Can a majority of the members of a public body hold private, prearranged discussions of public business by e-mail or other electronic means? “No,” answered the Ohio Supreme Court in the case of White v. King, Slip Opinion No. 2016-Ohio-2770.
In White, a majority of school board members privately e-mailed among themselves, as well as school employees, in order to develop a response to a negative editorial that ran in The Columbus Dispatch. Another school board member, who was not part of the e-mail exchange, filed suit against the school board and other board members claiming that they had violated the Open Meetings Act by privately e-mailing each other about the response to the editorial.
The Open Meetings Act provides that “[a]ll meetings of any public body are declared to be public meetings open to the public at all times.” R.C. 121.22(C). Thus, the crucial issue before the Ohio Supreme Court was whether e-mails between school board members could constitute a meeting.
In holding that e-mails can constitute a meeting, the Ohio Supreme Court explained that nothing in the Open Meetings Act requires that meetings occur face to face. “To the contrary, it provides that any prearranged discussion can qualify as a meeting.” White at ¶ 15. Based on this analysis, the Court concluded that the Open Meetings Act “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.” White at ¶ 15.
This case is an important reminder that school board members must ensure that they do not discuss public business via e-mail or other electronic means with a majority of board members. In fact, school board members should even be cautious about privately discussing public business via e-mail with only one other member of the board due to the fact that the school board member has no control over whether his/her colleague will forward that e-mail to another school board member for continued discussion. As the Ohio Supreme Court further explained, “[b]ack to back meetings discussing the same issues of public business could be liberally construed as parts of the same meeting” for the purposes of the Open Meetings Act and that “distinction between serial in-person communications [(i.e., a round robin)] and serial electronic communications for purpose of [the Open Meetings Act] is a distinction without a difference.” White at ¶¶ 17-18.
While not discussed in the White decision, there is a two year statute of limitations on violations of the Open Meetings Act. R.C. 121.22(I). This means that school boards may be at risk of having their decisions invalidated for two years after any Open Meetings Act violation – whether that violation occurs “face to face, telephonically, by video conference, or electronically by e-mail, text, tweet, or other form of communication.” White at ¶ 15.
At the end of the day, school board members are cautioned to err on the side of conducting all school district business at a properly noticed board meeting.
To read this case, please click here.
Authors: Matthew John Markling and Patrick Vrobel
Note: This blog entry does not constitute – nor does it contain – legal advice. Legal jurisprudence is like the always changing Midwestern weather. As a result, this single blog entry cannot substitute for consultation with a McGown & Markling attorney. If legal advice is needed with respect to a specific factual situation, please feel free to contact a McGown & Markling attorney.