On December 7, 2016, the Ohio General Assembly passed Substitute Senate Bill 331 (SB 331), which significantly impacts a municipality’s ability to regulate the placement, construction, modification, and maintenance of “small cell” wireless facilities in the public right of way. As originally introduced, SB 331 only sought to regulate dog sales by pet stores and retailers. But as the Generally Assembly went into its lame duck session, additional provisions – completely unrelated to the original subject – were inserted into the legislation, including amendments to Ohio Revised Code Chapter 4939 intended to provide expedited access to municipal right-of-way (ROW) for small cell wireless providers. Governor Kasich signed the bill on December 19, 2016, and it will take effect in 90 days.

SB 331 requires licensed wireless providers and franchised cable operators to go through the motions of requesting consent to take the following actions in the ROW with respect to small cell wireless antennae and equipment (all of which are deemed “permitted uses” anywhere in the ROW regardless of any local zoning provision):

• Attach an antenna system to an existing monopole, light pole, traffic signal, sign pole, or utility pole in the ROW (unless the utility pole is owned by a municipal electric utility); or replace or modify small cell antennae on such structure;
• Locate small cell wireless equipment for multiple wireless service providers on an existing pole;
• Replace or modify an existing antenna or associated equipment; or
• Construct a new pole or modify or replace an existing pole associated with a small cell antenna or equipment.

Note that the municipality must act on the application within 90 days of receipt, and if it fails to do so, the request is deemed approved. The 90-day period may be tolled by agreement between the municipality and the applicant; by the municipality if the application is incomplete (but be careful to follow the additional timelines prescribed in R.C. 4939.035); or by the municipality for up to an additional 90 days in the case of an “extraordinary number” of wireless facilities contained in pending requests (multiple antennae and facilities may be requested simultaneously). Be aware, however, that the even more accelerated 60-day timeframe for action under Section 6409 of the federal Spectrum Act still applies to “eligible facilities requests” as defined therein (R.C. 4939.039). The amount a municipality can charge to process a “request for consent” may not exceed $250.00 per antennae or wireless facility.

In addition, SB 331 greatly restricts the scope of review for municipalities considering small cell requests. The legislation prohibits cities and villages from:

• Applying zoning regulations to small cell wireless applications;
• Evaluating the business decisions of the applicant, the need for the antenna or equipment, or the availability of alternative locations;
• Precluding placement of equipment in a residential area or within a specific distance from a residence or other structure;
• Demanding the removal of existing wireless support structures or equipment as a condition of approval of a new application;
• Limiting the duration of any permit;
• Imposing separation or spacing requirements between antennae and equipment;
• Enacting any moratorium on the filing, consideration or approval of applications; or
• Entering into exclusive arrangements for the right to attach to a municipal corporation’s poles or other delineated support structures.

With respect to the last item above, the bill goes so far as to require that a municipality may not refuse to provide access to its own wireless support structures, poles or facilities in the ROW, if a wireless provider wishes to use those structures or poles. For such use, a municipality may charge no more than $200 per year per attachment (to its own ROW poles and facilities) – regardless of whether this amount covers the municipality’s costs.

The telecommunications industry sought these changes, in part, to expedite approvals for the planned installation of small cell facilities needed to create faster, higher capacity 5G networks. These new ORC provisions go further than federal law in preempting local review. SB 331 offends principles of Home Rule and violates the single-subject rule. Further, it disregards a municipality’s ownership interest, on behalf of its residents and the public, in its ROW and its structures within the ROW. Nevertheless, Ohio cities and villages should review the revisions to ORC Chapter 4939 as well as existing federal law applicable to small cell wireless facilities. It is all but certain that Ohio municipalities will see a dramatic increase in the number of applications for small cell facilities, and they should understand their authority to review those applications, along with the limits of that authority.

William Hanna is a partner, and Brendan Healy is an associate in the firm’s Public Law Services Group.

