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MEMORANDUM Prepared For: Kenny Cahill Councilman, Village of Madison 126 W.

Main Street Madison, Ohio 44057

April 15, 2014

Introduction:

This memo concerns the executive session of the meeting of Madison Village Council March 17, 2014 and the special meeting of Madison Village Council held on March 24, 2014 at 7:30 PM.

Source Data Relied Upon:

Charter of the Village of Madison Section 4.8 Ohio Open Meetings Act Chapter One, Two, Three, and Four R.C. 121.22 (A) (F) (G) (H) (J) State ex rel. Kinsley v Berea BD of Educ., 64 Ohio App. 3d 659,664(8th Dist. 1990) Chudner v Cleveland City Sch. Dist., No. 68572 (8th Dist. 1995) The News-Herald Legal Notice 03/19/2014

Qualifying Conditions: Key Authorities: Discussion:

None N/A As a consequence of, and during, an executive session on March 17, 2014, decisions were made by the Mayor and with the concurrence of Council, in the presence of the Village Law Director, to proceed with scheduling a special meeting of Madison Village Council to hire Dwayne Bailey as Village Administrator as well as to cancel the regularly scheduled Council workshop. The formal actions to proceed with a special meeting and cancel the regularly scheduled Council workshop were made during an executive session, in violation of the State of Ohio Open Meeting laws. The special meeting of March 24, 2014 at 7:30 PM, through improper notice, failed to comply or substantially comply with the requirements of the State of Ohio Open Meeting laws. The Charter of the Village of Madison Section 4.8 Council Meetings states: all meetings of council and its committees shall comply with the State Open Meeting laws The Ohio Open Meetings Act, Overview of the Ohio Open Meetings Act states, no vote or other decision-making on the matter(s) discussed may take place during the executive session. Any action taken by a public body while that body is in violation of the

Analysis:

Open Meetings Act is invalid. Like the Public Records Act, the Open Meetings Act is intended to be read broadly in favor of openness. The Ohio Open Meetings Act, Chapter One: Public Body and Meeting Defined, C. Meeting 1. Definition, c. Discussing Public Business states With narrow exception, the Ohio Open Meetings Act requires members of a public body to discuss and deliberate on official business only in open meetings. Discussion is the exchange of words, comments, or ideas by the members of a public body. Deliberation means the act of weighing and examining reasons for and against a choice. One court has described deliberation as a thorough discussion of all factors involved, the careful weighing of positive and negative factors, and a cautious consideration of the ramifications of the proposal, while gradually arriving at a decision. In evaluating whether a particular gathering of public officials constituted a meeting, several courts of appeal have opined that the Open Meetings Act is intended to apply to situations where there has been actual formal action taken; to wit, formal deliberation concerning the public business. The Ohio Open Meetings Act, Chapter Four: Enforcement and Remedies states, Courts reviewing alleged violations will strictly construe the Open Meetings Act in favor of openness. In practice, this has included the courts looking beyond the express reason stated by a public body for an executive session to find an implied or circumstantial violation of the Act. R.C. 121.22 Public meetingsexception: (A) states: This section shall be liberally construed to require public officials to take official action and to conduct all deliberations upon official business only in open meetings unless the subject matter is specifically exempted by law.

The Ohio Open Meetings Act Chapter Three: Executive Session, B. 1 Certain Personnel Matters states: These discussions are based on the premise that the plain language of the act requires that all meetings of any public body are declared to be open to the public at all times, thus, any exceptions to openness are to be drawn narrowly.

