NOTE: Gov. Mike DeWine signed the budget, including the amendment described here, into law on July 3, 2023. OneOhio’s exemption from transparency and bribery laws takes effect October 3, 2023.)
The Ohio legislature is preparing to make $1.1 billion in opioid settlement spending secret. In addition to preventing the public from knowing how money is spent, the legislature plans to take the unprecedented step of revising the OneOhio opioid settlement agreement to legalize the bribery of elected officials to influence who gets money.
The extraordinary changes were placed, both last minute and unannounced, into a giant 9,128-budget bill (HB 33) that legislators are rushing to pass before the budget year ends on June 30. The two-page measure to make spending secret and bribery legal was added to the 9,198-page budget bill on Wednesday, June 14, shortly before the Senate Finance Committee approved the sending the budget bill to the full Senate.
No senator has taken credit for the change. Senate Finance Committee Chair Matt Dolan, (R-Chagrin Falls), did not acknowledge the change during his 12-minute summary of what the bill included.
On Thursday, June 15, the Ohio Senate approved the budget bill without mentioning the two pages in OneOhio budget amendment open meetings public records that legalize bribery for opioid settlement funds or the changing the law to keep spending secret.
The Ohio Senate and the Ohio House of Representatives have both passed different versions of the state budget. The House version, approved on April 26, does not include the secrecy and bribery provisions. The Senate version, approved June 15, does. Next, the leadership of both chambers will appoint a committee to work out differences between the House and Senate budgets.
If this “conference committee” leaves the opioid settlement measures in the final version, Ohio will have a state budget that makes history in an unexpected way: legalizing bribery to get $1.1 billion in government funds and requiring that all details on spending and decision-making be kept from the public.
Dark money: $1.1 billion in settlement funds
Ohio will receive $2 billion over 18 years from opioid settlements reached with about 10 defendants (wholesale distributors, pharmacies, manufacturers).
The 11-page OneOhio opioid settlement agreement — approved by nearly every county, municipality and township in Ohio — requires that decision-making and spending be done in accordance with open meeting and public records laws. The agreement divides money:
- 15% directly to the state of Ohio.
- 30% directly to local government.
- 55% to the newly created OneOhio Recovery Foundation
Ohio’s 110 local health districts and 50 mental health boards are separate governmental entities and were excluded from the settlement, despite their dominant governmental role dealing with opioid problems.
The proposed secrecy and bribery rules would apply only to money controlled by the OneOhio Recovery Foundation’s 55% share of the total payout. The $900 million that state and local governments spend directly will still be available to the public and bribing to get the money will remain illegal.
The $1.1 billion that goes to the OneOhio Recovery Foundation is what would become secret and eligible for bribery if the change slipped into the budget passes.
The OneOhio Recovery Foundation is run by a 29-member board appointed by the governor, attorney general, legislative leaders and local governments. Most board members are public officials themselves, with elected county commissioners being the most commonly appointed.
Going secret: 19 OneOhio regional boards
The regional boards were created by local Ohio governments and their members are appointed by county commissioners, city councils and township trustees. These 19 regional boards have considerable control over who receives the foundation’s $1.1 billion.
The secrecy-bribery provision also converts 19 regional opioid settlement boards, which now operate publicly in open meetings, into secret organizations exempt from the Ohio Open Meetings Act. If the secrecy-bribery rule survives the budget process, these government board meetings will go dark when Gov. Make DeWine signs the budget, probably July 1.
In all, the 19 regional boards have 289 board members. Harm Reduction Ohio identified 259 of these. These 19 government boards include the following board members:
- 131 elected officials (county commissioners, mayors, city council members, township trustees, sheriffs, judges, prosecutors, etc.)
- 81 government employees (mental health board directors, police chiefs, fire chiefs, law directors, county and municipal administrators, etc.)
- 41 private citizens (health care providers, lawyers, ministers, treatment providers, etc.)
- 3 whose profession could not be determined
Under the Senate plan, these board members could accept bribes. They would also conduct deliberations and make decision in secret.
Violating OneOhio agreement
The OneOhio settlement agreement approved by 800+ local Ohio government requires that all meetings and records be conducted according to Ohio’s open meetings and public records laws. (See Section 12 of the agreement above.)
However, from the very first state board meeting on May 16, 2022, OneOhio has claimed it did not have to follow the transparency requirements of the settlement.
