In the case of State ex rel. Bates v. Smith, Slip Opinion No. 2016-Ohio-5449, the Ohio Supreme Court invalidated the actions of two trustees who attempted to declare the third trustee office vacant because (1) the office was not vacant under Ohio law and (2) the trustees violated the Open Meetings Act.
The dispute began when one of the trustees, who also serves in the Ohio Army National Guard, missed five board meetings due to his deployment. These absences did not create an issue until one of the two remaining, non-deployed trustees was defeated in his reelection bid, meaning his term would end on December 31, 2015.
In an apparent effort to avoid the defeated trustee from no longer serving on as a trustee, the two non-deployed trustees presented a petition on December 30, 2015, requesting the absent trustee’s resignation. The meeting adjourned at 11:15 a.m. Following this meeting, and without any prior announcement of an emergency or an emergency meeting, the board posted a paper notice on the township-hall door of an emergency meeting to be held on December 31, 2015, at 11:00 a.m.
At the December 31st meeting, the trustees voted to declare the absent trustee’s office vacant and then appointed the defeated trustee to that position.
The Ohio Supreme Court found that the replacement trustee was unlawfully holding the office of township trustee for two reasons. First, the Ohio Supreme Court found that trustee position was not vacant. While an office would be vacant if a township officer were absent for 90 days, as was the case here, the statute governing trustee absences specifically exempts active military duty from this provision.
Second, the Ohio Supreme Court found that the declaration of vacancy and the appointment of the replacement trustee were without legal effect because they were made at a meeting held in violation of Ohio’s Open Meetings Act. Specifically, the Open Meetings Act requires at least 24 hours’ advance notice of a special meeting except in the case of an emergency requiring immediate official action. While public bodies have considerable discretion to determine what constitutes an emergency, the December 30, 2015 meeting ended with no suggestion of an emergency, let alone one that would compel another meeting in less than 24 hours.
This case serves as a reminder that R.C. 121.22 is to be liberally construed in strict compliance with the Open Meetings Act. And, while this was not a school law case, we remind our school law clients that R.C. 3313.16 mandates that “[a] special meeting of a board of education may be called by the president or treasurer thereof or by any two members, by serving a written notice of the time and place of such meeting upon each member of the board at least two days prior to the date of such meeting” – regardless of whether the special meeting is an emergency.
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.