In State ex. rel. Cincinnati Enquirer, et al. v. Deters, Pros. Attorney,
released on December 20, 2016, the Ohio Supreme Court was faced with
several important issues raised by the use by police departments of
body-camera video. The Court determined that, assuming such video
constitutes a “public record,” public bodies are entitled to a
reasonable amount of time to review the video for needed redactions
before the video must be released. This case is a reminder that public
bodies must be prepared for the age of ubiquitous video, which is upon
us.

Numerous Cincinnati media outlets requested body-camera video
from the Hamilton County Prosecutor’s Office. The body-camera video had
captured the shooting of a motorist by a University of Cincinnati police
officer subsequent to a traffic stop. Three of the media outlets had
not actually requested the body-camera video from the prosecutor’s
office, but had requested it from other sources (police departments).
The Court dismissed these claims because these relators had not
requested the video from the prosecutor’s office (the sole respondent in
the mandamus action).

In initially refusing to release the video,
the prosecutor’s office had asserted that body-camera video should not
be released because such release could jeopardize a fair trial. The
prosecutor’s office also argued that the videos could reveal
confidential investigatory techniques or procedures, and/or constituted
investigatory work-product. It was also argued that the videos were
either a confidential law-enforcement investigatory record or a
trial-preparation record, and therefore exempt from release. Ultimately,
because the video was released, the Court did not need to determine if
any of the asserted grounds for refusing to the release of the video was
valid. The Court assumed, without deciding the issue, that a
body-camera video is a public record.

Instead, the Court denied
the writ because the Court determined that, even if the requested
body-camera video is a public record, the purpose of a mandamus action
is to compel the release of records. Because the video had been released
by the prosecutor’s office two days after the action was filed, the
mandamus action had been rendered moot.

In addressing whether the
statutory penalty and legal fees should be paid to the relators, the
Court noted that “***the prosecutor was entitled to review the video to
determine whether any redaction was necessary and produced the
body-camera video six business days after it was initially received by
his office***.” The Court concluded this was a reasonable period of
time. Consequently, the relators were not entitled to statutory damages
or attorney fees.

Public bodies, and law enforcement agencies in
particular, should take note of this case and be prepared to respond to
public records requests for body-camera video. Public bodies may need to
redact portions of the video via pixelating or otherwise obscuring the
images of persons or things that are shown in the video. Alternatively,
the public body may need to be prepared to argue why the entire video
should not be released. A thorough review of both police body-camera
policy and public record policy is advisable to determine if the issues
raised by this case have been adequately addressed. It is also advisable
to develop a plan for redacting video as most police departments do not
have this capacity in-house.

Stephen Byron is a partner, and Susan Bungard is an associate in the firm’s Public Law Services group.

By William R. Hanna, Aimee W. Lane, and Jessica Trivisonno

Legislation that will significantly expand the remedies available to requesters of public records will take effect on September 28, 2016. The effect on local governments responding to public records requests is not yet clear. S.B. 321 was passed unanimously on May 25, 2016.

Beginning September 28, 2016, individuals may dispute the delay or denial of a public records request in the Ohio Court of Claims. The Court of Claims process is the first of its kind in the nation and is intended to make the process of disputing public records request denials or delays simple and affordable.

New Court of Claims Dispute Resolution Process

An individual may file a complaint with the Court of Claims by filing the complaint on a form that will be available online starting on September 28th and paying a fee of $25. The complaint must be filed either in the Court of Claims or in the court of common pleas of the county where the public office from which records have been requested is located.

In most cases, the dispute will be referred to mediation. However, if the parties are unable to mediate the dispute to a resolution, a special master, currently former Assistant Attorney General Jeff Clark, will consider the dispute. Public offices must respond to the complaint within 10 business days from the date mediation is terminated. Each party may attach affidavits in support of its complaint or response, but may not conduct discovery. The special master will issue a report and a recommendation based on the relevant law at the time of filing.

If the special master’s recommendation is approved by the Court of Claims, then the recommendation becomes binding on the parties. Either party may object to the recommendation. Upon objection, the Court of Claims will reconsider the recommendation before making a final order. Either party may appeal the final order of the Court of Claims to the state appellate court of the county where the public office is located.

