White v. King (Slip Opinion) , 147 Ohio St. 3d 74 ( 2016 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
White v. King, Slip Opinion No. 2016-Ohio-2770.]
NOTICE
This slip opinion is subject to formal revision before it is published in
an advance sheet of the Ohio Official Reports. Readers are requested
to promptly notify the Reporter of Decisions, Supreme Court of Ohio,
65 South Front Street, Columbus, Ohio 43215, of any typographical or
other formal errors in the opinion, in order that corrections may be
made before the opinion is published.
SLIP OPINION NO. 2016-OHIO-2770
WHITE, APPELLANT, v. KING ET AL., APPELLEES.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as White v. King, Slip Opinion No. 2016-Ohio-2770.]
Open Meetings Act―R.C. 121.22―Definition of “meeting”―R.C. 121.22
prohibits any private prearranged discussion of public business by
majority of members of public body regardless of whether discussion
occurs face to face, telephonically, by video conference, or electronically
by e-mail, text, tweet, or other form of communication.
(No. 2014-1796—Submitted November 17, 2015—Decided May 3, 2016.)
APPEAL from the Court of Appeals for Delaware County,
No. 14 CAE 02 0010, 2014-Ohio-3896.
____________________
SYLLABUS OF THE COURT
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
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discussion occurs face to face, telephonically, by video conference, or
electronically by e-mail, text, tweet, or other form of communication.
____________________
O’DONNELL, J.
{¶ 1} Adam White, a member of the Olentangy Local School District
Board of Education, appeals from a judgment of the Fifth District Court of
Appeals affirming an order granting judgment on the pleadings in favor of the
board in an action involving Ohio’s Open Meetings Act, R.C. 121.22. The issue
presented on this appeal is whether a series of e-mails between and among a
majority of the members of a public body relating to a response to a newspaper
editorial, which culminated in the publication of a response that the board later
ratified at a public meeting qualifies as a “meeting” for purposes of R.C. 121.22.
Facts and Procedural History
{¶ 2} At the time pertinent to this matter, the school board consisted of
White, Julie Feasel, Kevin O’Brien, Stacy Dunbar, and president David King.
The amended complaint alleges that White independently conducted an
investigation into alleged improper expenditures by two athletic directors
employed by the Olentangy Local School District that resulted in one resigning
and both being required to reimburse the district. Thereafter, on September 25,
2012, King, Feasel, O’Brien, and Dunbar amended a board policy to require that
all communications between board members and staff first pass through the
district superintendent or the district treasurer. White voted against the policy
change, and on October 11, 2012, the Columbus Dispatch published an editorial
entitled “Role Reversal” in which it praised White for his vote and implicitly
criticized the other board members for adopting a restrictive policy designed to
thwart White from conducting further investigations into suspected illegal
spending by district employees.
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{¶ 3} King then sought to have Feasel, O’Brien, and Dunbar publicly
respond to the editorial and directed that they and Superintendent Wade Lucas
and district staff members Teresa Niehaus, Linda Martin, and Karen Truett
collaborate and issue a response to the editorial on behalf of the board. The board
members and district employees did so in a series of e-mail exchanges. O’Brien
submitted a proposed response signed by all board members except for White to
the Dispatch. King then submitted a final response to the Dispatch that he signed
in his capacity as board president indicating that Feasel, O’Brien, and Dunbar
consented to its publication. The Dispatch published that response on October 27,
2012.
{¶ 4} Approximately six months later, White filed this lawsuit against
King, Feasel, O’Brien, and Dunbar, alleging that they had violated the Open
Meetings Act. That same day, at a regular board meeting, White advised the
board of the lawsuit and moved that “no public monies be spent defending the 4
board members, or in the alternative, if any public monies are spent defending the
4 board members, those members agree to reimburse the district for any monies
spent.” The motion died for lack of a second. King, Feasel, O’Brien, and Dunbar
then voted to publicly ratify the response and deny that the board “violated the
Sunshine Law.” White abstained from these votes.
