Bill Text: OH SB93 | 2013-2014 | 130th General Assembly | Introduced

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Bill Title: To require that further information be stated in motions to hold executive sessions under the Open Meetings Act, to expand the fees and expenses that may be recovered for violation of the Act, and to make other changes to the Act.

Spectrum: Partisan Bill (Republican 1-0)

Status: (Introduced - Dead) 2013-03-21 - To State Government Oversight & Reform [SB93 Detail]

Download: Ohio-2013-SB93-Introduced.html

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As Introduced

130th General Assembly Regular Session 2013-2014

S. B. No. 93

Senator Jones 

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A BILL

To amend section 121.22 of the Revised Code to

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require that further information be stated in

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motions to hold executive sessions under the Open

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Meetings Act, to expand the fees and expenses that

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may be recovered for violation of the Act, and to

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make other changes to the Act.

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BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:

Section 1.  That section 121.22 of the Revised Code be	7
amended to read as follows:	8

Sec. 121.22.  (A) This section shall be liberally construed	9
to require public officials to take official action and to conduct	10
all deliberations upon officialconsideration or discussion of	11
public business only in open meetings unless the subject matter is	12
specifically excepted by law.	13

(B) As used in this section:

14

(1) "Public body" means any of the following:

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(a) Any board, commission, committee, council, or similar	16
decision-making body of a state agency, institution, or authority,	17
and any legislative authority or board, commission, committee,	18
council, agency, authority, or similar decision-making body of any	19
county, township, municipal corporation, school district, or other	20
political subdivision or local public institution;	21

(b) Any committee or subcommittee of a body described in	22
division (B)(1)(a) of this section;	23

(c) A court of jurisdiction of a sanitary district organized	24
wholly for the purpose of providing a water supply for domestic,	25
municipal, and public use when meeting for the purpose of the	26
appointment, removal, or reappointment of a member of the board of	27
directors of such a district pursuant to section 6115.10 of the	28
Revised Code, if applicable, or for any other matter related to	29
such a district other than litigation involving the district. As	30
used in division (B)(1)(c) of this section, "court of	31
jurisdiction" has the same meaning as "court" in section 6115.01	32
of the Revised Code.	33

(2) "Meeting" means any prearrangedassemblage, congregation,	34
or other gathering of a majority of the members of a public body	35
for the consideration or discussion of the public business of the	36
public body by a majority of its members, including, without	37
limitation, for receiving or making reports, presentations,	38
recommendations, or comments or for receiving or giving advice	39
concerning the public business of the public body.	40

(3) "Regulated individual" means either of the following:

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(a) A student in a state or local public educational	42
institution;	43

(b) A person who is, voluntarily or involuntarily, an inmate,	44
patient, or resident of a state or local institution because of	45
criminal behavior, mental illness or retardation, disease,	46
disability, age, or other condition requiring custodial care.	47

(4) "Public office" has the same meaning as in section	48
149.011 of the Revised Code.	49

(C) All meetings of any public body are declared to be public	50
meetings open to the public at all times. A member of a public	51
body shall be present in person at a meeting open to the public to	52
be considered present or to vote at the meeting and for purposes	53
of determining whether a quorum is present at the meeting.	54

The minutes of a regular or special meeting of any public	55
body shall be promptly prepared, filed, and maintained and shall	56
be open to public inspection. The minutes need only reflect the	57
general subject matter of discussions inof an executive sessions	58
session authorized under division (G) or (J) of this section need	59
only reflect the general subject matter of matters considered or	60
discussed in the executive session, but the minutes shall include	61
the time that the public body convened and adjourned from the	62
executive session, shall identify by name all individuals who were	63
in attendance during the executive session except for the name of	64
the individual to be considered or discussed under division (G)(1)	65
of this section, and shall indicate the period of time each named	66
individual attended the executive session.	67

(D) This section does not apply to any of the following:

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(1) A grand jury;

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(2) An audit conference conducted by the auditor of state or	70
independent certified public accountants with officials of the	71
public office that is the subject of the audit;	72

(3) The adult parole authority when its hearings are	73
conducted at a correctional institution for the sole purpose of	74
interviewing inmates to determine parole or pardon;	75

(4) The organized crime investigations commission established	76
under section 177.01 of the Revised Code;	77