A prevailing complainant is entitled to receive copies of the public record, as well as recover the $25 filing fee and other costs associated with the action. Typically, the complainant may not recover attorney’s fees.

(Please see the chart below for a more detailed explanation of the Court of Claims process.)

Auditor and Ohio Attorney General Dispute Services Discontinued

Prior to the introduction of the new Court of Claims process, the Ohio Auditor and the Ohio Attorney General established services to address public records disputes. Neither dispute resolution service provided a legally binding decision to the parties, but both served as affordable alternatives to a mandamus action. The Ohio Attorney General and the Auditor have discontinued such services given the new Court of Claims process.

Mandamus Action Still Available, but Public Office Can Recover if Frivolous

Individuals are still afforded the option to dispute a public records denial or delay by filing a writ of mandamus to compel the public office to release the records. Such action is often expensive and time-intensive, but also allows the parties to engage in discovery.

Further, a court may compel the relator to pay the public office’s court costs, expenses, and reasonable attorney’s fees if the relator files a frivolous mandamus action.

Additional Changes to Ohio Public Records Law

S.B. 321 also made the following changes to Ohio’s public records law:

• A relator may be awarded reasonable attorney’s fees if the court determines the public office acted in bad faith, but the law precludes discovery on the issue of bad faith.
• If a writ is not issued and the court determines that the mandamus action was frivolous conduct, the court may award the public office all court costs, expenses, and reasonable attorney’s fees.
• A relator may be awarded court costs if the records are provided in bad faith after the individual initiates a mandamus action, but before the court issues an order on the mandamus action. Prior law required awarding court costs to relator if the court orders the public office to comply with the public records law.
• If a public office provides records on a free, accessible, searchable website, then the public office can limit the number of records it will digitally deliver to 10 records per month. However, a public office must provide records if not available online or if the requestor certifies that the records will be used for a non-commercial purpose. Prior law only limited the number of records transmitted by U.S. mail to 10 records per month.
• Infrastructure records of a private entity may be exempt from disclosure. This exemption applies if the record is accompanied by a written statement affirming the expectation of protection from disclosure.
• The defendant, counsel, or agent of a defendant in a criminal action making a request for public records related to the case must serve a copy of the request to the prosecutor, and the public records request is considered a demand for discovery pursuant to the Criminal Rules unless a contrary intent is indicated.
• A private, non-profit institution of higher education shall not be held liable for any claim that arises due to disclosure of public records, including a breach of confidentiality claim, as a result of their disclosure of a public record.

Conclusion

Municipalities, school districts, and other entities subject to Ohio’s public records laws should expect individuals to utilize the new process to more readily dispute a denial or delay of a public records request. Entities subject to Ohio’s public records law should review their public records policy for consistency with the Ohio laws, and familiarize themselves with the new Court of Claims dispute resolution process and the complaint form when it goes live on September 28th.

If you have any questions about this change in the law, please contact a member of Walter | Haverfield’s Public Law group.

William R. Hanna and Aimee W. Lane are partners in the Public Law Services Group of the Cleveland-based law firm of Walter | Haverfield LLP.

On Tuesday, the Ohio Supreme Court held that an email exchange between a majority of school board members may qualify as a meeting under Ohio’s Open Meetings Act. The plaintiff, a board member who conducted an independent investigation into alleged improper expenditures by two athletic directors within the school district, voted against a proposed board policy that would have limited similar future investigations. A newspaper editorial praised the plaintiff – the dissenting board member.

Once the editorial was published, and at the direction of the board president, plaintiff’s four other colleagues on the board and several district staff members collaborated on a formal response to the editorial. However, they did so by email and without plaintiff’s involvement. The board president submitted the final response to the paper, signing it in his official capacity.

The plaintiff then sued the board and its individual members, alleging that the email collaboration violated the Open Meetings Act, which requires board meetings to be open to the public. In response, the board publicly ratified its previous response to the paper and denied any violations. Both the trial and appellate courts held for the defendants, finding that sporadic emails do not constitute a meeting because there was no rule or resolution pending before the board.

