JOINT FIRE DISTRICT Closed-door meetings could lead to court challenge, law experts say

Council members have met after council meetings for years.
By D.A. WILKINSON
VINDICATOR SALEM BUREAU
SALEM -- The city may have jeopardized its efforts to eliminate its fire department by not following Ohio law regarding open meetings, two experts said.
Cleveland attorney David Marburger, a specialist in Ohio's Sunshine Law that regulates open meetings, said the proposed pact could be in jeopardy in a court challenge.
Salem City Council and Perry Township trustees have written a contract that would eliminate both departments and create a joint fire district. Salem would save about $700,000 a year.
Council appointed two members to negotiate the pact with a trustee and announced that the group would negotiate privately.
Marburger said this week that the contract could be challenged because the three-member body became a public body but apparently didn't follow Ohio law on open meetings.
Marburger added that in reality, judges are loath to overturn such pacts and often rule in favor of the subdivisions.
Timothy D. Smith, a Kent State University journalism professor and an attorney dealing with press issues, agreed with Marburger.
The trio became a board subject to Ohio law and "should have kept minutes," Smith said.
Smith pointed out that Marburger fought and won a case before Ohio's Supreme Court on that very issue.
What's legal
Creating a fire district is not necessarily a legal reason to go behind closed doors, Smith said.
Personnel action, a catch-all used by many public boards for closed-door sessions, might only apply to action where an issue such as discipline of a worker might be discussed before it is made public, Smith added.
But that's only one of three open-records issues dogging the fire district proposal.
Fire department members have photographed council members and administration officials at Ezio's Italian Restaurant after council meetings on Sept. 7 and 21. The restaurant is a few feet from city hall.
Photos from both meetings show a majority of council members were present.
Ohio law says meetings are public if they are prearranged, there's a majority of officials, and business is discussed or conducted.
Michael Burns, head of the Salem firefighters union, said such meetings do not make him feel warm and cozy.
The fire department went to fact- finding and arbitration in its last three contracts, Burns said. It won each time, which gave firefighters the same benefits as other city workers. Burns believes the city is taking the approach that if it can't beat the fire department, it will abolish it.
At the restaurant meetings, Burns said, "You know they're talking shop."
The post-meeting dinners are no secret and have been going on for at least a decade, said Councilwoman Nancy Cope.
The press has been invited, but the dinners aren't posted or publicized as being open to the public.
Marburger said council could meet at the restaurant only if everyone could pull up a chair.
Cope said officials do engage in "shop talk" about council action but are there to eat. She said officials aren't breaking the law because they are not discussing specific legislative action.
"Yeah, right," said Smith.
Cope didn't think council was even violating the spirit of the Sunshine Law.
Here's the problem
At the Sept. 21 council meeting, several council members said that council and the fire department weren't hearing each other. Cope did not believe that communication gap came from council's questionable policies on open meetings.
Council President David Ventresco noted he rarely goes to eat after the meetings. He declined to comment on whether council's actions may have been improper.
"I think council has done what it thought it had to do. There are two ways to go. You can take the high road or the low road, and council decided to deal with it in this fashion," Ventresco said.
Marburger believes the dinner meetings are public because the routine meetings makes them prearranged and that talking shop constitutes discussing city business.
Stephanie Ritchie, wife of Salem firefighter Lance Ritchie, filed a written public-records request with city officials Aug. 25, asking for their notes on the negotiations. Public-record requests can be made verbally or in writing.
She also asked in writing whether council had conducted business over the telephone in approving a letter to the editor.
Law Director C. Brooke Zellers told council members Sept. 21 to turn over their notes. Ventresco said he also told council members to turn over any notes.
Three council members, Cope, A. Frederick Vogel and Walter Bezeredi, replied. They were not involved in the negotiations.
But Ritchie has yet to receive any notes from others.
Zellers did not return a call seeking comment. Ventresco said that if council members did not comply, "then shame on them."
Marburger said the lack of response means Ritchie isn't going to get one.
Here's the situation
Ritchie sent the same request for notes to Jerry Wolford, the trustee negotiator. The Columbiana County prosecutor's office ruled Wolford did not have to comply because her request was addressed to council, not the township.
But she made the same request verbally at a trustees meeting Monday. She received Wolford's notes Friday.
Ritchie said that she also asked for 99 township fire department reports several months ago. So far, she has received only nine.
Ritchie recently attended a meeting in Youngstown with Ohio Attorney General Jim Petro, where it was stressed that subdivisions need to meet public-record requests.
A recent audit by news organizations of the law statewide resulted in unconditional access in only 53 percent of the requests to government and school officials.
In reality, Ritchie said, the Ohio records law "has no teeth to it."
Should the fire department challenge any council action in court, it would be expensive and firefighters may be out of their jobs for several years before the issue is resolved.
Ritchie said people would have to ask themselves, "Is it worth it?"