Virtual Open Meetings

[Dan OMalley]

Mark,

You're raising very legitimate concerns. Our law department has advised that the city does indeed have home rule authority on this issue. Subsections (b) and (c) of the adopted legislation address many of the issues you've pointed out.

As I stated at the January 6th council meeting, my intention is to repeal this ordinance or significantly amend it at the earliest opportunity because "emergency" or "special circumstances" are vague phrases. But the circumstances we find ourselves in now are clearly extraordinary.

The purpose of this change is to protect the health and welfare of our staff and the public. "Virtual" meetings (meetings held Zoom), while not preferred, by and large increase accessibility for the public and have resulted in increased public participation at our meetings. In addition to attending these meetings via Zoom, members of the public may also dial in by phone or submit public comment via e-mail, U.S. mail, or the city's e-comment feature.

[Mark Kindt]

My thanks to the President of City Council for his comments on this topic.

It is my hope that the public health issues abate soon and that our city government can return to its customary "in-person" deliberative processes in their ordinary course consistent with current Ohio law.

While "virtual" government may be the wave of future for us, it should not be evaluated and adopted without careful legal guidance and significant citizen input; for it necessarily impacts primary constitutional rights at both the federal and state levels.

May all be well and stay safe.

[Mark Kindt]

What Is A Meeting?

B. “Meeting”

1. Definition

"The Open Meetings Act requires members of a public body to take official action, conduct deliberations, and discuss the public business in an open meeting, unless the subject matter is specifically exempted by law. The Act defines a “meeting” as: (1) a prearranged gathering of (2) a majority of the members of a public body (3) for the purpose of discussing public business".

After looking at this issue for a week, I see no legal basis for the enactment of Ordinance No. 02 2022 under the Third Amended Charter or other statutory authority, the so called, "Home Rule" authority.

Separately, I will post the Attorney General's Office "2021 Sunshine Law Manual".

[Stan Austin]

the essential question in my mind is this--- is a virtual meeting an enhancement, an addition along with the normal public accessibility of a public meeting--- not a replacement

[Mark Kindt]

Stan, there are many ways to look at this and I have just begun to think across the breadth of that range.

One hypothetical example:

When a resident or non-resident loses property or property rights because of an adverse determination by the Board of Zoning Appeals made during a meeting held via Zoom is this an unconstitutional "taking"?

Open meetings protect important civil rights associated with due process and have long been associated with protecting those rights. Frankly, this is more important than ever.

There may be a future path to Zoom Government for the technologically-literate and the rest of us, but my guess is that that path will have a long and winding way through the court systems.

The current ordinance (No. 02 2022) as enacted is sort of a "lurch" in that direction, but as you read it, it seems that any "special circumstance" can close an open meeting and force it into a virtual (digital) environment limiting the time, manner, and place of the exercise of constitutionally protected rights of free speech.

It may all be well-intentioned, but that seems to be a rather dramatic change to what we all basically expect from government -- openness and transparency.

Topics long associated with my writings here.

[Mark Kindt]

Mark,

You're raising very legitimate concerns. Our law department has advised that the city does indeed have home rule authority on this issue. Subsections (b) and (c) of the adopted legislation address many of the issues you've pointed out.

As I stated at the January 6th council meeting, my intention is to repeal this ordinance or significantly amend it at the earliest opportunity because "emergency" or "special circumstances" are vague phrases. But the circumstances we find ourselves in now are clearly extraordinary.

The purpose of this change is to protect the health and welfare of our staff and the public. "Virtual" meetings (meetings held Zoom), while not preferred, by and large increase accessibility for the public and have resulted in increased public participation at our meetings. In addition to attending these meetings via Zoom, members of the public may also dial in by phone or submit public comment via e-mail, U.S. mail, or the city's e-comment feature.