{¶ 5} The board members answered the complaint and moved for
judgment on the pleadings. White then moved for leave to amend his complaint
and add the board itself as a defendant. The trial court granted White’s motion,
ordered the clerk to file the amended complaint instanter, and denied the motion
for judgment on the pleadings as moot. In the amended complaint, White sought
a declaratory judgment that the board and other board members violated the Open
Meetings Act, statutory damages, a temporary restraining order, and injunctive
relief. The respondents answered and jointly moved for judgment on the
pleadings pursuant to Civ.R. 12(C).
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{¶ 6} The trial court determined that King, Feasel, O’Brien, and Dunbar
had immunity and were entitled to judgment on the pleadings in their individual
capacities. The court also granted the board’s motion for judgment on the
pleadings for three reasons: no prearranged discussion of public business had
occurred because the communications among the board members originated with
an unsolicited e-mail from King, R.C. 121.22 does not apply to e-mails, and at the
time of the e-mail exchange, there was no pending rule or resolution before the
board.
{¶ 7} On appeal, White challenged the court’s ruling only with respect to
the board. In affirming, the appellate court held that the definition of “meeting”
in R.C. 121.22 does not include sporadic e-mails and that the e-mails did not
discuss public business because at the time they were exchanged, there was no
pending rule or resolution before the board. And, despite the fact that the board
later ratified the response to the editorial, ratification did not retroactively create a
prearranged discussion of public business via e-mails. Finally, the appellate court
stated that “mere discussion of an issue of public concern does not mean there
were deliberations under the statute.” 2014-Ohio-3896, ¶ 26.
{¶ 8} White has presented two propositions of law, which we accepted:
Under the Ohio Open Meetings Statute, Ohio Rev. Code
§121.22, liberally construed, private deliberations concerning
official business are prohibited, whether such deliberations are
conducted in person at an actual face-to-face meeting or by way of
a virtual meeting using any other form of electronic
communication such as telephone, e-mail, voicemail, or text
messages.
Under the Ohio Open Meetings Statute, Ohio Rev. Code
§121.22, when a board of education formally votes to ratify a prior
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action, the ratified action constitutes “official business” under the
Statute.
Positions of the Parties
{¶ 9} White maintains that he has established an Open Meetings Act
violation in that King prearranged a private discussion regarding a response to a
Columbus Dispatch editorial, a majority of the board members and district staff
participated in that discussion in their official capacities, and that discussion
resulted in a policy statement that the board later ratified. He also argues that
sanctioning public bodies’ avoidance of R.C. 121.22 by discussing public
business electronically subverts the purpose of the law and that incremental
electronic communications violate the law, relying on State ex rel. Cincinnati
Post v. Cincinnati, 76 Ohio St. 3d 540, 668 N.E.2d 903 (1996).
{¶ 10} The board responds that the amended complaint fails to establish
that a meeting occurred for purposes of the Open Meetings Act, asserting that the
law does not apply to e-mails because it does not mention electronic
communications, even though the General Assembly has amended it several times
since 2005, when a court of appeals held that it did not apply to e-mail. In
addition, the board argues that discussions about a response to a newspaper
editorial do not involve public business. Only private deliberations on a pending
rule or resolution can violate R.C. 121.22, and in this case, the policy vote
occurred before the publication of the editorial, and the board’s decision to later
ratify its response to the editorial to defend against a lawsuit did not retroactively
convert the prior e-mails into a discussion of public business.
Issue
{¶ 11} The issue here is whether an e-mail discussion by a majority of the
members of a public body for the purpose of drafting a response to an editorial
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that is subsequently ratified at a public meeting qualifies as a meeting for
purposes of R.C. 121.22.
Law and Analysis
Standard of Review
{¶ 12} In State ex rel. Midwest Pride IV, Inc. v. Pontious, 75 Ohio St. 3d
565, 570, 664 N.E.2d 931 (1996), we explained:
Under Civ.R. 12(C), dismissal is appropriate where a court (1)
construes the material allegations in the complaint, with all
reasonable inferences to be drawn therefrom, in favor of the
nonmoving party as true, and (2) finds beyond doubt, that the
plaintiff could prove no set of facts in support of his claim that
would entitle him to relief. Thus, Civ.R. 12(C) requires a
determination that no material factual issues exist and that the
movant is entitled to judgment as a matter of law.
