Subscribe to School Law Newsletter
Close Window

Individuals Challenging Executive Session Motions Have the Burden of Proving That Executive Session Reasons Were Unreasonable

In the case of State ex rel. Hicks v. Clermont Cty. Bd. of Commrs., 2022-Ohio-4237, the Ohio Supreme Court held that individuals alleging violations of the Open Meetings Act (“OMA”) have the burden of proving such violations and that not all reasonable topics contained in an R.C. 121.22(G) executive session resolution must be discussed in executive session.

In this case, an individual argued that the county board of commissioners should have the burden of producing evidence that the board did not violate the OMA, as well as that the board violated the OMA by not actually discussing all the topics included in motions for executive session while recessed in executive session. In response, the county board of commissioners argued that the burden of proving OMA violations rests with the individual alleging such violations and, in any event, the board was not required to discuss all the reasonable topics included in motions for executive session while recessed in executive session. The Ohio Supreme Court agreed with the county board of commissioners.

In support of its burden of proof decision, the Ohio Supreme Court explained that, if the county board of commissioners held the burden of producing evidence, it “would allow for a lawsuit any time a public body enters executive session, even when there is no evidence of a violation of the OMA.” 2022-Ohio-4237 at ¶ 14.

In support of its executive session decision, the Ohio Supreme Court explained that there is no “rule that public bodies may not include in their motions to enter executive session all the topics they reasonably might discuss.” 2022-Ohio-4237 at ¶ 33. The Ohio Supreme Court further explained that:

R.C. 121.22 contains no such rule, and we decline to impose such a rule. The statute never says that a public body must discuss every single topic that it includes in its motion to enter executive session. It simply states that “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 of any of [the matters listed in R.C. 121.22(G)].” R.C. 121.22(G). In other words, the board may not discuss any additional topics that are not included in its motion to enter executive session. R.C. 121.22(G)(1) then says: “If a public body holds an executive session pursuant to division (G)(1) of this section, the motion and vote to hold that executive session 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.” So according to the statute, before executive session begins, the public body must state the intended statutory purpose or purposes of the executive session.

But R.C. 121.22 never says that a public body must discuss every topic that it includes in its motion to enter executive session. The public body might not know before it enters executive session exactly what will be discussed during the session. For example, it may know that it will discuss whether to discipline an employee, but it might not know how the employee should be disciplined or whether the employee should be demoted, dismissed, or have his pay cut. So what is the public body to do? It could simply move to consider disciplining the employee. But if a member of the public body wanted to discuss dismissing the employee instead, or cutting the employee’s pay, the public body could not do so because those topics were not included in the motion to enter executive session. And under the rule advocated by Hicks, the public body also could not safely include the topics of dismissal, demotion, or compensation in its motion because if none of the members suggested dismissal or demotion during the session, then the board would be subject to a lawsuit.

A public body must be able to introduce a motion that includes all the topics it might reasonably discuss during an executive session. There is no rule to the contrary in R.C. 121.22, and there is no reason for this court to impose a rule that is not contained in the statute.

2022-Ohio-4237 at ¶¶ 34-36.

WARNING: In this case, there was no proof that any executive session motion included any topics that might not reasonably be discussed during an executive session. As a result, this case does not hold that a public entity can simply list every executive session reason outlined in R.C. 121.22 when the public body knows it will not be discussing the same.

To read this case, click here.

Authors: Matthew John Markling and the McGown & Markling Team.

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.


Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.