With a remand, high court settles a fraught question: Can a public body cure its own Open Meetings Act violation with a simple redo?

Last month the Ohio Supreme Court appeared to have settled a question that still merits its own section in the “Yellow Book,” the manual that guides public officials and their attorneys on sunshine law compliance. The question is whether public bodies found to have violated the Open Meetings Act, R.C. 121.22 — the statute that generally requires public bodies to deliberate and make decisions out in the open — may cure their violations by simply redoing in the open what they failed to do in the first place.

In a case involving the disciplinary termination of a village police chief under a statute that gives chiefs the right to a due-process hearing, the Supreme Court held that the village council failed to perform its deliberations entirely in public by adjourning into executive session to consider the chief’s fate. The court held that council was obligated to deliberate fully in public because the chief requested an open hearing, and the Open Meetings Act is clear that when an official subject to discipline asks for a public hearing, the deliberative body may not go into executive session for any portion of it.

But in the court’s 32-paragraph opinion, a single sentence most piqued our interest: “[T]he village council’s decision to terminate [the chief’s] employment is invalid, and remand is necessary to allow the village council to consider the issue in compliance with the Open Meetings Act.”

That may not seem groundbreaking, but in fact it helps to resolve a question that has vexed those operating under the Open Meetings Act — and members of the public who challenge decisions made improperly in private — for some time. In the Yellow Book, for example, the Ohio Attorney General includes settled law that any Open Meetings Act violation invalidates the underlying decision, but the manual leaves open the question whether a public body can simply do what it should’ve done in the first place to remedy its error. The attorney general writes: “Courts have different views as to whether and how a public body can then cure the violation, for instance with new, compliant discussions followed by compliant formal action.” Here, the Yellow Book cites several decisions that have forbidden public bodies from curing Open Meetings Act violations by returning to the same matters improperly deliberated on in executive session and voting on them again in the open. Other appellate decisions cited do the opposite: Allow public bodies to vote again in open in order to remedy their prior Open Meetings Act errors.

For our part, we’ve always found decisions forbidding “cure” votes to be curious. In the case of the police chief, for instance, this line of thinking would lead to a situation in which the chief would forever escape what might be clearly warranted discipline merely because her village council conferred in private on her termination. That would seem an absurd outcome, but some appellate courts would advocate making that specter real.

Thankfully for public officials and lawyers, the Supreme Court has settled the issue: To remedy an Open Meetings Act violation, public bodies may reconsider the same matter in a proper open meeting. A do-over is indeed permissible.

The case is Barga v. St. Paris Village Council, and it may be read here. For any difficult sunshine law questions you may have, feel free to contact any of us on the Public Law team for assistance.