By Jonathan J. Downes* and George S. Crisci**
This morning, the Ohio Supreme Court decided (5-2) that Ohio’s Sunshine Law (R.C. 121.22) prohibits any private prearranged discussion of public business by a majority of the members of a public body regardless of whether the discussion occurs face-to-face, telephonically, by video conference, or electronically by e-mail, text, tweet or other form of communication. The dispute arose over e-mail exchanges among four school board members and school district employees that discussed responding to a newspaper editorial criticizing the school board’s policy change that required all communications between board members and staff first pass through the Superintendent or Treasurer. The policy change responded to the effort of the fifth board member to investigate improper expenditures by two athletic directors, which resulted in one resigning and both being required to reimburse the school district. One of the four board members participating in the e-mail exchanges drafted a response that the other three participating board members accepted. The board president then submitted the response to the newspaper, which published the response.
The case presents a classic exercise of how to interpret statutory language that does not specifically address the subject. The majority concluded that the definition of “meeting” under the Sunshine Law does not exclude electronic communications, while the dissent argued that the language does not include electronic communications within the statutory definition and that any revisions should be left to the General Assembly.
Given the widespread use of electronic communications among public sector legislators, this decision requires a reassessment of how e-mail can be used and probably significantly restricts such communications unless the General Assembly amends the law.
Zashin and Rich attorneys previously have cautioned the use of emails and are now assessing the immediate impact of the Ohio Supreme Court decision. We will be issuing within the next few days a more detailed analysis of the decision and its impact on communications and suggested language for electronic communications. All public agencies are advised to examine their policy regarding the use of emails and other electronic communications.
In the meantime, direct questions to George Crisci (gsc@zrlaw.com) in the Cleveland office (216-696-4441) and to Jonathan Downes (jjd@zrlaw.com) and Drew Piersall (dcp@zrlaw.com) in the Columbus office (614-224-4411).
*Jonathan J. Downes, an OSBA Certified Specialist in Employment and Labor Law and a Best Lawyer in America, has over 30 years of experience in practicing labor and employment law in Ohio and advising public sector clients regarding the requirements under Ohio’s open meetings (“Sunshine”) and public records laws. He represents cities, townships, counties, school districts, and public officials throughout the State of Ohio.
**George S. Crisci, an OSBA Certified Specialist in Employment and Labor Law and a Best Lawyer in America, likewise has over 30 years of experience in practicing labor and employment law in Ohio and has extensive knowledge of Ohio’s open meetings (“Sunshine”) and public records laws.
