130th Ohio General Assembly
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S. B. No. 93  As Introduced
As Introduced

130th General Assembly
Regular Session
2013-2014
S. B. No. 93


Senator Jones 



A BILL
To amend section 121.22 of the Revised Code to require that further information be stated in motions to hold executive sessions under the Open Meetings Act, to expand the fees and expenses that may be recovered for violation of the Act, and to make other changes to the Act.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1.  That section 121.22 of the Revised Code be amended to read as follows:
Sec. 121.22.  (A) This section shall be liberally construed to require public officials to take official action and to conduct all deliberations upon official consideration or discussion of public business only in open meetings unless the subject matter is specifically excepted by law.
(B) As used in this section:
(1) "Public body" means any of the following:
(a) Any board, commission, committee, council, or similar decision-making body of a state agency, institution, or authority, and any legislative authority or board, commission, committee, council, agency, authority, or similar decision-making body of any county, township, municipal corporation, school district, or other political subdivision or local public institution;
(b) Any committee or subcommittee of a body described in division (B)(1)(a) of this section;
(c) A court of jurisdiction of a sanitary district organized wholly for the purpose of providing a water supply for domestic, municipal, and public use when meeting for the purpose of the appointment, removal, or reappointment of a member of the board of directors of such a district pursuant to section 6115.10 of the Revised Code, if applicable, or for any other matter related to such a district other than litigation involving the district. As used in division (B)(1)(c) of this section, "court of jurisdiction" has the same meaning as "court" in section 6115.01 of the Revised Code.
(2) "Meeting" means any prearranged assemblage, congregation, or other gathering of a majority of the members of a public body for the consideration or discussion of the public business of the public body by a majority of its members, including, without limitation, for receiving or making reports, presentations, recommendations, or comments or for receiving or giving advice concerning the public business of the public body.
(3) "Regulated individual" means either of the following:
(a) A student in a state or local public educational institution;
(b) A person who is, voluntarily or involuntarily, an inmate, patient, or resident of a state or local institution because of criminal behavior, mental illness or retardation, disease, disability, age, or other condition requiring custodial care.
(4) "Public office" has the same meaning as in section 149.011 of the Revised Code.
(C) All meetings of any public body are declared to be public meetings open to the public at all times. A member of a public body shall be present in person at a meeting open to the public to be considered present or to vote at the meeting and for purposes of determining whether a quorum is present at the meeting.
The minutes of a regular or special meeting of any public body shall be promptly prepared, filed, and maintained and shall be open to public inspection. The minutes need only reflect the general subject matter of discussions in of an executive sessions session authorized under division (G) or (J) of this section need only reflect the general subject matter of matters considered or discussed in the executive session, but the minutes shall include the time that the public body convened and adjourned from the executive session, shall identify by name all individuals who were in attendance during the executive session except for the name of the individual to be considered or discussed under division (G)(1) of this section, and shall indicate the period of time each named individual attended the executive session.
(D) This section does not apply to any of the following:
(1) A grand jury;
(2) An audit conference conducted by the auditor of state or independent certified public accountants with officials of the public office that is the subject of the audit;
(3) The adult parole authority when its hearings are conducted at a correctional institution for the sole purpose of interviewing inmates to determine parole or pardon;
(4) The organized crime investigations commission established under section 177.01 of the Revised Code;
(5) Meetings of a child fatality review board established under section 307.621 of the Revised Code and meetings conducted pursuant to sections 5153.171 to 5153.173 of the Revised Code;
(6) The state medical board when determining whether to suspend a certificate without a prior hearing pursuant to division (G) of either section 4730.25 or 4731.22 of the Revised Code;
(7) The board of nursing when determining whether to suspend a license or certificate without a prior hearing pursuant to division (B) of section 4723.281 of the Revised Code;
(8) The state board of pharmacy when determining whether to suspend a license without a prior hearing pursuant to division (D) of section 4729.16 of the Revised Code;
(9) The state chiropractic board when determining whether to suspend a license without a hearing pursuant to section 4734.37 of the Revised Code;
(10) The executive committee of the emergency response commission when determining whether to issue an enforcement order or request that a civil action, civil penalty action, or criminal action be brought to enforce Chapter 3750. of the Revised Code;
(11) The board of directors of the nonprofit corporation formed under section 187.01 of the Revised Code or any committee thereof, and the board of directors of any subsidiary of that corporation or a committee thereof;
(12) An audit conference conducted by the audit staff of the department of job and family services with officials of the public office that is the subject of that audit under section 5101.37 of the Revised Code.
