In Tuesday’s much-anticipated decision, the Ohio Supreme Court held that an email exchange between a majority of board members may qualify as a meeting under Ohio’s Open Meeting Act. The plaintiff, a board member who conducted an independent inquiry into allegedly improper athletic expenditures, voted against a proposed board policy that would have limited similar future investigations. After a newspaper editorial praised the dissenting board member, his four colleagues collaborated on a formal response to the editorial, but did so by email and without his involvement. The board president submitted the final response to the paper, signing consent to its publication in his official capacity.
The plaintiff then sued the board and its individual members, alleging that the email collaboration violated the Open Meeting 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 against the plaintiff, finding that sporadic emails do not constitute a meeting, especially as no resolution was pending at the time.
The Ohio Supreme Court disagreed. A meeting, the Court explained, is any prearranged discussion and does not have to occur face to face. It can take place telephonically, by video conference, or electronically, by email, text, or tweet. Categorically excluding email communications from the Open Meetings Act, the Court emphasized, would subvert the Act’s purpose. Citing to case law from other states, the Court also noted that by ratifying its response, the board retroactively made the previous discussions a matter of public business under the law.
Aside from granting plaintiff permission to continue his suit, this decision also cautions Ohio board members to avoid prearranged public business discussions in any medium. Especially if the communications involve a quorum, the board risks violating Ohio law and should table the discussion until a formal session can be convened. Although the exact contours of this decision have yet to be clarified, for now it is better to be safe than sorry.