(Citation omitted.)
{¶ 13} “Because the review of a decision to dismiss a complaint pursuant
to Civ.R. 12(C) presents only questions of law, our review is de novo.” (Citation
omitted.) Rayess v. Educational Comm. for Foreign Med. Graduates, 134 Ohio
St.3d 509, 2012-Ohio-5676, 983 N.E.2d 1267, ¶ 18.
R.C. 121.22
{¶ 14} R.C. 121.22(C) provides that “[a]ll meetings of any public body are
declared to be public meetings open to the public at all times.” A “public body”
includes a board of a school district. R.C. 121.22(B)(1)(a). The term “meeting”
means “any prearranged discussion of the public business of the public body by a
majority of its members.” R.C. 121.22(B)(2).
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{¶ 15} Nothing in the plain language of R.C. 121.22(B)(2) expressly
mandates that a “meeting” occur face to face. To the contrary, it provides that
any prearranged discussion can qualify as a meeting. Accordingly, 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.
{¶ 16} The fact that the discussion in this case occurred through a series of
e-mail communications does not remove that discussion from the purview of R.C.
121.22. In Cincinnati Post, Cincinnati’s city manager, John Shirey, scheduled
three series of nonpublic, back to back meetings with members of the Cincinnati
City Council regarding the construction of new stadiums for the Cincinnati
Bengals and Cincinnati Reds. Less than a majority of council members attended
the individual meetings, but a majority of members attended each series of
meetings. The Cincinnati Post brought a mandamus action in this court to compel
the city to prepare and make available to the public minutes summarizing the
discussions at the meetings pursuant to R.C. 121.22.
{¶ 17} In granting the writ, we explained that “[t]he statute that exists to
shed light on deliberations of public bodies cannot be interpreted in a manner
which would result in the public being left in the dark.” Cincinnati Post, 76 Ohio
St.3d at 544, 668 N.E.2d 903. Back to back meetings discussing the same issues
of public business could be liberally construed as parts of the same meeting for
purposes of R.C. 121.22. Therefore, we held that a majority of council members
attended a nonpublic meeting in violation of the statute.
{¶ 18} The distinction between serial in-person communications and serial
electronic communications via e-mail for purposes of R.C. 121.22 is a distinction
without a difference because discussions of public bodies are to be conducted in a
public forum, and thus, we conclude that in this instance, a prearranged discussion
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of the public business of a public body by a majority of its members through a
series of private e-mail communications is subject to R.C. 121.22. This
conclusion is consistent with the mandate of R.C. 121.22(A) that the statute “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.” Allowing public bodies to avoid
the requirements of the Open Meetings Act by discussing public business via
serial electronic communications subverts the purpose of the act. Compare Del
Papa v. Bd. of Regents of Univ. & Community College Sys. of Nevada, 114 Nev.
388, 392, 397, 400, 956 P.2d 770 (1998) (interpreting definition of “meeting” in
Nevada’s Open Meeting Law, i.e., a gathering of members of a public body at
which a quorum is present to deliberate toward or make a decision on certain
matters, to encompass serial electronic communications, consistent with statute
stating electronic communication must not be used to circumvent spirit or letter of
that law); Wood v. Battle Ground School Dist., 107 Wash.App. 550, 564, 27 P.3d
1208 (2001) (holding exchange of e-mails could constitute a meeting for purposes
of Washington’s Open Public Meetings Act in light of the act’s broad definition
of a “meeting,” the act’s purpose, and the statutory mandate that the act be
liberally construed).
{¶ 19} The dissent maintains that our interpretation of the Open Meetings
Act amounts to a judicial rewrite of the statute because “[m]eetings differ from
other types of communication because they are events or gatherings at which real-
time communication can occur.” Dissenting opinion at ¶ 30. The dissent states
that “[b]ecause a meeting is an event that requires parties to participate at the
same time, the requirement is that it be ‘prearranged.’ R.C. 121.22(B)(2).” Id.
