Relationships. Commitment. Results.

icon Careers

Category: Public Entities

That’s an Expensive Text! Cincinnati Settles Lawsuit Over Sunshine Law Violation


April 4, 2019

Ben ChojnackiThe Cincinnati Enquirer is reporting that the city of Cincinnati has agreed to settle a public records lawsuit arising out of a text chain. The text chain is among five Cincinnati City Council members where the public officials discussed public business. It is well-settled law that discussions by a majority of the members of a public body, which take place in emails, texts or tweets, constitute a public meeting [White v. King, 147 Ohio St.3d 74, 2016-Ohio-2770 (2016)]. Therefore, the council members’ text chain violated Ohio’s Open Meetings Act. Further complicating the matter, one council member deleted his texts from his phone, thereby creating a separate violation of Ohio’s Public Records Act.

The settlement calls for the city to pay $1,000 as a statutory penalty for the public meetings violation, $10,000 for the deleted text messages and (remarkably) $90,0000 in attorney fees related to the lawsuit.

Cincinnati’s settlement of this case should serve as a reminder to public officials that texts, tweets or emails can be a public meeting, and they must conduct themselves accordingly. Furthermore, the case should serve as a reminder that when such violations occur, the public can be on the hook for a hefty legal bill.

Ben Chojnacki is an attorney with Walter | Haverfield’s public law group who counsels municipalities, public entities and private corporations on all aspects of public law.  He can be reached at bchojnacki@walterhav.com or at 216-619-7850.

FCC Small Cell Rules: What Ohio Townships Need to Know Now


January 30, 2019

Managing Vague and Overly Broad Public Records Requests


November 30, 2018

In Ohio, public agencies are required to make many of their working documents available for public inspection or copying upon request. The Ohio Public Records Act makes it clear that, with few exceptions, the public records process must be both transparent and timely. Public agencies are frequently asked to balance their limited resources with their duties under the law. But when a public records request arrives that seems vague or unreasonable, public agencies need to know their rights as well as their obligations.

Under Ohio law, if a public agency cannot respond to a request because it is too broad or vague, they must notify the requester and give them a chance to revise the request before denying it. But what happens if the requester doesn’t know the document they’re looking for? A simple and effective way to help them narrow down their search is to provide them with a copy of the public agency’s Records Retention Schedule, or RC2 form. The RC2 should show exactly what categories of records are kept and the length for which they are kept. By law, all public agencies are required to have a master list of the public records they maintain, as well as how long they keep them before disposal.

When requests arrive that are worded so broadly or vaguely that there’s no way to reconcile them, a timely and clear response to the requester will go a long way. That will establish a record that the agency met its obligation to notify the requester. Often some requests arrive that are multi-layered and contain multiple sub-parts. It may not be possible to write out all the agency’s questions and requests for clarifications within a reasonable time period. But even a general notice, coupled with a request for clarification to the requester, shows that the public agency is acting in good faith and working toward a version of the request that it can fulfill.

Case law suggests that public records requests are not invalid just because they ask for a large volume of documents. At the same time, courts recognize that larger requests justify a longer response time. The earlier the agency can determine how reasonable a request is, the more options it will have for how to respond or defend its decision to deny the request. Public records training sessions with staff members who may be locating responsive documents will reduce the risk of internal confusion and delay.

Keeping these tips in mind when responding to a request will help ensure you can get responsive documents in the hands of the requester without straining your resources. Be sure to discuss specific concerns about public records requests with your agency’s legal counsel.

John Mills is an attorney at Walter | Haverfield who has extensive experience with public records requests and works with our firm’s Public Law and Education Law practice groups. He can be reached at jmills@walterhav.com or at 216-619-7852.

Walter | Haverfield attorney in popular Serial podcast


Sara Fagnilli, an attorney in the firm’s Public Law group, is in Serial, a podcast that shares stories from inside the Cuyahoga County courthouse during its third season. Fagnilli was the special prosecutor in the controversial case of Euclid resident, Erimius Spencer. The details of Spencer’s case, Fagnilli’s role in it and the outcome are all explained in episode seven.

Ohio Political Subdivisions Must Adopt Credit Card Use Policies by February 2019


October 31, 2018

Aimee LaneMany political subdivisions in Ohio have credit card use policies to ensure that credit card accounts are only used for authorized purchases and to establish procedures for the issuance, management, use, and cancellation of credit card accounts. These policies will need to be reviewed and updated to comply with a new Ohio law (House Bill 312) that became effective this month and which is aimed at fighting credit card abuse in Ohio’s local governments. The main provisions of the bill are outlined below:

 

