Editor’s note: This story has been updated since the story went to print. It includes a final response from Avon Lake Regional Water regarding a public record request.
By Bryan Wroten
The Board of Municipal Utilities chose to interview candidates to fill a vacancy on the elected board in executive session despite listing the interviews under the open session of the board meeting’s publicly available agenda.
Acting Chairman John Dzwonczyk began the discussion by asking the other present board members, Randy Philips and Tim Rush, whether the board should move the interviews into executive session. Public bodies are allowed to enter these closed-door sessions to discuss the appointment of public officials, which include elected officials.
Philips said it’s a personnel matter, so the board could legally go into executive session.
“There could be sensitive personal questions that are asked of these people, and I’m not so sure they would like it to be part of public record,” he said. “I think it’s appropriate. It is one of the reasons that you can go into executive session, is to consider the employment of individuals. And I think we’ve got that situation here.”
Another issue the board considered was whether having candidates sit through the interviews of another candidate would give an unfair advantage. By having the interviews in open session, Philips said, the candidates could exercise their right to attend a public meeting and sit through all the interviews. If the board asked the other candidates to sit outside during the interviews of the other candidates, he said, that would put them in an awkward position.
During this discussion, the reporter for The Press objected to the board considering going into executive session. While not disputing the legal right to do so, the reporter pointed out the meeting agenda told the public the board would conduct the interviews in open session as well as Chief Utilities Executive Todd Danielson previously telling The Press (seen in the March 26, 2014, edition) the interviews would be done in public.
The reporter also stated the board previously conducted public candidate interviews when considering the replacement of former board Chairman Chuck Whitmer. The board publicly interviewed five candidates in October 2012 and appointed Ian Hessel to the board.
When asked whether the other candidates indicated to the board they planned to attend the other interviews or if this was only hypothetical, Philips answered that it was hypothetical.
Rush said the board has the right to invite anyone it wants into executive session. The board could invite audience members but not the candidates until their scheduled times, he said. Philips and Dzwonczyk discussed this possibility until pointing out the audience members would still be free to disclose what would occur during the executive session.
“I’m ambivalent about this because of a couple of things that were brought up,” Dzwonczyk said. “One is the expectation of the people that came here have, while that’s not an overriding concern, is obviously of interest to them. Second is, the fact that the candidates are arriving now, this public session is going to be open to anybody, so anybody that gets asked a question, gets asked. That’s been the precedent. Lastly, if we have the agenda that was previously published, are we unable to change the rules of this?”
Philips responded it the board could go into executive session as long as it met the legal requirements.
Though the reporter then pointed out this appointment is for a normally elected position, the candidates for which would be under public scrutiny, Philips said the candidates in an election don’t have to answer a reporter’s questions while the candidates before the board that night would have to answer the board’s questions.
Ultimately, the board decided in a 3-0 decision to move the interviews into executive session. After the two-hour long executive session during which the board interviewed former board member Tony Abram, Dave Rickey, Erica Larson and Mariah Vogelgesang, the board reconvened in open session to appoint Rickey to the board.
Following the meeting, The Press requested a copy of the audio recording made of the meeting. Danielson, who acts as clerk for the board, has used the ALC-TV and audio recordings of the board to write up the minutes of the meeting. The board chose not to have ALC-TV record this meeting, so only the audio recording exists as a word-for-word record of the meeting. After requesting the recording, Danielson said he accidentally allowed the audio recorder to record a portion of the executive session.
The Press has requested the entire recording of the meeting, including the executive session portion, as it holds the recording is a record created by the public office that documents the operation and activities of the board. Though Danielson provided a copy of the recording from the public session of the meeting, he cited Ohio Revised Code 121.11(G)1 to deny the request for the executive session portion of the meeting. The Press has responded that the section cited gives the board the legal right to enter executive session but does not specifically deny the full recording’s status as a public record.
Danielson then responded by saying the recording was made by accident and was not meant to record the operations of the board and won’t be used to create a written set of minutes, and therefore it is not a public record.
In support of more open government
As a general proposition, the more activity a public body can conduct in front of the public, the better, said Dennis Hetzel, executive director of the Ohio Newspaper Association and president of the Ohio Coalition for Open Government.
“When filling a position on an elected board, there ought to be a compelling reason for doing it in secret, but the law gives them the right to do it,” he said.
In most cases, people on public bodies are used to operating in the private sector, he said, and it’s a knee-jerk reaction to apply how they handle things in the private sector to the public sector.
“In the public sector you are working for the public,” he said. “I understand the reasons, but it’s outweighed by the need to do it in public. If the candidate for a seat on a public body might be made uncomfortable by those sort of questions, they shouldn’t be applying for that body anyway.”
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