According to the dissent, here there is “no allegation that discussions were either
prearranged or that they occurred in real time,” id. at ¶ 37, so the e-mails at issue
do not qualify as a meeting.
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{¶ 20} Tellingly, the dissent points to no language in R.C. 121.22(B)(2)
requiring real-time communication and instead relies on language in unrelated
statutory provisions to support its argument that such a requirement exists. Thus,
the dissent’s position is not well taken because it necessitates adding language to
the General Assembly’s definition of a meeting. Additionally, White alleged that
King instructed other board members and district staff to collaborate and issue a
response to the editorial and that they did so via e-mail on or about October 11,
2012. Thus, White may be able to prove a set of facts to support his claim that the
e-mail discussion in this case was prearranged.
{¶ 21} Regarding the “public business” requirement of R.C. 121.22(B)(2),
that phrase is “ ‘commonly understood to mean the business of the government.’ ”
Associated Press v. Canterbury, 224 W.Va. 708, 716, 688 S.E.2d 317 (2009),
quoting O'Melia v. Lake Forest Symphony Assn., Inc., 303 Ill.App.3d 825, 828,
708 N.E.2d 1263 (1999). “That is, ‘the words “public business” * * * relate only
to matters within the purview of [a public body’s] duties, functions and
jurisdiction.’ ” Id., quoting Lucarelli v. Freedom of Information Comm.,
Conn.Super.Ct. No. CV 91-0063707S, 1992 WL 209848, *3 (Aug. 18, 1992), and
citing Kansas City Star Co. v. Fulson, 859 S.W.2d 934, 940 (Mo.App.1993)
(“Public business encompasses those matters over which the public governmental
body has supervision, control, jurisdiction or advisory power”).
{¶ 22} In Del Papa, Nancy Price, a member of the Board of Regents for
the University and Community College System of Nevada, made comments to the
press criticizing the conduct of her fellow regents in selecting the presidents of a
university and a community college and an external auditor. At least seven board
members expressed concerns about her comments to board chairman James
Eardley, and Eardley, in turn, asked Constance Howard, the university’s interim
director of public information, to draft a response to the comments. Howard
drafted a media advisory expressing the board members’ concern that Price’s
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comments were unsubstantiated, incorrect, and damaging to the board and to the
university as a whole and stating that the members felt it was important to
publicly protest the statements to protect the board’s integrity and policy making
role. Eardley reviewed the draft and disseminated it by facsimile transmission to
all board members except Price, along with a memorandum Howard wrote
requesting feedback and advice and stating that the advisory would not be
released without board approval. The board members responded by way of
telephone calls to Eardley, Howard, or both, charged to university calling cards.
Some members disagreed with the use of their names and, in varying degrees, the
language of the advisory itself, so Eardley did not issue it.
{¶ 23} In that case, the Nevada Supreme Court held that the board violated
the state’s Open Meeting Law, which at that time defined a meeting as involving
deliberation toward a decision or a decision “ ‘on any matter over which the
public body has supervision, control, jurisdiction, or advisory power.’ ” Del
Papa, 114 Nev. at 392, 956 P.2d 770, quoting former Nev.Rev.Stat.Ann.
241.015(2), now (3)(a)(1). The court determined that the board violated a
statutory prohibition against closed meetings because it acted in its “official
capacity as a public body” in deciding not to take action with respect to the media
advisory, emphasizing the board’s use of university resources and the fact that the
advisory “was drafted as an attempted statement of University policy.” Id. at 401.
{¶ 24} Similarly, in this case, King allegedly instructed district staff
members to assist a majority of board members in preparing a board response to
an editorial that criticized one of its decisions. Subsequently, a majority of the
board members voted to ratify the board’s response at a public meeting, further
indicating that the response fell within the purview of the board’s duties,
functions, and jurisdiction because under the Open Meetings Act, when a board of
education formally votes to ratify a prior action, the ratified action constitutes
“public business” under the statute. We conclude, in accord with the analysis in
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Del Papa, that the facts alleged in the amended complaint filed in this case
support the conclusion that the e-mail discussion here qualified as a discussion of
public business by the board.