(5) Meetings of a child fatality review board established	78
under section 307.621 of the Revised Code and meetings conducted	79
pursuant to sections 5153.171 to 5153.173 of the Revised Code;	80

(6) The state medical board when determining whether to	81
suspend a certificate without a prior hearing pursuant to division	82
(G) of either section 4730.25 or 4731.22 of the Revised Code;	83

(7) The board of nursing when determining whether to suspend	84
a license or certificate without a prior hearing pursuant to	85
division (B) of section 4723.281 of the Revised Code;	86

(8) The state board of pharmacy when determining whether to	87
suspend a license without a prior hearing pursuant to division (D)	88
of section 4729.16 of the Revised Code;	89

(9) The state chiropractic board when determining whether to	90
suspend a license without a hearing pursuant to section 4734.37 of	91
the Revised Code;	92

(10) The executive committee of the emergency response	93
commission when determining whether to issue an enforcement order	94
or request that a civil action, civil penalty action, or criminal	95
action be brought to enforce Chapter 3750. of the Revised Code;	96

(11) The board of directors of the nonprofit corporation	97
formed under section 187.01 of the Revised Code or any committee	98
thereof, and the board of directors of any subsidiary of that	99
corporation or a committee thereof;	100

(12) An audit conference conducted by the audit staff of the	101
department of job and family services with officials of the public	102
office that is the subject of that audit under section 5101.37 of	103
the Revised Code.	104

(E) The controlling board, the industrial technology and	105
enterprise advisory council, the tax credit authority, or the	106
minority development financing advisory board, when meeting to	107
consider or discuss granting assistance pursuant to Chapter 122.	108
or 166. of the Revised Code, in order to protect the interest of	109
the applicant or the possible investment of public funds, by	110
unanimous vote of all board, council, or authority members	111
present, may close the meeting during consideration or discussion	112
of the following information confidentially received by the	113
authority, council, or board from the applicant:	114

(1) Marketing plans;

115

(2) Specific business strategy;

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(3) Production techniques and trade secrets;

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(4) Financial projections;

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(5) Personal financial statements of the applicant or members	119
of the applicant's immediate family, including, but not limited	120
to, tax records or other similar information not open to public	121
inspection.	122

The vote by the authority, council, or board to accept or	123
reject the application, as well as all proceedings of the	124
authority, council, or board not subject to this division, shall	125
be open to the public and governed by this section.	126

(F) Every public body, by rule, shall establish a reasonable	127
method whereby any person may determine the time and place of all	128
regularly scheduled meetings and the time, place, and purpose of	129
all special meetings. A public body shall not hold a special	130
meeting unless it gives at least twenty-four hours' advance notice	131
to the news media that have requested notification, except in the	132
event of an emergency requiring immediate official action. In the	133
event of an emergency, the member or members calling the meeting	134
shall notify the news media that have requested notification	135
immediately of the time, place, and purpose of the meeting.	136

The rule shall provide that any person, upon request and	137
payment of a reasonable fee, may obtain reasonable advance	138
notification of all meetings at which any specific type of public	139
business is to be considered or discussed. Provisions for advance	140
notification may include, but are not limited to, mailing the	141
agenda of meetings to all subscribers on a mailing list or mailing	142
notices in self-addressed, stamped envelopes provided by the	143
person.	144

(G) Except as provided in division (J) of this section, the	145
members of a public body may hold an executive session only after	146
a majority of a quorum of the public body determines, by a roll	147
call vote, to hold an executive session and only at a regular or	148
special meeting for the sole purpose of the consideration or	149
discussion of any of the following matters:	150

(1) To consider theThe appointment, employment, dismissal,	151
discipline, promotion, demotion, or compensation of a public	152
employee or official, or the investigation of charges or	153
complaints against a public employee, official, licensee, or	154
regulated individual, unless the public employee, official,	155
licensee, or regulated individual requests a public hearing.	156
Except as otherwise provided by law, no public body shall hold an	157
executive session for the discipline of an elected official for	158
conduct related to the performance of the elected official's	159
official duties or for the elected official's removal from office.	160
If a public body holds an executive session pursuant to division	161
(G)(1) of this section, theThe motion and vote to hold thatan	162
executive session for these purposes shall state which one or more	163
of the approved purposes listed in division (G)(1) of this section	164
are the purposes for which the executive session is to be held,	165
but need not include the name of anythe person to be considered	166
ator discussed during the meetingexecutive session.	167

