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Supreme Court of Ohio clarifies requirements for entering executive session; Places burden on plaintiff to demonstrate Open Meetings Act violation

Posted by Daniel R. Shisler | Jan 06, 2023 | 0 Comments

The Supreme Court of Ohio's recent decision in Hicks v. Clermont County Board of Commissioners is favorable to public bodies, such as boards of education.  The December 2022 opinion clarifies the requirements public bodies must meet for entering executive session, and holds that public bodies shall be presumed to have properly entered executive session absent any evidence of wrongdoing.  Thus, Hicks rejects the Twelfth Appellate District's burden-shifting framework and places the burden solely on a plaintiff to demonstrate a violation of the Open Meetings Act (OMA).

In Hicks, the Plaintiff sued the Clermont County Board of Commissioners, alleging that the Board violated the OMA on several occasions in 2017 by entering executive session after passing motions that included a “laundry list” of reasons for entering executive session rather than identifying specific issues it intended to discuss.  Under the evidentiary framework established by Twelfth District in Hardin v. Clermont County Board of Elections, the initial burden was placed on a plaintiff to demonstrate only that a meeting occurred and that the public was excluded.  The burden then shifts to the public body to demonstrate that the challenged executive sessions were convened for a proper reason.  The Hicks Plaintiff prevailed at the trial court and in the Twelfth District Court of Appeals because the Board members could not recall what was discussed during the challenged executive sessions, and thus failed to produce specific evidence of propriety.

The case advanced to the Supreme Court of Ohio, where the Court rejected the lower courts' application of the Hardin burden shifting framework.  The Court held that the Hardin framework exceeded the actual requirements of the OMA by essentially requiring public bodies to keep detailed records of discussions occurring in executive session to protect themselves against OMA challenges.  Finally, the Court held that setting forth a “laundry list” of topics in a motion to enter executive session is not prohibited by the OMA if a public body may reasonably discuss those topics.  Failure to discuss a listed topic is not an OMA violation.  However, the Court stated that discussion of a topic not included in a motion for entering executive session remains a violation.

Even with the clarity provided in the Hicks decision, public bodies must still enter executive session only for a permissible purpose.  Boards of education are encouraged to consult legal counsel when grounds for entering executive sessions are unclear.

About the Author

Daniel R. Shisler

Daniel Shisler's practice is devoted to advising boards of education on matters including board policy formation and compliance, general labor and employment/ personnel issues, employment discrimination, workers compensation, unemployment compensation, student/pupil personnel legal issues, residency issues, board policy, and ethics/conflict of interest issues. Daniel has experience representing boards of education in litigation in both state and federal courts regarding employment discrimination, employee discipline, termination and nonrenewal, statutory immunity issues, and student disciplinary appeals.


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