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Trumbull prosecutor: Commissioners would likely lose court challenge of private meetings
By Ed Runyan
WARREN
Because the Trumbull County commissioners failed to notify the public and news media before two days of budget hearings Nov. 21-22, “it is likely that a court would invalidate any decisions made during, or made later as a result of, these hearings,” the Trumbull prosecutor says.
Prosecutor Dennis Watkins and Assistant Prosecutor Bill Danso advised the commissioners in a letter Wednesday that the “cure” for not notifying is to have the hearings again. The Vindicator obtained a copy of the letter Thursday after making a public records request.
“We strongly believe that the safest and best course of action would be for the Board to re-advertise and re-hold these hearings with full and proper notice to the public and the media,” their opinion states.
According to the rules the commissioners established Jan. 4 at their reorganization meeting, the commissioners are required to notify the news media, but also to post notices on bulletin boards in the county administration building and in the office of the county commissioners 24 hours before the meeting.
Attempts to find out Thursday whether such notices were posted were unsuccessful.
Watkins’ opinion cites an Ohio appeals court ruling that says when a government body has a meeting without notifying the public, the body must “start its decision-making process over with regard to what was illegally deliberated or decided in a closed meeting.”
Commissioner Dan Polivka notified The Vindicator Wednesday that the commissioners had decided to have the hearings again Dec. 8. The time of the first hearing has not been set.
At the outset of the new hearings, “it should be made clear that the Board will only consider information and discussions from the new hearings, not those that were previously held,” the opinion states.
Though someone could argue that a budget hearing is not one of the three recognized types of Ohio public meetings, the opinion cited the County Commissioners Association of Ohio handbook, which says budget hearings “should always comply with the Ohio open meeting law.”
The opinion notes that there were audio recordings made of the hearings.
“However, while there appears to be some legal authority that suggests that recordings may be sufficient to act as minutes of meetings in some circumstances, I have not been able to locate any legal authority that would suggest that recordings are a substitute for compliance with other provisions of the open meetings law,” the prosecutor’s opinion says.
The opinion cites a Vindicator article from Wednesday in which it was reported that the audio recorder used at the hearings was turned off in some cases. “Whether or not this is permissible, it could lead a court to be more skeptical as to the nature of these discussions,” the opinion says.
The Ohio Open Meetings Act says the way to challenge a potential violation of the act is for any person to file a court action seeking injunction in common pleas court.
“In light of the authority cited herein, any defense of the board’s recently held hearings would have a very low chance of success, and could cloud the budget process with additional distrust and potential legal challenges,” Watkins said.
The opinion also addressed government meetings sometimes dubbed “informational” and closed to the public and news media.
Watkins said the Ohio Supreme Court “has never sanctioned this type of meeting,” and the commissioners have never presented their budget hearings as “mere ‘information gathering’ sessions.”