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.

The dirty on the District: DPS still can’t get it right

Apparently, without board approval, the board or Superintendent has hired Burges and Burges out of Cleveland- to do a survey of the perception of the district. This expenditure was NEVER listed for approval on any board agenda.

The survey started today. They are asking for people to respond to a 15-20 minute phone survey.

As if that wasn’t enough hocus pocus for one week- after already screwing with Valerie Elementary School- one of the few schools with a really strong parental involvement- this came through NextDoor.com

Ruskin Families: Some of you may be unaware but the Superintendent and Board are trying to terminate Ms Dearwester as Ruskin’s Principal. We are asking everyone to show their support by attending the Tuesday April 17 DPS Board meeting at 5. If you would like to speak you have to sign up by 4:45. People are wearing orange and black to show support. Please come and show your support for Our Principal!! Thank You

Ruskin is another school that has strong parental involvement. The only two left to screw with are Rivers Edge and Horace Mann. I’m sure those are up next in the grand plan to destroy the district.

Note the comment about showing up early to register- they are now requiring people to sign up at least 5 minutes before the meeting- and stipulate if it’s an agenda item or not- and limiting the number of non-agenda item speakers.

I don’t see any mention of Dearwester on the agenda, but, they are going into executive session about someone.

Other items of note- they are increasing the amount of money they are allocating to SUBASHI & WILDERMUTH:

Increase $50,000 to provide legal services to the district for various legal matters on an as needed basis for the 2017-2018 school year. Originally approved on June 2017 board agenda Board Agenda: April 17, 2018 $ 175,000.00 PR028544
Brian Wildermuth is the attorney on my case and on the Dunbar Basketball case and the Craig Jones case.
Word is from OHSAA that if the board doesn’t agree to pay OHSAA legal bills for that exercise, and fire a few people, Dunbar and or DPS may not be playing in any high school sports sponsored by the state.
thumbnail of Settlement Agreement and Release — DNK Architects

Click to download PDF

The board is also getting $1.5M from a settlement with DNK architects for a quit claim on the failures of both Wogamen and Louise Troy buildings. This is based on a contract from 2002.

Maybe Rev Harris will actually get the first vote correct on the acceptance of a resignation tomorrow. He’s failed every single one since he’s taken his seat.

Dumb, dumber and Dayton Public Schools

Last week Dayton Public Schools launched their enrollment campaign- done by the Ohlmann Group, the highest bidder. We mentioned it: If this is the best DPS can do.

thumbnail of Ohlmand Group Invoice #1

Radio invoice

thumbnail of Ohlmand Group Invoice #2

Outdoor invoice

They spent $20k in media, but were supplied invoices from The Ohlmann Group- not the invoices from the media outlets. Considering their contract says they are only going to mark their invoices up 10% – DPS has no clue if they were paying 10% over net or gross- because, they don’t have anyone there who knows anything about buying media. The way radio and TV stations bill ad agencies as a middle man, there is the gross amount- and a 15% agency discount. It’s all horseshit these days – since the media outlets long ago hired huge sales teams- and even offer “free” production of ads. That’s why you see the “pan and scan” with a voice over ads- over and over for local businesses.

We asked for the DPS instructions to Ohlmann for this campaign and the invoice for the “creative” but those have not been released.

The real issue is that right after the campaign launched, DPS got hit with a protest over a 4th grader being put in handcuffs. DPS should have consulted their marketing/pr firm for an appropriate response, but, instead, stood mute as people asked questions. Instead of taking the campaign down- they continued with their “Great things are happening” while the public is hearing- we put kids in handcuffs. We’ve yet to see anyone from Ohlmann at a board meeting.

But, what we do see is a circus. At the last review session, where we asked at the beginning if they should be continuing with an ineligible board meeting, Board President Dr. Walker claimed they knew nothing of it (lie). Considering I’d informed responsible parties within the district, by continuing, they violated their own rules.

They discussed, and wasted the first 90 minutes of another one of their epic meetings – the handcuff situation, the “newcomers academy” or “international academy” and what to do with the historic Longfellow, without an iota of research, historical reference or input from their overpaid staff.