R.C. 121.22 (H) states: A resolution, rule, or formal action of any kind is invalid unless adopted in an open meeting of the public body. A resolution, rule, or formal action adopted in an open meeting that results from deliberations in a meeting not open to the public is invalid unless the deliberations were for a purpose specifically authorized in divisions (G) or (J) of this section and conducted at an executive session held in compliance with this section. A resolution, rule, or formal action adopted in an open meeting is invalid if the public body that adopted the resolution, rule, or formal action violated division (F) of this section. State ex rel. Kinsley v Berea BD of Educ., 64 Ohio App. 3d 659,664(8th Dist. 1990) once a conclusion is reachedthe conclusion is to be made public, even though the deliberations leading to the conclusion were private. Chudner v Cleveland City Sch. Dist., No. 68572 (8th Dist. 1995) Inviting select individuals to attend an executive session is not a violation as long as no formal action of the public body will occur. The Ohio Open Meetings Act Chapter Two: Duties of a Public Body, B. Notice 1. Types of Meetings and Notice Requirements; b. Special Meetings states: A special meeting is any meeting other than a regular meeting. A public body must establish, by rule, a reasonable method that allows the public to determine the time, place, and purpose of a special meeting. Point 2: When a public body holds a special meeting to discuss particular issues, the statement of the meetings purpose must specifically indicate those issues, and the public body may only discuss those specified issues at that meetingDiscussing matters at a special meeting that were not disclosed in its notice of purpose, either in open session or executive session, is a violation of the Open Meetings Act. R.C. 121.22 Public meetingsexceptions: (F) states: Every public body, by rule, shall establish a reasonable method whereby any person may determine the time and place of all regularly scheduled meetings and the time, place and purpose of all special meetings. The Ohio Open Meetings Act Chapter Two: B. Notice 3. Notice by Publication states: notice must be consistent and actually reach the public to satisfy the statute.

The Ohio Open Meetings Act Chapter Four: B. Remedies 1 Invalidity, b. Improper Notice states: A formal action taken by a public body in a meeting for which it did not properly give notice is invalid.

Conclusion:

The formal actions taken by the public body during an executive session are invalid. Even if it is determined that the formal actions taken by the public body was inadvertently taken, the formal actions are still considered to be invalid. The actual formal actions taken during the executive session were the result of formal deliberation during the executive session relative to the intent to hire a Village Administrator, cancel the regularly scheduled Council workshop, and call a special meeting for the purpose of hiring a Village Administrator were not brought forward at the public portion of the meeting and the public body remained silent on the listed issues effectively denying accountability to the public as to how the decision to proceed with formal actions that would not have otherwise occurred except for the private deliberations of the executive session. This is contrasted with the formal action that was discussed during executive session relating to the purchase of Fire Station 1 that was brought forward during the public portion of the meeting, and the public body went to extraordinary effort to specifically identify the language of the formal action related to the purchase of Fire Station 1. Improper notice was given for the March 24, 2014 special council meeting at 7:30PM. The specification of purpose To discuss old and new legislative items is not sufficiently specific and does not comply with the statute. In light of the position that the Mayor and Council have taken that the office of Village Administrator is the single most important job in the Village of Madison, a reasonable person would conclude that a special meeting called for the purpose of hiring a Village Administrator should specify the same. Furthermore, the Village did not make a reasonable effort to insure that the language of the specific issues to be discussed at the special meeting would actually reach the public through the use of the Village website or Village Hall signage as is routinely the practice. The public body is giving the appearance that it did not intend to disclose the real purpose of the special meeting,

especially in light of the suspension effort on the part of some members of Council. Furthermore, the public body complicated the issue of proper notice by making no effort of giving notice that the regularly scheduled Council workshop of Monday March 24, 2014 at 7:00PM was cancelled. In fact, the regular public notice for the Council workshop ran as usual. The March 24, 2014 special council meeting at 7:30PM was invalid because of, but not limited to improper notice and the enabling formal action that called for the special council meeting was invalid because the formal action took place during an executive session. To voluntarily cure the violations in question, the formal actions from the executive session of Monday, March 17, 2014 and the special meeting of Monday, March 24, 2014 should be vacated and, if there is a desire to proceed with new replacement formal actions, the process to proceed should be in its entirety from inception through conclusion to adoption. As Ohio courts have differing views as to whether a public body can ever cure an invalid action, intervening or subsequent attempts to cure the violations should not be entered into. If this voluntary approach should be found to be unacceptable, the formal process provided for under The Ohio Open Meetings Act, Chapter Four: Enforcement and Remedies A., Enforcement 1. Injunction, c. Find a violation states: Upon proof of a violation or threatened violation of the Open Meetings Act, the court will conclusively and irrebuttably presume harm and prejudice to the person who brought the suit and will issue an injunction.

Prepared By:

John R. Hamercheck Councilman, Village of Madison 126 W. Main Street Madison, Ohio 44057