(2) To consider the(a) The purchase of property for public	168
purposes, or for the sale of property at competitive bidding, if	169
premature disclosure of information would give an unfair	170
competitive or bargaining advantage to a person whose personal,	171
private interest is adverse to the general public interest. NoThe	172
motion and vote to hold an executive session for these purposes	173
shall specifically state whether the executive session is to	174
consider or discuss the purchase of property for public purposes	175
or the sale of property at competitive bidding.	176

(b) No member of a public body shall use division (G)(2) of	177
this section as a subterfuge for providing covert information to	178
prospective buyers or sellers. A purchase or sale of public	179
property is void if the seller or buyer of the public property has	180
received covert information from a member of a public body that	181
has not been disclosed to the general public in sufficient time	182
for other prospective buyers and sellers to prepare and submit	183
offers.	184

(c) If the minutes of the public body show that all meetings	185
of the public body and deliberationsconsideration by or	186
discussions of the public body have been conducted in compliance	187
with this section, any instrument executed by the public body	188
purporting to convey, lease, or otherwise dispose of any right,	189
title, or interest in any public property shall be conclusively	190
presumed to have been executed in compliance with this section	191
insofar as title or other interest of any bona fide purchasers,	192
lessees, or transferees of the property is concerned.	193

(3) Conferences with an attorney for the public body	194
concerning disputes involving the public body that are the subject	195
of pending or imminent court action;. The motion and vote to hold	196
an executive session for this purpose shall identify by name the	197
public body's attorney and shall state whether the executive	198
session concerns a pending court action or an imminent court	199
action. If the executive session concerns a pending court action,	200
the motion and vote to hold the executive session shall identify	201
by case number the pending court action and its subject matter,	202
but if the executive session concerns an imminent court action,	203
the motion and vote to hold the executive session shall describe	204
the imminent court action only if disclosure of it would not, in	205
the opinion of the public body, create or cause a material	206
disadvantage to the public body relative to the imminent court	207
action. If, for this reason, the motion and vote to hold an	208
executive session does not describe the imminent court action, the	209
public body, not later than six months after holding the executive	210
session, shall disclose at a meeting of the public body the	211
imminent court action that was the subject of the executive	212
session. At that meeting, the public body shall amend the minutes	213
of the prior meeting during which the public body held the	214
executive session, so that the minutes describe the imminent court	215
action that was the subject of the executive session.	216

(4) Preparing for, conducting, or reviewing negotiations or	217
bargaining sessions with public employees concerning their	218
compensation or other terms and conditions of their employment;	219

(5) Matters required to be kept confidential by federal or	220
state law or regulations or state statutes;. The motion and vote	221
to hold an executive session because of these requirements shall	222
identify the federal or state law or regulation that requires that	223
the matters being considered or discussed by the public body in	224
the executive session be kept confidential.	225

(6) Details relative to the security arrangements and	226
emergency response protocols for a public body or a public office,	227
if disclosure of the matters considered or discussed could	228
reasonably be expected to jeopardize the security of the public	229
body or public office;	230

(7) In the case of a county hospital operated pursuant to	231
Chapter 339. of the Revised Code, a joint township hospital	232
operated pursuant to Chapter 513. of the Revised Code, or a	233
municipal hospital operated pursuant to Chapter 749. of the	234
Revised Code, to consider trade secrets, as defined in section	235
1333.61 of the Revised Code.	236

If a public body holds an executive session to consider or	237
discuss any of the matters listed in divisionsdivision (G)(2) to	238
(4), (6), or (7) of this section, the motion and vote to hold that	239
executive session shall state which one or more of the approved	240
matters listed in those divisions are to be considered or	241
discussed at the executive session.	242

A public body specified in division (B)(1)(c) of this section	243
shall not hold an executive session when meeting for the purposes	244
specified in that division.	245

(H) A resolution, rule, or formal action of any kind is	246
invalid unless adopted in an open meeting of the public body. A	247
resolution, rule, or formal action adopted in an open meeting that	248
results from deliberationsconsideration or discussion in a	249
meeting not open to the public is invalid unless the deliberations	250
wereconsideration or discussion was for a purpose specifically	251
authorized in division (G) or (J) of this section and conducted at	252
an executive session held in compliance with this section. A	253
resolution, rule, or formal action adopted in an open meeting is	254
invalid if the public body that adopted the resolution, rule, or	255
formal action violated division (F) of this section.	256

