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S. B. No. 93 As IntroducedAs Introduced
130th General Assembly | Regular Session | 2013-2014 |
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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:
(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:
(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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