Temporary Restraining Order issued April 25 to compel compliance
OneOhio ignored order, continued to hold secret meetingsÂ
Harm Reduction Ohio filed a motion today to hold Ohio’s opioid settlement board in contempt of court for violating a court order requiring compliance with Ohio’s Open Meetings Act.
Franklin Court Court of Common Pleas Judge Mark Serrott issued the temporary restraining order (TRO) on April 25, 2023, to require the OneOhio Recovery Foundation to comply with open meetings law. He ruled March 9 that OneOhio was covered by the law, but the board continued to exclude the public from meetings, forcing Harm Reduction Ohio to seek the temporary restraining order, which was granted.
The court order said: “The Foundation shall comply with Revised Code § 121.22 for all meetings, including subcommittee meetings.  All meetings shall have proper and sufficient notice as required in § 121.22(F).  Any meetings or portions of meetings that are exempt from § 121.22 shall be clearly identified and disclosed.” (The Ohio Open Meetings Act is Section 121.22 in the Ohio Revised Code.)
In July, Harm Reduction Ohio learned OneOhio was continuing to hold meetings in violation of open meetings law and the court order. (The motion here provides details. It also can be read or downloaded below.)
Discovery of violations
Harm Reduction Ohio attorney Jack Greiner of Cincinnati took a deposition from OneOhio interim Executive Director Kathryn Whittington on July 5. In the deposition, Whittington revealed that the Foundation’s Executive Search Committee held meetings on May 8 and May 17. Harm Reduction Ohio later learned of another Executive Search Committee meeting on May 9 and likely meetings held in June and July on unknown dates.
The meetings were not publicly noticed as to time, place and purpose, as required by the Open Meetings Act. The committee did not enter into executive session (i.e., a nonpublic portion of an otherwise public meeting), nor did it keep meeting minutes for the public to know what occurred at the meetings. These failures violate the Open Meetings Act and the April 25 TRO requiring that open meetings law be followed.
The motion reported in this article reflect the legal views and research of OneOhio. When OneOhio files its response in court, that will be posted here as well.
Background
The OneOhio Recovery Foundation is a government-controlled non-profit, established by Ohio’s state and local governments, to distribute $1.1 billion of Ohio’s $2 billion in opioid settlement money. State and local governments will spend the rest of the other $900 million directly. The $2 billion will be paid from a dozen settlements over the next 17 years. Most money arrives in the first seven years.
The Executive Search Committee consists of eight members of the 29-member board of directors. The committee was created to select three candidates for the full board to send to Gov. Mike DeWine to select a permanent Executive Director. The Executive Director will be paid $250,000 to $300,000 per year, plus benefits. In October, the Executive Search Committee hired a search firm. Kittleman & Associates of Chicago, for $125,000 to help with the search.
On March 9, Judge Serrott ruled that OneOhio was covered by Ohio’s open meetings law. In a separate but related case, also filed by Harm Reduction Ohio, the Ohio Supreme Court ruled unanimously that OneOhio was covered by Ohio’s public records law. Harm Reduction Ohio has used both laws, especially public records law, to try to uncover what the secretive board was doing. After the judge’s order on April 25 that OneOhio had to starting following open meetings law immediately, OneOhio cancelled all committee meetings — or so it was represented on OneOhio’s web site. In fact, the Executive Search Committee (and perhaps others) continued to meet and conduct business; it just keep these meetings secret from the public, the plaintiff (Harm Reduction Ohio) and the judge in the open meetings case.
Secret Meetings
In all, the Executive Search Committee had held at least nine secret meetings. At least three meetings occurred after the court’s April 25 TRO. Three meetings occurred after the judge ruled March 9 that OneOhio was covered by the Open Meetings Act but before Harm Reduction Ohio returned to court to obtain a TRO to force compliance. All nine secret meetings occurred after Harm Reduction Ohio filed suit alleging open meeting violations.
The known meeting dates of the Executive Search Committee are:
- September 30, 2022
- October 20, 2022
- February 2, 2023
- March 29, 2023
- April 12, 2023
- April 19, 2023
- May 8, 2023
- May 9, 2023
- May 17, 2023
None of the meetings was noticed to the public. The Executive Search Committee later held at least one additional meeting to narrow five or six candidates to a final three. The dates of those meetings are not publicly known.
OneOhio also failed to disclose Executive Search Committee meetings in the legal case’s discovery phase, despite being asked to do so and acknowledging the committee was active. Harm Reduction Ohio may seek a court order to compel OneOhio to provide responsive information and documents that have been withheld.
Last month, the Ohio legislature included two pages in the state’s 6,000-page budget bill that would exempt OneOhio from open meetings and public records law and allow members to accept bribes. However, that exemption does not take affect until October 3 and all the known violations occurred before the budget law was passed anyway.
Open Meetings Act/TRO Violations
For those interested in Ohio’s transparency laws, the Ohio Attorney General has an excellent manual that explains Ohio’s Sunshines in detail. (Read it here.)
The Open Meetings Act has essentially just one penalty for violations: all actions taken or emanating from meetings held in violation of the open Meetings Act are invalid. If the court rules OneOhio violated the Temporary Restraining Order, other penalties could be applied but are not mandatory, unlike the invalidation rule.
On July 12, 2023, the full board voted unanimously to send the three candidates selected by the committee to the governor. The candidates are Lynnette Cook, current Executive Director of ARNOVA; Lisa Mertz, current President & CEO of Addiction Services Council; and Alisha Nelson, current Director of Humana Healthy Horizons Ohio.
After returning from a properly noticed nonpublic executive session, the full board unanimously approved the committee’s recommended candidates in 18 seconds. There was no discussion.
What it means
Readers are encouraged to read the Harm Reduction Ohio’s 10-page legal brief — and OneOhio’s response when it’s available — to come to their own conclusions based on the facts and the law.
In the motion’s last paragraph, Harm Reduction Ohio asked the judge to consider the following penalties for OneOhio acting in contempt of the court order:
Defendant’s violations go to the heart of this Open Meetings Act case and the purpose of the TRO. As a penalty for violating the TRO, the Court should rule posthaste that, as required by R.C. 121.22(H), the actions of the Executive Search Committee are “invalid,” as are all board actions emanating from committee meeting held in violation of the Open Meetings Act and the TRO. Plaintiff further asks the Court to impose civil penalties to the Court that it deems appropriate for violating the Court’s TRO and may serve as a disincentive for future violations. HRO is also entitled to an award of attorney fees for the time incurred in preparing this motion.
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