The Ohio Supreme Court disagreed. The Court explained 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 email, text, tweet or other form of communication. The Court emphasized that categorically excluding email communications from the Open Meetings Act would subvert the Act’s purpose. The Court also noted that by ratifying its response to the paper, the board retroactively made the previous discussions a matter of public business under the law.

Aside from granting plaintiff the ability to proceed with his lawsuit, this decision also cautions public officials to avoid prearranged public business discussions in any medium, especially if the communications involve a quorum. By conducting such discussions, a public body risks violating the Open Meetings Act. Such discussions should wait until an open meeting can be convened.

If you have any questions about this decision, please contact a member of Walter | Haverfield’sandnbsp;Public Law group.

By Benjamin G. Chojnacki and Stephen L. Byron.andnbsp;

On January 26, 2016, the Ohio Supreme Court decided State ex rel. Cornerstone Developers, Ltd. v. Greene Cty. Bd. of Elections,
Slip Opinion No. 2016-Ohio-313. In the case, the Court ordered the
Greene County Board of Elections to remove a tax levy from the March
2016 ballot because the Sugarcreek Township Board of Trustees failed to
follow the statutory procedure for placing the question of a tax levy on
the ballot.

Chapter 5705 of the Ohio Revised Code establishes
the procedure for placing a statutory tax levy on the ballot. First, a
taxing authority must pass a “Resolution of Necessity” asking the county
auditor to certify the current tax valuation of the political
subdivision. After receiving the auditor’s certification, a taxing
authority must pass a separate “Resolution to Proceed” submitting the
question of the tax to the voters. The taxing authority must certify the
“Resolution to Proceed” to the county board of elections at least
ninety (90) days prior to an election.

Instead of following the
statutory procedure, Sugarcreek Township’s Board of Trustees passed
legislation making a finding that the taxes that ‘may be raised within
the 10 mill limitation will be insufficient’ and declared the necessity
for an additional levy. The Trustees transmitted this legislation to the
county board of elections and the tax levy was placed on the ballot.

Cornerstone
Developers challenged the tax levy’s placement on the ballot because
the Board of Trustees failed to pass a Resolution to Proceed and failed
to certify such resolution to the county board of elections at least
ninety days prior to the election. The Ohio Supreme Court recognized
this to be a fatal flaw, and ordered the tax levy removed from the March
2016 ballot.

Cornerstone Developers
is significant because it demonstrates that omnibus tax levy
legislation is insufficient to satisfy Chapter 5705. Instead, a taxing
authority must pass both a “Resolution of Necessity” and a “Resolution
to Proceed,” then timely certify the “Resolution to Proceed” to the
county board of elections at least ninety (90) days prior to the
election.

If you have questions about Cornerstone Developers,
or any other public law matters, please contact Benjamin G. Chojnacki,
Stephen L. Byron or any of the attorneys in Walter | Haverfield’s Public
Law Group.

Across the nation and in Northeast Ohio, claims of unlawful shootings and excessive force are making headlines in alarmingly increasing numbers, resulting in heightened scrutiny of police policies and protocols related to the training of law enforcement officers and the use of force. Suddenly, Mayors, Police Chiefs and other city officials are finding themselves having to spend more time addressing public relations issues arising from such allegations, which can very quickly make a police department the focus of local, state and national news, if not subject to a Department of Justice investigation.

Legally speaking, when a claim of excessive force is asserted, the priority is to minimize, if not negate entirely, a city’s financial liability. Beyond money, however, the police department’s credibility and goodwill with the local community are at stake. Without appropriate action before an allegation of excessive occurs, the result could be a complete public relations nightmare.

The key to avoiding such a nightmare is proper planning. When a claim of excessive force is made, there can be demands placed on the police department and City Hall from a number of sources: TV cameras will be running; families will be demanding answers; news organizations will be making public records requests; and unions will be demanding fair treatment of the officers involved. At that point, public officials are so inundated that there is very little time to do anything but react; proactively managing the situation becomes difficult, if not impossible, without appropriate measures having been put into place long before the allegation arose.