While I may seem to be over-sensitive on the topic, I want to note that City Council appears to have made its appointment of the new Ward One councilperson in a manner that was not in compliance with the Ohio Open Meeting laws to the extent that it was conducted under the new virtual meetings ordinance (No. 02 2022). Until that ordinance is affirmed by a court, this appointment seems to be defective and council has a legal duty to proceed consistent with Ohio statutory law that has no present exemption for virtual proceedings.

[Mark Kindt]

For those Ohio cities, like Lakewood, that want to proceed under virtual open meeting ordinances, outside of Ohio open meeting laws, one proper avenue for them is to file suit to seek a declaratory judgment from an Ohio court on validity.

[Mark Kindt]

City of Fairview Park To Amend Charter For Virtual Meetings

If its city council approves, the City of Fairview Park will have a charter amendment on the May 3rd ballot.

The Third Amended Charter of the City of Lakewood clearly does not provide for the virtual ("Zoom") meetings that are currently being conducted pursuant to Ordinance No. 02 2022.

The City of Lakewood enjoys no temporary exemption from the Ohio Open Meetings laws as it did prior to June 30, 2021 related the Covid-19 pandemic.

The City of Lakewood enjoys no legal powers to enact municipal legislation in conflict with a law of general nature, such as the open meetings laws enacted by the Ohio legislature.

Nor can it amend its city charter to do so.

[Stan Austin]

So----- I can speed down Clifton at 80 mph and no laws apply?

[Mark Kindt]

Here's a better example in that context:

The city can pass an ordinance that residents don't have to provide proof of auto insurance during a Lakewood traffic stop.

Superficially, this appears to be within the scope of municipal legislative authority related to public safety under home rule.

It won't past muster, because the State has enacted general laws requiring proof of insurance, etc.

Other lawyers may disagree, that's how we make our livings, but Ohio has enacted open meeting laws that apply statewide to a wide variety of public bodies and neither Lakewood, nor Fairview Park can amend those laws by local ordinance or Charter amendment.

[Mark Kindt]

Virtual Meetings Continue

If you check the City website, you will see that the Board of Zoning Appeals is holding a "virtual" meeting on February 17th instead of an open public meeting.

If anybody knows the official reason for this, I would like to have a better sense of how this complies with the Open Meetings laws.

If it does.

[Mark Kindt]

Regardless of the legal merits of Ordinance No. 02 2022; for some people, including me, simply knowing that my words can be shut-down automatically -- muted -- by the person-in-charge is already a chilling effect on residents who might have legitimate reasons to question the activities or outcomes of appointed-citizen board and commissions.

[Dan OMalley]

Regardless of the legal merits of Ordinance No. 02 2022; for some people, including me, simply knowing that my words can be shut-down automatically -- muted -- by the person-in-charge is already a chilling effect on residents who might have legitimate reasons to question the activities or outcomes of appointed-citizen board and commissions.

For the record, we have never done this, save for during a series of pranks last year where people would yell or visually transmit obscenities to disrupt the meeting. In any event, disruption of the public’s business ruled out of order wouldn’t be tolerated, regardless of the meeting format.

Mark, fyi, I’ll also add that the state legislature passed Sub.HB 51 this year, granting public bodies broad authority under the Open Meetings Act to hold “virtual” meetings (via teleconference, Zoom, etc.) through June 30, 2022.

[Mark Kindt]

Thank you for this important clarification! I was unaware of this enactment. I really appreciate the clarification.

In the past 24 hours, I've been on 2 WebEx conferences, 1 Zoom conference, and 1 Loop conference.

My own profession has evolved in this direction with great speed. --Quite unusual for us parchment and quill folks.

The technology has arrived despite some bumps. It may have limitations and unintended consequences.

I hope the City gives careful attention to its further implementation across its public functions beyond the mere pressures for adoption created by Covid-19.

[Mark Kindt]

Ohio House Substitute Bill 51 Has been signed:

https://governor.ohio.gov/media/news-an ... w-02172022