State ex rel. Cincinnati Post v. Cincinnati

• Decision Date: 04 September 1996
• Docket Number: No. 95-1803,95-1803
• Parties: The STATE ex rel. CINCINNATI POST v. CITY OF CINCINNATI.
• Court: Ohio Supreme Court

Page 540

76 Ohio St.3d 540

668 N.E.2d 903

The STATE ex rel. CINCINNATI POST v. CITY OF CINCINNATI.

No. 95-1803.

Supreme Court of Ohio.

Submitted June 5, 1996.

Decided Sept. 4, 1996.

SYLLABUS BY THE COURT

The Ohio Sunshine Law cannot be circumvented by scheduling back-to-back meetings which, taken together, are attended by a majority of a public body.

In June 1995, the city of Cincinnati was given a figurative "two-minute warning" by the owner of the Cincinnati Bengals--if the city and Hamilton County did not agree by the end of June to build a new stadium for the team, the Bengals would move to Baltimore. The Cincinnati Reds' ownership was also putting the "squeeze play" on the city--the Reds wanted a stadium separate from the Bengals and were reportedly looking at sites in Kentucky. Neither team was satisfied with the county-owned Riverfront Stadium.

The city believed that the key to retaining both teams was to provide them with new facilities, and the city sought to enter into an agreement with the county to achieve that goal, prior to the expiration of the Bengals' deadline. Cincinnati's City Manager, John F. Shirey, met with the administrator for the county to discuss a proposal by the Hamilton County Commissioners for reaching an agreement. Any agreement would have to be approved by both city council and the county commissioners.

The meeting gave Shirey a general idea of what the county would require in an agreement. Shirey decided to huddle with council members regarding the county's proposal. As city manager, Shirey is the chief executive and administrative officer of the city. While he has a seat on council, he cannot vote. The city manager can propose legislative business for council to consider.

Regular council meetings are held every Wednesday at 2 p.m. in council chambers at City Hall. Council can convene special meetings upon the request of any two council members with twelve hours' notice to the other council members, and with an advertisement in a newspaper of general circulation in the city. In the past, council has convened special sessions at the request of the city manager.

Council's regular and special meetings are open to the public, except during executive sessions, which council periodically convenes during regular or special sessions. Executive session is held in a different room. The city manager often convenes executive sessions by asking two members of the council to move for an executive session. Executive sessions are not tape-recorded or broadcast, unlike regular and special sessions.

Such was the system for council meetings when Shirey called his first series of nonpublic, back-to-back sessions with council members on the morning of June 21, 1995. In all, three sets of back-to-back meetings were held between the city manager and council members. The same procedure applied to each set. The city manager's administrative assistant scheduled the meetings so that at no session would there be a majority of council members. In depositions the city manager testified that "the reason for having fewer than a majority of members of council at a meeting is so that we wouldn't violate Ohio['s] Open Meetings Law." Shirey testified that he understood that if a majority of council met to discuss possible business, and the public was excluded, the meeting would violate Ohio's "Sunshine Law." All of the meetings were held in the city manager's office, and the county's proposal for building new stadiums was discussed at all the sessions.

A total of six council members attended the June 21, 1995 sessions. Together, the sessions lasted three hours. Even though council did not follow its procedure for convening executive sessions, the meetings were closed to the public. The county's proposal was not discussed at council's regular, public meeting that afternoon.

The county publicly announced the specific terms of its proposal the next day, June 22, 1995. On Friday, June 23, Shirey had another series of back-to-back sessions with council members. On Monday, June 26, the final sessions were held. All were closed to the public and none followed council's procedure for convening executive sessions. At least five of the nine council members attended Friday's and Monday's meetings.

The city manager met again with the county administrator on June 27 to discuss the county's proposal. On Thursday, June 29, council held a special session open to the public at which it approved by a five-to-four vote the specific terms of a memorandum of understanding between the city and county. The memorandum of understanding contained key differences from the county's original proposal.