(I)(1) Any person may bring an action to enforce this section	257
for the failure of a public body or its members to comply with	258
this section. An action under division (I)(1) of this section	259
shall be brought within two years after the date of the alleged	260
violation or threatened violation. Upon proof of a violation or	261
threatened violation of this section in an action brought by any	262
person, the court of common pleas shall issue an injunction to	263
compel the members of the public body to comply with its	264
provisions.	265

(2)(a) If the court of common pleas issues an injunction	266
pursuant to division (I)(1) of this section, the court shall order	267
the public body that it enjoins to pay a civil forfeiture of five	268
hundred dollars to the party that sought the injunction and shall	269
award to that party all court costs, and, subject to reduction as	270
described in division (I)(2) of this section,shall award to the	271
party's attorney reasonable attorney's fees and all litigation	272
expenses incurred, including fees and expenses incurred to produce	273
proof of the reasonableness and amount of the attorney's fees and	274
to otherwise litigate entitlement to the fees and expenses. Court	275
costs, attorney's fees, and litigation expenses awarded under this	276
section shall be construed as remedial and not punitive. The	277
court, in its discretion, may reduce an award of attorney's fees	278
to the attorney of the party that sought the injunction or not	279
award attorney's fees to the attorney of that party if the court	280
determines both of the following:	281

(i) That, based on the ordinary application of statutory law	282
and case law as it existed at the time of violation or threatened	283
violation that was the basis of the injunction, a well-informed	284
public body reasonably would believe that the public body was not	285
violating or threatening to violate this section;	286

(ii) That a well-informed public body reasonably would	287
believe that the conduct or threatened conduct that was the basis	288
of the injunction would serve the public policy that underlies the	289
authority that is asserted as permitting that conduct or	290
threatened conduct.	291

(b) If the court of common pleas does not issue an injunction	292
pursuant to division (I)(1) of this section and the court	293
determines at that time that the bringing of the action was	294
frivolous conduct, as defined in division (A) of section 2323.51	295
of the Revised Code, the court shall award to the public body all	296
court costs and reasonable attorney's fees, as determined by the	297
court.	298

(3) Irreparable harm and prejudice to the party that sought	299
the injunction shall be conclusively and irrebuttably presumed	300
upon proof of a violation or threatened violation of this section	301
and the party need not demonstrate the presence of any public	302
benefit.	303

(4) A member of a public body who knowingly violates an	304
injunction issued pursuant to division (I)(1) of this section may	305
be removed from office by an action brought in the court of common	306
pleas for that purpose by the prosecuting attorney or the attorney	307
general.	308

(J)(1) Pursuant to division (C) of section 5901.09 of the	309
Revised Code, a veterans service commission shall hold an	310
executive session for one or more of the following purposes unless	311
an applicant requests a public hearing:	312

(a) Interviewing an applicant for financial assistance under	313
sections 5901.01 to 5901.15 of the Revised Code;	314

(b) DiscussingConsidering or discussing applications,	315
statements, and other documents described in division (B) of	316
section 5901.09 of the Revised Code;	317

(c) Reviewing matters relating to an applicant's request for	318
financial assistance under sections 5901.01 to 5901.15 of the	319
Revised Code.	320

(2) A veterans service commission shall not exclude an	321
applicant for, recipient of, or former recipient of financial	322
assistance under sections 5901.01 to 5901.15 of the Revised Code,	323
and shall not exclude representatives selected by the applicant,	324
recipient, or former recipient, from a meeting that the commission	325
conducts as an executive session that pertains to the applicant's,	326
recipient's, or former recipient's application for financial	327
assistance.	328

(3) A veterans service commission shall vote on the grant or	329
denial of financial assistance under sections 5901.01 to 5901.15	330
of the Revised Code only in an open meeting of the commission. The	331
minutes of the meeting shall indicate the name, address, and	332
occupation of the applicant, whether the assistance was granted or	333
denied, the amount of the assistance if assistance is granted, and	334
the votes for and against the granting of assistance.	335

Section 2.  That existing section 121.22 of the Revised Code	336
is hereby repealed.	337