The Portage County commissioners’ use of a “consent agenda,” allowing them to conduct all of the official business of its solid waste district in less than a minute, may have violated the Ohio open meetings act, the Ohio Supreme Court ruled today.

In a unanimous per curiam opinion, the Supreme Court ruled that while state law does not appear to prevent the use of consent agendas, a Portage County resident raised a “plausible theory” that the manner in which consent agendas are used by the commissioners closes its public meetings “and is an impermissible end-run around the Open Meetings Act.”

Solid Waste Board Conducts Short, Swift Meetings
A 1988 state law required county commissions to either establish a solid waste management district or participate in a joint district with other counties. Portage County established its own district, and the Portage County Board of Commissioners also serves as the board of directors of the Portage County Solid Waste Management District (SWMD).

The commissioners generally begin their weekly meetings at 9 a.m., recite the Pledge of Allegiance, and immediately recess the board meeting. They then begin an SWMD meeting. Once the board adjourns the SWMD meeting, it resumes the commissioners’ official public meeting regarding county business.

In 2019, the commissioners adopted a consent agenda procedure for the SWMD meetings. The procedure allows for routine items, such as approval of minutes of the previous meeting and approval of the payment of bills presented by the county auditor, to be placed on the agenda along with other matters. A single “yes” vote by a SWMD director on the consent agenda constitutes a “yes” vote for every item included in the consent agenda.

In September 2019, two SWMD meetings used consent agendas that contained approval of the minutes and three resolutions. The commissioners completed each meeting within a minute and returned to other county business.

Resident Questions Proceedings
Brian Ames, a county resident, submitted a public records request in December 2019 regarding the two September meetings. The county commissioners’ clerk emailed the minutes the next day.  The minutes contained the full text of the resolutions on the approved consent agendas.  The minutes for one of the meetings indicated that one resolution approved contract payments submitted by the county auditor, but an attached list of the expenditures was not sent to Ames.

After receiving the records, Ames sought a writ of mandamus from the Eleventh District Court of Appeals, arguing the county was violating the open meetings act by conducting SWMD business during recesses of the county commissioners’ meetings. He asked the appeals court to order the county to prepare, file, and maintain accurate minutes of the September SWMD meetings and to conduct all future meetings in public.

The county sought summary judgment, and the Eleventh District sided with the commissioners, finding the SWMD is a valid public body and the minutes of the SWMD meetings satisfied the requirements in R.C. 121.22, the open meetings act.

Ames appealed to the Ohio Supreme Court, which was obligated to hear the case.

Supreme Court Questions Meeting Process
The Court noted the open meetings act requires public officials to take official action and conduct all deliberations of official business in public meetings with a few exceptions. The opinion noted the Court has found the act violated when local governments discuss items via email prior to taking a public vote, meet in small groups before reconvening as a whole to vote, or use a secret ballot during a meeting with members of the public in attendance.

Ames argued that while the SWMD meetings were open to the public, the commissioners did not state or otherwise make public at the time of the meeting which specific resolutions were included in the consent agenda. By failing to inform the public about which resolutions were being considered, the board was essentially voting on individual resolutions in secret, he asserted.

The Court’s opinion stated that nothing in R.C. 121.22 appears to prevent the use of a consent agenda as a general matter. But Ames’ argument that the manner in which the SWMD used the consent agendas at its meetings was sufficient to overcome summary judgment. It is possible that the SWMD’s manner of using consent agendas “constructively closes its public meetings,” the Court noted. The Court remanded the matter to the Eleventh District to determine whether the SWMD’s practices violate the open meetings act. The Court also ordered the county to produce to Ames the list of expenditures that had been omitted from the meeting minutes provided in response to Ames’s public-records request.

2020-1120. State ex rel. Ames v. Portage Cty. Bd. of Commrs., Slip Opinion No. 2021-Ohio-2374.

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