Harm Reduction Ohio sued the board for violating Ohio Open Meetings Act and the Ohio Public Records Act. Harm Reduction Ohio won both cases.
On March 9, a Franklin County judge ruled the OneOhio foundation must follow the open meetings act. In April, after OneOhio continued to hold secret meetings, the judge issued a temporary restraining order that ordered OneOhio to immediately comply with his earlier ruling. The judge said both the settlement agreement and Ohio required OneOhio to conduct open meetings.
On May 11, the Ohio Supreme Court ruled 7-0 that the OneOhio foundation must follow the public records act. The court ruled that Ohio law — not just the settlement agreement — required compliance with public records law.
The language snuck into the budget bill would override the court decision and Section 12 of the settlement agreement requiring transparency.
Senator: Opioid settlement secrecy for “public good”
Sen. Rob McColley, R-Napoleon, a member of OneOhio’s board, is the politician who snuck the secrecy and bribery language into the state budget. He explained his rationale to The Columbus Dispatch:
State Sen. Rob McColley, R-Napoleon, who serves on the OneOhio board, said the private foundation was never intended to be a public agency that is bogged down by state requirements. “That would really hamper the amount of public good it can do.”
Instead, the foundation should operate under its own rules and bylaws and hold open, public meetings, he said.
The OneOhio Recovery Foundation’s argument is that it is a private non-profit, even if 100% of its money is public money and its board is controlled by elected officials. In the foundation’s view, it should be able to spend money as if it is the Bill and Melinda Gates Foundation spending Bill Gates’ Microsoft fortune. The courts rejected these arguments. They ruled that, based on the foundation’s source of funds and who controls the foundation, the OneOhio Recovery Foundation was the “functional equivalent” of a governmental body.
One difference, of course, is that this is not Bill Gates’ money or that of private donors. It is public money being spent by public officials.
The budget bill would override the court decisions and convert $1.1 billion into private money once it arrives at the foundation. The public would have no right to know who receives money from the OneOhio foundation or how decisions were made.
From OneOhio’s perspective, bribery would be an internal problem, not a legal issue. The foundation has passed a conflict-of-interest policy that says the board “shall take appropriate disciplinary and corrective action” if a conflict occurs.
The legislature’s see-no-evil approach to OneOhio bribery has no precedent in Ohio law. Even JobsOhio, the state’s non-profit economic developed arm, explicitly banned bribery.
Redefining reality to OK bribery
The legislature legalizes OneOhio bribery by exempting elected officials directing OneOhio money from who is considered a “public servant” and “public official.”
Ohio’s anti-corruption statute (Ohio Revised Code 2921.01) defines “public official” as “any elected or appointed officer, or employee, or agent of the state or any political subdivision, whether in a temporary or permanent capacity, and includes, but is not limited to, legislators, judges. and law enforcement officers.”
The law defines “public servant” even more broadly, to include (a) “any person performing ad hoc a government function, including, but not limited to, a juror, a member of a temporary commission, master, arbitrator, advisor or consultant,” and (b) candidates for public office.
Anyone who meets this definition found in ORC 2901.01 cannot do what is defined as “Bribery” in ORC 2921.02. Bribery is offering, soliciting or accepting “anything of value” to influence a decision related to a public servant’s official’s duty.
Under the law tucked into the state budget, these public officials directing OneOhio money do not count as public officials. Specifically, the language says:
An employee, officer, or appointed member of the OneOhio Recovery Foundation is not any of the following…A public official as defined in section 2921.01 of the Revised Code.
Simple as that. With a skilled legislative knife, bribery is legalized without mentioning the word.
The change makes it legal to offer bribes to public officials, as well as for those public officials to accept them.
The change also ensures that public officials can legally accept grants and contracts directly from OneOhio because “Having an unlawful interest in a public contract” (ORC 2921.42) no longer applies to the foundation.
The budget measure overrides the court decisions requiring OneOhio to act in the open with a similar technique. It exempts OneOhio and its 19 regional boards from ORC 149.011 and ORC. 121.22, which are the Public Records Act and the Open Meetings Act, respectively.
On top of that, it exempts OneOhio and its board members and staff from Ohio ethics law, competitive bidding rules, being reviewed by the Ohio State Auditor or on making spending public information in databases.