  • By February 2, 2019, the legislative authority of political subdivisions that hold credit card accounts must adopt a written policy for the use of credit card accounts.
  • The credit card use policy must include provisions addressing the following:
    • The officers or positions authorized to use a credit card account.
    • The types of expenses for which a credit card account may be used.
    • The procedures for the acquisition, use, and management of a credit card account and presentation instruments related to the account including cards and checks.
    • The procedures for submitting itemized receipts to the fiscal officer or the fiscal officer’s designee.
    • The procedure for credit card issuance, reissuance, cancellation, and the process for reporting lost or stolen credit cards.
    • The political subdivision’s credit card account’s maximum credit limit or limits.
    • The actions or omissions that qualify as misuse of a credit card account.
    • The name of the political subdivision must appear on each presentation instrument related to the account, including cards and checks.
  • If the fiscal officer does not retain general possession and control of the credit card account, then the legislative authority must appoint a compliance officer. The fiscal officer or compliance officer and the legislative authority must, on a quarterly basis, review the number of cards and accounts issued, the number of active cards and accounts issued, and the cards’ and accounts’ expiration dates and credit limits.
  • The fiscal officer must annually report to the legislative authority all rewards received based on the use of the credit card.
  • An officer or employee “is liable in person” and upon any bond the officer or employee has given to the political subdivision to reimburse the treasury for any amount for which he/she fails to provide itemized receipts as required by the credit card use policy.
  • Use of a credit card for expenses not authorized by the legislative authority constitutes misuse of a credit card account, and knowingly making unauthorized purchases is illegal.
  • The new law expressly prohibits the “possession or use of a debit card account” except for law enforcement purposes; however, this prohibition does not apply to debit card accounts related to the receipt of grant moneys.
  • These requirements apply to the following governmental entities: the legislative authority of a political subdivision; a board of township trustees; a board of park commissioners of a township park district; a legislative authority of a municipal corporation; supervisors of a soil and water conservation district; a board of park commissioners; a board of directors of a county agricultural society or an independent agricultural society; a board of education of any school district; the governing authority of a community school; the government body of a STEM school; the board of trustees of a college-preparatory boarding school; a board of library trustees; a board of trustees of a regional water and sewer district.
  • In addition to the foregoing, the law permits the state auditor to publish the financial reports filed by local governments so that they are readily available to the public.

While many political subdivisions already have credit card use policies, it is important to review your policy to make sure it complies with the requirements of the new law. Also, talk to your fiscal officer, finance director or treasurer to develop a plan for adopting a credit card use policy and implementing the review and reporting requirements as described above.

Aimee W. Lane is a partner in the Public Law practice group of Walter | Haverfield providing general and special counsel services to municipalities. She is currently the law director of the Village of Moreland Hills and the zoning solicitor of the Village of Put-in-Bay. For more information about this article, please contact Aimee at 216-928-2985, alane@walterhav.com.

Free Speech Rights & Public Meetings: How One Man’s Case Got the Attention of the U.S. Supreme Court


October 20, 2018

Sara FagnilliIt’s a U.S. Supreme Court decision that city and county council members should know. Walter | Haverfield’s Sara Fagnilli explains how the case pitted First Amendment free speech rights against the right of a local legislative body to control its meetings in Ohio Township News.

Appeals Court Holds Private Property Owner Cannot Obtain Injunction to Stop Eminent Domain Lawsuit


Ben ChojnackiMuch of eminent domain litigation focuses on disputes over property valuation. Generally, these disputes are resolved by the parties submitting expert testimony regarding valuation, followed by a jury deciding what constitutes “just compensation” for property taken and, if necessary, any residual damage to the private property not needed for the public project.

Recently, however, the 11th District Court of Appeals published an opinion in a case where a private property owner took a different approach to challenging valuation.

In Lawnfield Properties v. City of Mentor, the City of Mentor needed to “take” a portion of land owned by Lawnfield Properties for a road widening project. The City secured an appraisal of Lawnfield’s land and provided it to Lawnfield along with a “good faith offer” to acquire Lawnfield’s land. Lawnfield rejected the City’s offer, taking the position that the City’s offer failed to compensate them for residual damage to their property. Specifically, Lawnfield argued that the City’s offer failed to compensate them for the relocation of a sign, the loss of parking spaces in a parking lot, the loss of a curb cut, and a temporary loss of the outdoor patio and swimming pool.

After Lawnfield rejected the City’s offer, the City filed a lawsuit in Lake County Probate Court to appropriate the property. Lawnfield responded by filing a lawsuit in Lake County Common Pleas Court. Lawnfield wanted the court to issue an injunction prohibiting the City from litigating the appropriation case until the City obtained an amended appraisal that accounted for the residual damage to Lawnfield’s property. Lawnfield also sued the City under a theory that it was acting in bad faith by failing to provide a good faith offer that accounted for the residual damage to the property.

