In a single sentence, the Supreme Court vindicates consent agendas under the Open Meetings Act

Earlier this year the Ohio Supreme Court struck down an effort to dismantle public bodies’ use of consent agendas, a tool that enables officials to vote more efficiently on routine agenda items at meetings.

Brian Ames, a frequent litigant in sunshine-law cases, sought the Supreme Court’s reversal of a lower court opinion that upheld the Columbus school board’s use of consent agendas amid the Open Meetings Act, which requires, with limited exceptions, public bodies to deliberate in the open. Usually confined to day-to-day matters of ordinary importance, consent agendas are employed by public bodies around the state to lump agenda items together and approve them with a single vote, rather than with individual votes on each agenda item.

In the Ames case, the school board had ordinarily used the consent agenda for items like approving minutes, paying bills and hiring personnel and accepting resignations—and, in this case, authorizing the renewal of a membership in a group of school boards around the state that are challenging school vouchers. The board’s policy permitted the board to return any item on the consent agenda to the regular agenda, and any member was given a chance to discuss an item on the consent agenda before a vote. In the case of the matter approving the payment to the anti-school-voucher coalition, no school board members asked to discuss the item or remove it from the consent agenda.

Ames argued that consent agendas thwart the discussions among members of a deliberative body that he believes are the hallmark of open meetings. “Since discussion is a critical element of a meeting, there is no meeting absent an exchange of views,” he wrote in his brief urging the Supreme Court to accept his appeal. “The use of a consent agenda, whose very purpose is to foreclose discussion of so-called routine matters, is antithetical to the conduct of a meeting.”

On that point, the court of appeals had noted that while Ames' “concern is that the Board members chose not to discuss every item on the consent agenda, … nothing in the Open Meetings Act requires a public body to discuss every issue on which the public body votes.” So long as the public has access to any discussions that do take place, the court had held, the Open Meetings Act is fulfilled.

Ames was unpersuasive in convincing the Supreme Court to take up the case. In a 6-1 vote in January, the high court declined to accept his appeal with a one-sentence order. It’s certainly a win for public bodies that use consent agendas, solidifying their place within open meetings—but it should also allay all those public bodies that frequently vote on docketed agenda items without explicitly discussing them first.

McDonald Hopkins' Public Law team frequently advises clients on the implications of Ohio’s sunshine laws including the Open Meetings Act. Feel free to contact us for assistance.