(E) The controlling board, the industrial technology and enterprise advisory council, the tax credit authority, or the minority development financing advisory board, when meeting to consider or discuss granting assistance pursuant to Chapter 122. or 166. of the Revised Code, in order to protect the interest of the applicant or the possible investment of public funds, by unanimous vote of all board, council, or authority members present, may close the meeting during consideration or discussion of the following information confidentially received by the authority, council, or board from the applicant:
(1) Marketing plans;
(2) Specific business strategy;
(3) Production techniques and trade secrets;
(4) Financial projections;
(5) Personal financial statements of the applicant or members of the applicant's immediate family, including, but not limited to, tax records or other similar information not open to public inspection.
The vote by the authority, council, or board to accept or reject the application, as well as all proceedings of the authority, council, or board not subject to this division, shall be open to the public and governed by this section.
(F) Every public body, by rule, shall establish a reasonable method whereby any person may determine the time and place of all regularly scheduled meetings and the time, place, and purpose of all special meetings. A public body shall not hold a special meeting unless it gives at least twenty-four hours' advance notice to the news media that have requested notification, except in the event of an emergency requiring immediate official action. In the event of an emergency, the member or members calling the meeting shall notify the news media that have requested notification immediately of the time, place, and purpose of the meeting.
The rule shall provide that any person, upon request and payment of a reasonable fee, may obtain reasonable advance notification of all meetings at which any specific type of public business is to be considered or discussed. Provisions for advance notification may include, but are not limited to, mailing the agenda of meetings to all subscribers on a mailing list or mailing notices in self-addressed, stamped envelopes provided by the person.
(G) Except as provided in division (J) of this section, the members of a public body may hold an executive session only after a majority of a quorum of the public body determines, by a roll call vote, to hold an executive session and only at a regular or special meeting for the sole purpose of the consideration or discussion of any of the following matters:
(1) To consider the The appointment, employment, dismissal, discipline, promotion, demotion, or compensation of a public employee or official, or the investigation of charges or complaints against a public employee, official, licensee, or regulated individual, unless the public employee, official, licensee, or regulated individual requests a public hearing. Except as otherwise provided by law, no public body shall hold an executive session for the discipline of an elected official for conduct related to the performance of the elected official's official duties or for the elected official's removal from office. If a public body holds an executive session pursuant to division (G)(1) of this section, the The motion and vote to hold that an executive session for these purposes shall state which one or more of the approved purposes listed in division (G)(1) of this section are the purposes for which the executive session is to be held, but need not include the name of any the person to be considered at or discussed during the meeting executive session.
(2) To consider the (a) The purchase of property for public purposes, or for the sale of property at competitive bidding, if premature disclosure of information would give an unfair competitive or bargaining advantage to a person whose personal, private interest is adverse to the general public interest. No The motion and vote to hold an executive session for these purposes shall specifically state whether the executive session is to consider or discuss the purchase of property for public purposes or the sale of property at competitive bidding.
(b) No member of a public body shall use division (G)(2) of this section as a subterfuge for providing covert information to prospective buyers or sellers. A purchase or sale of public property is void if the seller or buyer of the public property has received covert information from a member of a public body that has not been disclosed to the general public in sufficient time for other prospective buyers and sellers to prepare and submit offers.
(c) If the minutes of the public body show that all meetings of the public body and deliberations consideration by or discussions of the public body have been conducted in compliance with this section, any instrument executed by the public body purporting to convey, lease, or otherwise dispose of any right, title, or interest in any public property shall be conclusively presumed to have been executed in compliance with this section insofar as title or other interest of any bona fide purchasers, lessees, or transferees of the property is concerned.
(3) Conferences with an attorney for the public body concerning disputes involving the public body that are the subject of pending or imminent court action;. The motion and vote to hold an executive session for this purpose shall identify by name the public body's attorney and shall state whether the executive session concerns a pending court action or an imminent court action. If the executive session concerns a pending court action, the motion and vote to hold the executive session shall identify by case number the pending court action and its subject matter, but if the executive session concerns an imminent court action, the motion and vote to hold the executive session shall describe the imminent court action only if disclosure of it would not, in the opinion of the public body, create or cause a material disadvantage to the public body relative to the imminent court action. If, for this reason, the motion and vote to hold an executive session does not describe the imminent court action, the public body, not later than six months after holding the executive session, shall disclose at a meeting of the public body the imminent court action that was the subject of the executive session. At that meeting, the public body shall amend the minutes of the prior meeting during which the public body held the executive session, so that the minutes describe the imminent court action that was the subject of the executive session.
(4) Preparing for, conducting, or reviewing negotiations or bargaining sessions with public employees concerning their compensation or other terms and conditions of their employment;
(5) Matters required to be kept confidential by federal or state law or regulations or state statutes;. The motion and vote to hold an executive session because of these requirements shall identify the federal or state law or regulation that requires that the matters being considered or discussed by the public body in the executive session be kept confidential.
