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OSU says meetings OK; others not so sure

Experts contend that trustees' approach to Sunshine Law could imperil actions

Tuesday, July 13, 2004

Bill Bush
THE COLUMBUS DISPATCH
Reprinted by Permission

Private one-on-one discussions and secret "briefing sessions" involving Ohio State University trustees don't violate their obligation to discuss official business in public, board Chairwoman Tami Longaberger said yesterday. But two experts on Ohio's Open Meetings Act, also known as the Sunshine Law, say such sessions put the board's decisions at risk of being voided if challenged in a court on procedural grounds.

One such secret session occurred Friday, just before the board met in public to approve, without discussion, health-insurance benefits for same-sex domestic partners.

University officials said yesterday that a board member questioned the university administration about how the vote on the issue would be recorded but that no substantive discussion of it took place in that session.

Longaberger said no debate was needed at either the closed or open meeting because she and university President Karen A. Holbrook already had discussed the initiative one-on-one with the other board members.

"I want to very carefully follow what we believe the law permits," Longaberger said.

She called the private discussions and meetings an opportunity for Holbrook "to develop her thinking, raise questions that she can do in comfort, without being judged."

The board serves not only the public, but it also "is there to support our president and administration," she said.

One trustee, who asked not to be named, said decisions never reach the board table unless a unanimous vote is guaranteed.

Longaberger said that to her knowledge, all board votes have been unanimous since she joined, about eight years ago. She discusses board initiatives privately with other members but doesn't poll them, she said.

The same-sex benefits issue surfaced June 30 at a closed meeting among Longaberger, Holbrook and two other board members, Longaberger said. At that meeting, Holbrook was instructed to discuss the issue one-on-one with each trustee, Longaberger said.

Longaberger herself discussed the issue in private conversations with seven of the 11 board members, she said.

She said she would have brought the same-sex benefits question to a vote regardless of whether a trustee opposed it.

The Ohio attorney general's office says that "round-robin" discussions -- the one-on-ones -- "appear to violate the Open Meetings Act." A public body must not circumvent the law by scheduling back-to-back discussions that, taken together, are "attended by a majority of the members," the office said in its Sunshine Laws Update.

On Friday, university attorney Virginia Trethewey said board members listen to presentations and ask questions at the closed meetings. "No decisions were entertained or made" at the one that day, she said.

However, "No decisions can ever be entertained or made in private -- whatsoever, under any circumstances," said Tim Smith, a Kent State University journalism professor specializing in open records and media law. "So what you've got is blather and bull from the attorney.

"If they asked questions of the president, that was a discussion. This was a violation of the Sunshine Law."

The Open Meetings Act basically makes all deliberations on official business public unless the law grants an exemption.

"The very first section of the statute is that it should be liberally construed," said Thomas Hodson, a former lawyer and judge who is director of the E.W. Scripps School of Journalism at Ohio University. "The burden is really upon the government to show that they complied.

"Was this (closed meeting) prearranged? Yes. Did they discuss business? Yes. If then they took action, then that action could be void. It certainly would open it to possible litigation."

bbush@dispatch.com

This article is also available at the dispatch.com.

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