The handcuff issue was actually old news. This happened last fall. To have it come up now- just reeks of incompetent messaging management. The proper response is a simple one, instead, they did their best to imitate United Airlines.

On the international school- we’ve been there done that. First was the ESL school, Miami Chapel, and then, when that closed and was torn down, they put 900 kids over at Patterson Kennedy Elementary and it was like the united nations. Of course, institutional knowledge isn’t valued in DPS- most of the people who know this stuff have been shown the door, and the rest- well, they are ignored by the new superintendent and crew- who think they know it all and everyone who works there is expendable except them.

As to Longfellow. This conversation was as confused as could be. Why we need an entire building to house approximately 60 kids is confusing already. But, the boards lack of knowledge about historic structures, real estate development, real estate disposal, and preservation is epic. However, they throw out all kinds of possible “solutions” without any research or supporting documentation. Why they waste the public’s time with their wild ass ideas is incompetence on display. This time, it was costing them at least several hundred dollars an hour, as their attorney from Subashi & Wildermuth, Tabitha Justice (that’s really her name- a lawyer named Justice) had arrived to be part of the following executive session and sat through the clown show while her meter was running. Not a single mention of how the board disposed of the old Hawthorne School, or any discussion of Historic Tax credits. Of course since they fired their property manager in the November putsch, they don’t even have someone to assign this to.

Then came Dr. Hazel Rountree with a “presentation” based on her visit to Cleveland. We were assuming Cleveland Ohio, but the first site she pulled up was Cleveland Tennessee. She was so excited about the ads their agency had done, and was going to show them to us, but the district filtering software wasn’t allowing it. She wanted to get the agency from Cleveland who did these ads to give the district a quote. Does that mean they’re ready to fire The Ohlmann Group already? That Hazel didn’t know how to give a presentation using PowerPoint doesn’t give us much hope for our kids. There is a microsite for the “Get 2 School- you can make it” campaign, but as to what video she wanted to show, we’ll never know. BTW- while Hazel was fumbling her website- Superintendent Rhonda Corr who should have know immediately that Hazel was on the wrong site- sat on her thumbs and let Hazel twist in the wind.

However, if you want to see the difference between a district doing competent marketing and DPS’s failure- all you have to do is go look at the Cleveland Public Schools YouTube page and see how many videos they are posting and compare it to DPS.

There are ways to run a school board meeting, and a good superintendent wouldn’t allow school board members to turn it into a carnival barkers midway. Corr has no concept of control or command- and often sits there like a dazed bystander. Someone should show her video of how Kurt Stanic ran a meeting- or better yet, bring Stanic back.

As a final insult, the agency DPS hired to help them, Ohlmann, is spending $125K on media to promote the pre-school promise for Learn to Earn. And, after reading my firms proposal on how to market DPS, Learn to Earn is copying our playbook according to the Dayton Daily news:

The Preschool Promise board approved a large marketing plan this week, including plans to hire a vendor to run a “field campaign” for grassroots outreach in Dayton. Board member and former Dayton mayor Clay Dixon said the marketing approach “is of the utmost importance.”

“That is actually how we’ll go out in the community, shoulder to shoulder, eyeball to eyeball, with the parents to make sure they are aware of the program, aware of what we do to get those kids into one of our quality programs,” Dixon said.

The board’s request for proposals for field campaign vendors is going out this week. Lightcap said the vendor will hire people who know Dayton’s neighborhoods and can build relationships with community partners, all in an effort to connect with the families who would participate in expanded preschool.

Source: Dayton Preschool Promise: Board plans marketing blitz for public

When the Issue 9 people finally release their post election finance report- how much do you want to bet that Ohlmann either worked on the campaign or donated to it? We may never know, since the Neighborhoods for Dayton’s Future- seems to be exempt from post election or annual filing.

In the meantime, we’ve got a school board with an ineligible member, fumbling around with issues, while their lawyer racks up billable hours for sitting on her thumbs, and a union that’s ready to strike. We’ll have more on how to remove the entire school board posted soon.