bulb?

The Ohio Sunshine Laws are laws that mean well, but are designed with so many gotcha factors that people have to feel really pissed before they jump through the hoops. Like the first one: Get a lawyer. Pay the lawyer. Then filing fee ($330.50), then show up in court. Watch the government agencies who broke the law, show up in court, unprepared, with 4 lawyers to tell the judge you are wrong, and this whole thing is just David being an idiot (while their meters are running full tilt.).

Then we have to argue about what laws apply, even though Judge Richard Skelton made that very clear right off the bat. His reading of my brief and the law in question, ORC 121.22 said to him that Rule 65- the procedural rule used for asking for a Temporary Restraining Order, said that since the Sunshine Law had remedies (what he’s supposed to do to punish the lawbreaker) there was no need to bring in Rule 65, which is a federal law. In other words, the specific rules of the State law apply because the the general rule (rule 65) is controlled by the specific one. Did I lose you? I hope not.

I was wondering why even with their expert on the Sunshine Laws they weren’t ready to discuss the merits of that part of my filing?

This wasn’t an actual trial, so I wasn’t allowed to introduce evidence. All I could do was to turn to my filing to ask for relief.

Skelton stated a few things that made a lot of sense to me (but apparently, Brian Wildermuth, attorney for the District, wants to pick a fight with a judge known for being feisty): one, that laws are generally in place to “do the right thing.” Two- that while unable to guide me, he’s working toward transparency, and understands that this law in particular is written in mostly plain terms- in order to make sure the people keep their elected officials in line.

Wildermuth tried to say that I’d been allowed to attend and video meetings and that they’d comply in the future, and that this one “bus trip” is over, and therefore there was no need for my case. Totally denying the fact that I was shut out of the bus trip- and that what happened in their closed rolling yellow conference room was a meeting held in secret, as was the tour of Valerie Elementary. They also claimed that they cut short the trip, after hearing from the judge that this may be a violation.

If you watched the videos from facebook live- or my edited video of the event, you’ll know that yours and mine idea of cutting off a bus tour would mean, stop doing what you are doing and return home. A go to jail, go directly to jail, do not pass go, do not collect $200 moment if there ever was one. The bus continued on from Valerie, to Meadowdale Elementary and Meadowdale HS and then to Wogamen middle school and then back to DPS.

Let’s also be clear, that the government bodies could send 4 lawyers on your tax dime to deal with my complaint, yet, none were prepared to answer the case.

Let’s also be clear, that the judge suggested to the lawyers yesterday to hold off on the tour, and that Dayton City Officials were told NOT to enter- hence my conversation with Jeff Mims outside Valerie on camera about my mom. Let’s also be clear, that Mohamed Al-Hamdani, the mastermind behind this task force, actually had the bus pull over between DPS HQ and Valerie so he could get off the bus. Some of the people knew better, but did it anyway.

My arguments were basic: That by participating in a single secret meeting, the committee has poisoned any decision that the schools may make on closing any buildings. School Board Members William Harris, Robert Walker and Mohamed Al-Hamdani would and should have to recuse themselves. Dr. Lolli, Burton, Treasurer Abraha, also have now poisoned themselves. Any closure could be challenged in court by the community saying deliberations were held in private- thereby, just like inadmissible criminal evidence, forcing whatever decision they make to be illegal.

The fact that Lolli keeps saying she has a right to do these things in public is an embarrassment. It’s really just time to do with her, what the board did with the woman who hired her- part ways. But, without the payoff. She can serve as a principal, or something until the end of the year, while we hire someone who can abide by the sunshine laws and not require a bunch of people picked illegally to advise them on what to do.

The sad thing about all this, is the lawyers want to continue with their charade of denial. This will be costly for the district. I look forward to depositions, and a trial, because, much like the Dr. Markay Winston EEOC investigation which ended up bringing the end to Rhonda Corr, I think I know the right questions to ask people under oath that will show that this district leadership, has acting illegally (I was chastised for calling it criminal, because there is a difference to lawyers- while the rest of us think that when you break the law, you are a criminal, they don’t think that way.)

Watch the video, read the briefs, examine how many times in the tour video that they said NO, YOU can’t come in. I believe everyone of those, times the number of people who should have known better equals $500 ea instance… but, we’ll see.

And remember while you’re on Youtube to subscribe to my channel. I need 1000 subscribers to monetize it. Thank you.

For the record, what do you call four lawyers installing a light bulb? More billable hours, and no one that actually knows how to turn on a light.