In the closed-door meetings, council members expressed opinions about the county's proposal, criticized parts of it, and expressed approval over parts of it, but no votes were taken. Before the first series of meetings, one council member asked to attend the first session, but was told he could not unless one of the already confirmed attendees did not appear or agreed to attend a later session. Another member of council showed up for a session for which he had not been confirmed, causing a majority of council to be present, and was asked to attend another session instead.

The city did not notify the public of any of the back-to-back sessions or otherwise allow the public to attend. News reporters waiting outside were not allowed in.

After being excluded from the back-to-back sessions and after council approved the agreement with the county, the Cincinnati Post asked the city to prepare and make available minutes describing what had been discussed at the sessions. The city refused, without acknowledging that the back-to-back sessions had actually occurred. The Post brought this action to compel the city to prepare and make available to the public minutes summarizing the discussions at the back-to-back sessions.

Baker & Hostetler, David L. Marburger, Hilary W. Rule, Cleveland, Jeffrey T. Williams, Columbus, and Bruce W. Sanford, Washington, DC, for relator.

Fay D. Dupuis, City Solicitor, and Karl P. Kadon III, Deputy City Solicitor, for respondent.

PFEIFER, Justice.

We hold that the Cincinnati City Council's back-to-back meetings, which, taken together, were attended by a majority of council members, violated the provisions of R.C. 121.22, that the dictates of R.C. 121.22 are applicable to Cincinnati City Council, and that the Cincinnati Post is entitled to its requested relief.

Ohio's "Sunshine Law," R.C. 121.22, requires that public officials, when meeting to consider official business, conduct those meetings in public. The statute reads:

"(A) 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 excepted by law."

The statute also requires public bodies to keep minutes of their meetings. R.C. 121.22(C) provides:

"All meetings of any public body are declared to be public meetings open to the public at all times. * * *

"The minutes of a regular or special meeting of any such public body shall be promptly prepared, filed, and maintained and shall be open to public inspection."

In State ex rel. Fairfield Leader v. Ricketts (1990), 56 Ohio St.3d 97, 564 N.E.2d 486, this court applied the Sunshine Law to supposedly "informal" meetings where discussions of public interest were held. In Fairfield Leader, the Fairfield County Commissioners met at a hotel on a Saturday morning for a "workshop" or "retreat" with a majority of the trustees of Violet Township and a majority of the members of the council of the village of Pickerington. Topics for the meeting included water and sewer service, traffic patterns, and land use planning.

Construing an earlier, similar version of R.C. 121.22(C), this court issued a writ of mandamus compelling the commissioners and the trustees separately to prepare minutes describing their discussions. This court held:

"[W]here, as here, the members of a public body agree to attend, in their official capacity, a meeting where public business is to be discussed and a majority of the members do attend, R.C. 121.22(C) necessitates that minutes of the meeting be recorded." 56 Ohio St.3d at 102, 564 N.E.2d at 491.

In this case, members of council agreed to attend a scheduled meeting to discuss public business. However, unlike in Fairfield Leader, a majority of council members were not present at any one session. R.C. 121.22(B)(2) defines a "meeting" as "any prearranged discussion of the public business of the public body by a majority of its members."

The question becomes whether a public body may circumvent the requirements of the statute by setting up back-to-back-meetings of less than a majority of its members, with the same topics of public business discussed at each. We hold that the statute prevents such maneuvering to avoid its clear intent.

First, we note that the statute states that it "shall be liberally construed." R.C. 121.22(A). A liberal construction of the definition of "meeting" would include the back-to-back sessions held by council in this case. The elements of the statutory definition of a meeting are (1) a prearranged discussion, (2) a discussion of the public business of the public body, and (3) the presence at the discussion of a majority of the members of the public body. The council meetings certainly fit within the first two elements. As to the third element, back-to-back sessions discussing exactly the same public issues can be liberally construed as two parts of the same meeting. A majority of council members thus did attend the "meeting."

Also, when construing a statute, this court's "paramount concern" is the statute's legislative intent. State v. S.R. (1992), 63 Ohio St.3d 590, 594, 589 N.E.2d 1319, 1323. This court avoids adopting a construction of...