The City asked the Common Pleas Court to dismiss Lawnfield’s case. The City argued that Lawnfield’s injunction action was merely a challenge to the city’s valuation method, not grounds for a separate injunction action. With respect to the bad faith action, the City argued that its appraiser determined that there was no damage to the residue of Lawnfield’s property, and as such, the City could not have acted in bad faith.

The trial court granted the City’s motion to dismiss. Lawnfield appealed the case to the Court of Appeals. Then, the 11th District affirmed the trial court’s decision, finding that probate courts have jurisdiction over challenges to the methodology used in determining the amount of compensation payable to a private property owner in an eminent domain action.

Lawnfield is significant because it makes clear that, although there are procedural and substantive defenses available in eminent domain actions, a challenge to an appropriating authority’s valuation methodology ultimately must be decided by a jury in the probate court.

Walter | Haverfield represents both appropriating agencies and private property owners in eminent domain litigation. If you need assistance with appropriating private property for a public project, or if your private property is being taken for a public project, the attorneys in Walter | Haverfield’s public law group are available to offer assistance.

Ben Chojnacki is an attorney with Walter | Haverfield’s public law group.  He can be reached at bchojnacki@walterhav.com or at 216-619-7850.

Appellate Court Hears Cities’ Challenge to Central Tax Filing for Business Income


September 30, 2018

Walter | Haverfield’s Darrell Clay described how Ohio municipalities have constitutional home rule authority to levy taxes, in an article published in The Hannah Report.

Scuffles emerge over water


July 15, 2018

Walter | Haverfield attorney Todd Hunt offers his perspective in Crain’s Cleveland Business about an Ohio bill aimed at curtailing what some cities consider price gouging over water and sewer service rates.

Cities, carriers strike compromise over 5G technology


May 24, 2018

Walter | Haverfield partner Bill Hanna applauded the recent passage of legislation in Ohio, which permits some municipal authority over small-cell telecommunications equipment installations along main streets and in residential neighborhoods, in an article in Crain’s Cleveland Business.

Planning Best Practices as a Catalyst for Economic Development


May 14, 2018

Economic development is often associated with TIFs, CRAs, JEDDs, and the alphabet soup of other acronyms used by local governments to convince developers to choose their community as the site for new development. But establishing intuitive, user-friendly land use and development policies and procedures is an equally important and often overlooked method of attracting and retaining development. Local governments should consider adopting some of the following best practices:

Well-trained planning and zoning staff and planning commission

Planning and zoning staff may not always have the training in land use planning and zoning to effectively and efficiently serve as the community’s point person when a developer knocks on the door. Also, planning commissions are often made up of civic-minded residents, but those citizens rarely have backgrounds in real estate, law, or another planning-related profession. Planning staff, planning commissions and other boards and commissions should be well-trained and able to efficiently guide the developer through the approval process.

User-friendly forms

Often, communities utilize a single form for variances, rezoning, building permits, and a variety of other purposes. Although building and planning staff may understand the form, forms should be intuitive to developers and property owners.

Zoning code provisions that provide a degree of certainty

It is no secret that developers like certainty. Developers do not like when they cannot determine whether the plan would be permitted under a zoning code and other ordinances, or when the process required to obtain approval is unclear. If that happens, then developers may choose an alternative, lower risk community that provides more certainty in their ordinances.

Jessica Trivisonno is an attorney in the Public Law group at Walter | Haverfield. She can be reached at jtrivisonno@walterhav.com or at 216-619-7870.

For more information on policies and procedures that encourage development, Jessica Trivisonno and her colleague, Todd Hunt are presenting “Encouraging Economic Development Through Planning” at the Northeast Ohio Planning and Zoning Workshop on June 8, 2018 in Conneaut, Ohio. The workshop is open and sessions are designed for local officials, planning commission and board of zoning appeals members, community development professionals, professional planners, attorneys, architects and other interested citizens. Register here.

Governor Signs Ohio’s New Small Cell Facilities Law, Takes Effect July 31, 2018


May 4, 2018

Todd HuntOn Tuesday, May 2, 2018, Ohio Governor John Kasich signed Substitute House Bill 478, amending Ohio’s right-of-way statute to pave the way for small cell installations associated with increased demand for high-speed, high-capacity wireless communications. The wireless industry will install millions of small cells nationwide as it moves to deploy 5G technology. Sub. H.B. 478 was passed by the Ohio Senate on April 11, 2018 and the House concurred in the Senate’s version the same day.andnbsp;

Based upon the Governor’s signature on May 2, 2018, Sub. H.B. 478 will take effect on July 31, 2018 (90 days later).

Sub. H.B. 478 makes substantial and wide-ranging modifications to the law governing small cell wireless installations in the municipal right
of way. Cities and villages should be mindful of the July 31, 2018 effective date as they prepare for the applications that are to be expected. For an overview of what to expect and how to prepare, please see our article of April 18, 2018, “Ohio Legislature Passes Small Cell Amendments.”