(6) Details relative to the security arrangements and emergency response protocols for a public body or a public office, if disclosure of the matters considered or discussed could reasonably be expected to jeopardize the security of the public body or public office;
(7) In the case of a county hospital operated pursuant to Chapter 339. of the Revised Code, a joint township hospital operated pursuant to Chapter 513. of the Revised Code, or a municipal hospital operated pursuant to Chapter 749. of the Revised Code, to consider trade secrets, as defined in section 1333.61 of the Revised Code.
If a public body holds an executive session to consider or discuss any of the matters listed in divisions division (G)(2) to (4), (6), or (7) of this section, the motion and vote to hold that executive session shall state which one or more of the approved matters listed in those divisions are to be considered or discussed at the executive session.
A public body specified in division (B)(1)(c) of this section shall not hold an executive session when meeting for the purposes specified in that division.
(H) A resolution, rule, or formal action of any kind is invalid unless adopted in an open meeting of the public body. A resolution, rule, or formal action adopted in an open meeting that results from deliberations consideration or discussion in a meeting not open to the public is invalid unless the deliberations were consideration or discussion was for a purpose specifically authorized in division (G) or (J) of this section and conducted at an executive session held in compliance with this section. A resolution, rule, or formal action adopted in an open meeting is invalid if the public body that adopted the resolution, rule, or formal action violated division (F) of this section.
(I)(1) Any person may bring an action to enforce this section for the failure of a public body or its members to comply with this section. An action under division (I)(1) of this section shall be brought within two years after the date of the alleged violation or threatened violation. Upon proof of a violation or threatened violation of this section in an action brought by any person, the court of common pleas shall issue an injunction to compel the members of the public body to comply with its provisions.
(2)(a) If the court of common pleas issues an injunction pursuant to division (I)(1) of this section, the court shall order the public body that it enjoins to pay a civil forfeiture of five hundred dollars to the party that sought the injunction and shall award to that party all court costs, and, subject to reduction as described in division (I)(2) of this section, shall award to the party's attorney reasonable attorney's fees and all litigation expenses incurred, including fees and expenses incurred to produce proof of the reasonableness and amount of the attorney's fees and to otherwise litigate entitlement to the fees and expenses. Court costs, attorney's fees, and litigation expenses awarded under this section shall be construed as remedial and not punitive. The court, in its discretion, may reduce an award of attorney's fees to the attorney of the party that sought the injunction or not award attorney's fees to the attorney of that party if the court determines both of the following:
(i) That, based on the ordinary application of statutory law and case law as it existed at the time of violation or threatened violation that was the basis of the injunction, a well-informed public body reasonably would believe that the public body was not violating or threatening to violate this section;
(ii) That a well-informed public body reasonably would believe that the conduct or threatened conduct that was the basis of the injunction would serve the public policy that underlies the authority that is asserted as permitting that conduct or threatened conduct.
(b) If the court of common pleas does not issue an injunction pursuant to division (I)(1) of this section and the court determines at that time that the bringing of the action was frivolous conduct, as defined in division (A) of section 2323.51 of the Revised Code, the court shall award to the public body all court costs and reasonable attorney's fees, as determined by the court.
(3) Irreparable harm and prejudice to the party that sought the injunction shall be conclusively and irrebuttably presumed upon proof of a violation or threatened violation of this section and the party need not demonstrate the presence of any public benefit.
(4) A member of a public body who knowingly violates an injunction issued pursuant to division (I)(1) of this section may be removed from office by an action brought in the court of common pleas for that purpose by the prosecuting attorney or the attorney general.
(J)(1) Pursuant to division (C) of section 5901.09 of the Revised Code, a veterans service commission shall hold an executive session for one or more of the following purposes unless an applicant requests a public hearing:
(a) Interviewing an applicant for financial assistance under sections 5901.01 to 5901.15 of the Revised Code;
(b) Discussing Considering or discussing applications, statements, and other documents described in division (B) of section 5901.09 of the Revised Code;
(c) Reviewing matters relating to an applicant's request for financial assistance under sections 5901.01 to 5901.15 of the Revised Code.
(2) A veterans service commission shall not exclude an applicant for, recipient of, or former recipient of financial assistance under sections 5901.01 to 5901.15 of the Revised Code, and shall not exclude representatives selected by the applicant, recipient, or former recipient, from a meeting that the commission conducts as an executive session that pertains to the applicant's, recipient's, or former recipient's application for financial assistance.
(3) A veterans service commission shall vote on the grant or denial of financial assistance under sections 5901.01 to 5901.15 of the Revised Code only in an open meeting of the commission. The minutes of the meeting shall indicate the name, address, and occupation of the applicant, whether the assistance was granted or denied, the amount of the assistance if assistance is granted, and the votes for and against the granting of assistance.
Section 2.  That existing section 121.22 of the Revised Code is hereby repealed.
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