Conclusion
{¶ 25} Taking the material allegations in the amended complaint as true
and construing all reasonable inferences in favor of White, in accord with State ex
rel. Midwest Pride IV, 75 Ohio St. 3d at 570, 664 N.E.2d 931, we conclude that
White may be able to prove a set of facts to support his claim that may entitle him
to relief. As demonstrated in this case, serial e-mail communications by a
majority of board members regarding a response to public criticism of the board
may constitute a private, prearranged discussion of public business in violation of
R.C. 121.22 if they meet the requirements of the statute. Accordingly, the
judgment of the appellate court affirming the trial court’s dismissal of White’s
complaint pursuant to Civ.R. 12(C) is reversed, and the cause is remanded to the
trial court for further proceedings consistent with this opinion.
Judgment reversed
and cause remanded.
PFEIFER, KENNEDY, FRENCH, and O’NEILL, JJ., concur.
LANZINGER, J., dissents with an opinion that O’CONNOR, C.J., joins.
_________________
LANZINGER, J., dissenting.
{¶ 26} Even when liberally interpreted, R.C. 121.22 has been limited in
scope to the meetings of public bodies. I respectfully dissent from the majority’s
judicial rewrite of what is commonly known as Ohio’s Sunshine Law or Open
Meetings Act. While it may be a good idea to limit the use of e-mail to avoid
statutorily required public meetings, that is the task of the General Assembly and
not this court. I would affirm the judgment of the court of appeals, which, in my
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view, properly held that the e-mails in this case are not encompassed within the
current statutory definition of “meeting.”
{¶ 27} The definition of the term “meeting” is found at R.C. 121.22(B)(2)
and is relatively simple: “ ‘Meeting’ means any prearranged discussion of the
public business of the public body by a majority of its members.” In spite of this
plain declaration, the majority declares:
Nothing in the plain language of R.C.
121.22(B)(2) expressly mandates that a “meeting”
occur face to face. To the contrary, it provides that
any prearranged discussion can qualify as a
meeting. Accordingly, 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.
(Emphasis added in part.) Majority opinion at ¶ 15.
{¶ 28} In other words, the majority rewrites R.C. 121.22(B)(2) to redefine
“meeting” to include all forms of communication, even though the statute does
not refer to e-mail correspondence or anything like it. The Fifth District and two
other appellate courts have refused to apply the statute to cover e-mails. See
Haverkos v. Northwest Local School Dist. Bd. of Edn., 1st Dist. Hamilton Nos.
C-040578 and 040589, 2005-Ohio-3489, 995 N.E.2d 862, ¶ 9 (“Ohio’s Sunshine
Law does not cover e-mails”); Radtke v. Chester Twp., 11th Dist. No. 2014-G-
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3222, 2015-Ohio-4016, 44 N.E.3d 295, ¶ 31 (“the Open Meetings Act does not
apply to e-mails”).
{¶ 29} In expanding this case to include all forms of “communication” in
its interpretation of “meeting,” the majority reaches into areas well beyond those
covered by R.C. 121.22.
{¶ 30} It is critical to remember that Ohio’s Sunshine Law relates to open
meetings. Meetings differ from other types of communication because they are
events or gatherings at which real-time communication can occur. See, e.g., R.C.
1745.21(C) (meeting involves contemporaneous communication); R.C.
5312.04(D) (essential component of meeting is ability to communicate in real
time). Because a meeting is an event that requires parties to participate at the
same time, the requirement is that it be “prearranged.” R.C. 121.22(B)(2).
{¶ 31} We focused on the essential concept of a “meeting” as it applies to
the Sunshine Law in State ex rel. Cincinnati Post v. Cincinnati, 76 Ohio St. 3d
540, 668 N.E.2d 903 (1996). And we considered the three parts of the statutory
definition:
A liberal construction of the definition of “meeting”
would include the back-to-back sessions held by
[city] 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
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construed as two parts of the same meeting. A
majority of council members thus did attend the
“meeting.”
Id. at 543.