There are things that can be done, however, to prepare a City and police force for such allegations, including:

Finally, consideration should be given to creating a joint task force to make recommendations if an excessive force allegation occurs. This task force should be comprised of public officials such as the Mayor, Safety-Service Director, Police Chief, and/or Council members, as well as the local union leadership and non-profit and private sector community leaders. It is important to create the task force before an allegation of excessive force is made to ensure that there is ample time to outline not only the scope of the authority of the task force, but also how the task force will implement that authority. The use of such a task force can be controversial, but if comprised of the right individuals, it can be effective in fostering and, if necessary, repairing the relationship between the police department and the community.

Locally, we don’t have to look far to see the real world impact of charges of excessive force. Cities such as Cleveland and Cincinnati are currently under increased scrutiny due to claims of unlawful shootings and excessive force. Even smaller cities and municipalities, however, can be subject to such claims as it only takes one incident to put a department in the spotlight. If that happens, a huge amount of time and resources will be required to address the immediate aftermath, but once the dust settles and things calm down, the ramifications of the allegation remain: lawsuits may be filed, criminal investigations and trials may occur, jobs may be lost, and reputations may be irreversibly damaged. Appropriate planning and training not only may minimize the impact if an excessive force allegation is made; they may prevent such an allegation from occurring in the first place.

Contact: Susan Keating Anderson

Byandnbsp;Stephen L. Byron,andnbsp;Aimee W. Lane, andandnbsp;Ellen R. Kirtner, Law Clerk

On Thursday, June 18, 2015, the United States Supreme Court announced its decision inandnbsp;Reed v. Town of Gilbert. Inandnbsp;Reed, the court held that a municipal ordinance in Gilbert, Arizona is in violation of the First Amendment. The ordinance allowed for varying restrictions on sign content based on the particular message on the sign. Although the ordinance did not directly regulate the messages on signs, the ordinance was held to be content-based because varying rules were imposed based on a sign’s message.

Good News Community Church challenged the Gilbert ordinance. The church had been cited twice under the ordinance for posting temporary signs which contained information about the time and location of the church’s services. The church posted more signs than were permitted under the ordinance, the signs were posted for a longer time than was permitted under the ordinance, and the signs failed to include the dates of events; all of these conditions violated the town’s sign ordinance.

The town’s ordinance had defined the church’s signs as “temporary directional” signs, which were one of the most tightly regulated types of signs under the ordinance. The ordinance limited the number, location, and length of time these signs could be displayed. The town imposed less stringent restrictions on other types of signs, such as political signs and ideological signs.

The U.S. Supreme Court reversed the Ninth Circuit Court of Appeals decision, which held that the ordinance was content-neutral, and thus constitutional. The Supreme Court held that while the ordinance did not place any limitations on the specific messages written on signs, it did regulate signs based upon the messages that were conveyed. For example: “temporary directional signs” are signs which direct the public to a “qualifying event” (such as a church service), “political signs” are signs “designed to influence the outcome of an election,” and “ideological signs” are signs “communicating a message or ideas.”

The majority opinion of the Court stated that local governments could still regulate signs via content-neutral ordinances to address safety concerns and aesthetics. For example, the town could limit size, building materials, lighting, moving parts, or the location of signs, provided that the limitations apply to all signs equally, and the extent of regulation did not depend upon the message that the sign conveyed.

A concurring opinion noted that the majority opinion, while correctly striking down the Gilbert regulations, had drawn a bright-line rule which would subject many local ordinances to “strict scrutiny,” and that it was unlikely those ordinances would survive that higher standard of review. This outcome would subject numerous reasonable regulations to fatal challenges.

The Court’s decision inandnbsp;Gilbertandnbsp;serves as a reminder that drafting and implementing lawful sign regulations is a difficult task. Communities should revisit their regulations to determine whether the laws on the books will subject them to a constitutional challenge.

If you have any questions regarding the issues addressed in this Client Alert, please contact a member of Walter | Haverfield’sandnbsp;Public Law Services group.