Ohio Ethics Commission resolves nagging question: When is it wrong for officials to speak publicly on what's discussed in executive session?

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Ohio's top ethics watchdog has issued an opinion that should help to clear up a question bemusing public officials and their legal counsel for as long as executive sessions have been used to discuss sensitive matters.

In its April 17, 2020, advisory opinion, which sits at the intersection of the Open Meetings Act and the statewide public ethics laws, the Ohio Ethics Commission wrote that officials who publicly disclose confidential items that were previously discussed in executive session may violate R.C. 102.03(B). That law prohibits public officials from disclosing information that is made confidential either by statute or where circumstances clearly warrant maintaining its confidentiality.

Under Ohio's Open Meetings Act, R.C. 121.22 et seq., meetings attended by a majority of any deliberative body must generally be open to the public. Exceptions exist allowing officials to discuss, in closed-door executive sessions, certain matters that the Open Meetings Act permits as confidential -- matters such as personnel issues, real property transactions, litigation strategy and security concerns.

In a spirit of transparency, autonomy or sometimes even dissent, some officials have earnestly wondered whether they may share publicly the matters they've discussed with their peers in executive session. This advisory opinion generally answers that question in the negative, unless explicit permission has been given to share the information.

According to the commission, if the information discussed in a properly called executive session is confidential by statute or clearly considered confidential by context, then officials are ethically obligated to keep it private because, first, the majority of the public body explicitly voted for the executive session and, secondly, the Open Meetings Act "strictly limits the types of approved government business permitted to be discussed in executive session."

While the commission did not address closed-door attorney-client communications in its opinion, it would stand to reason that privileged discussions had in executive session with a public body's attorney would also qualify as confidential -- and under the same ethics law would thus be protected from subsequent public disclosure by any one official attending the closed-door session.

The advisory opinion also touches on whether the ethics law prohibits officials from publicly sharing records considered in executive session. While oral communications should be kept confidential, "the privacy afforded to executive session discussions does not automatically make confidential all documents that a public body may discuss in executive session," the commission concluded, construing Ohio's Public Records Act, R.C. 149.43. "If a document is a 'public record' and is not otherwise exempt under one of the exemptions to the Public Records Act, then that document may still be subject to public disclosure even if the public body appropriately discussed it in executive session."

Because violations of the ethics law governing confidentiality are first-degree misdemeanors, officials and their counsel are wise to take note of this guidance from the ethics commission. Read the commission's advisory opinion here.

Our Public Law team includes several current and former law directors and legislators with decades of experience in counseling public entities of all types on ethics and sunshine laws. If you have questions or need assistance in any of these areas, please contact the attorney listed below or any other member of the group.

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