{¶ 32} In Cincinnati Post, we held that the city council's private back-to-
back meetings, which, taken together, were attended by a majority of council
members, violated R.C. 121.22. We noted the importance of meeting attendance
rather than mere discussions between members:
The statute does not prohibit impromptu hallway
meetings between council members—the statute
concerns itself with prearranged discussions. It does
not prohibit member-to-member prearranged
discussions. The statute concerns itself only with
situations where a majority meets. Although a
majority of council members were not in the same
room at the same time, a majority of them did
attend a prearranged meeting to deliberate on
issues of great interest to the public.
(Emphasis added.) Id. at 544.
{¶ 33} The majority cites statutes and public policy found in other
jurisdictions, but they of course have different statutes. And the policy of liberal
interpretation does not stretch so far as to purge all the meaning from a statutory
term. The purpose of the Sunshine Law is to “require public officials to take
official action and to conduct all deliberations upon official business only in open
meetings,” as R.C. 121.22(A) explains. We have considered the liberal
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application of R.C. 121.22 in a case in which it was argued that informal meetings
were not subject to the Open Meetings Act or its requirement for minutes. State
ex rel. Fairfield Leader v. Ricketts, 56 Ohio St. 3d 97, 102, 564 N.E.2d 486
(1990).
{¶ 34} There we held that the act covers “more than just meetings
authorized by a public body,” but that it “also refers to any meeting that the public
body causes to take place.” Id. at 102. The key is that “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 * * *.” Id.
{¶ 35} This is not to say that discussions through e-mails could never
constitute a meeting. For instance, a board member could communicate
independently with a majority of his or her fellow board members and prearrange
for each of them to be available to send and receive e-mails at a specific day and
time. The other board members could be anywhere—on a plane, at work, or at a
child’s soccer practice—at the prearranged moment, but they all could still access
their e-mails. The initiating board member would need to send only one e-mail
jointly addressed to all of the awaiting board members, who, by replying to all
addressees, could then engage in what is essentially a prearranged and real-time
discussion with a majority of their fellow board members about a matter of public
business. I believe that such a situation could constitute a “meeting” within the
definition of that term in R.C. 121.22(B)(2).
{¶ 36} Given the General Assembly’s exhortation that the Open Meetings
Act “shall be liberally construed to require public officials to take official action
and to conduct all deliberations upon official business only in open meetings,”
R.C. 121.22(A), we must be wary of any attempt to avoid the transparency that
the public deserves. As one commentator recently noted:
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As technological advances revolutionize communication
patterns in the private and public sectors, government actors must
consider their reactions carefully. Public representatives may take
advantage of modern technology to improve communications with
constituents and to operate more efficiently. However, this
progress must be made with an eye to complying with certain
statutory restrictions placed on public bodies.
(Footnote omitted.) Roeder, Transparency Trumps Technology: Reconciling
Open Meeting Laws with Modern Technology, 55 Wm. & Mary L.Rev. 2287,
2288 (2014).
{¶ 37} However, in this case there is no allegation that discussions were
either prearranged or that they occurred in real time. Therefore, the subject e-
mails do not qualify as a “meeting” as the term is currently defined.
{¶ 38} It may well be a good idea for the General Assembly to consider
expanding the reach of the law to prohibit a majority of members of a public body
from e-mailing each other to avoid the Sunshine Law. It should reexamine the
law and take action to ensure that the Sunshine Law will continue to promote
transparency in government as technology changes.
{¶ 39} But a majority of this court should not add language that has not
been fully considered by the public’s legislative representatives. The unintended
consequences of broadening the word “meeting” beyond its current definition
could affect adversely how members of public bodies do their business.
{¶ 40} I would affirm the judgment of the court of appeals.
O’CONNOR, C.J., concurs in the foregoing opinion.
_________________
Phillip L. Harmon, Attorney at Law, L.L.C., and Phillip L. Harmon, for
appellant.
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Crabbe, Brown & James, L.L.P., and John C. Albert, for appellees.
Baker Hostetler, L.L.P., and David L. Marburger, urging reversal for
amici curiae, Ohio Coalition for Open Government, Common Cause Ohio, and
the League of Women Voters of Ohio.
__________________
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