OneOhio opioid settlement spending off to disastrous start

Public prohibited from attending first OneOhio foundation meeting

Foundation, board appointments flaunt Ohio open meetings law

The state held its first meeting today of the OneOhio Recovery Foundation created to spend the state’s opioid settlement money and prohibited the public from attending the meeting.

Excluding the public from OneOhio’s organizational meeting was a clear violation of both Ohio open meetings law and the opioid settlement agreement, which explicitly states the foundation will follow Ohio open meetings and public record laws.

Harm Reduction Ohio President Dennis Cauchon objected to the meeting being closed to the public, citing both Ohio open meetings law and the opioid settlement agreement. The governor’s office said Cauchon and other members of the public could watch the meeting on a television set up in another room but could not attend the meeting or interact with board members.

Cauchon declined the offer to watch the meeting on television, filed an objection and left. The meeting agenda said Gov. Mike DeWine provided opening remarks. It is not known if DeWine attended the meeting in person or appeared by a video link. The meeting was held from 1 p.m. to 3:30 p.m. at the Ohio Department of Public Safety in Columbus, according to the agenda.

The meeting agenda said provisional OneOhio officers — a president, secretary and treasurer — would be selected at the meeting. However, without public input or attendance, it is not known if this happened.

“It is totally unacceptable to exclude the public from being involved in how the $1 billion settlement is spent,” Cauchon said. “People died for this money. OneOhio is a private club to be run by the governor’s office. People who’ve suffered from the opioid problem deserve seats at the table. Instead, we can’t even get in the room. This is not acceptable.”

The $1 billion OneOhio Opioid Settlement

The OneOhio agreement was established to determine how the state will spend its opioid settlement money. Under the OneOhio agreement, the state and about 2,000 local governments (counties, municipalities and townships) settled with three wholesale distributors of prescription opioids and one company that manufactured opioids to receive about $1 billion over 18 years.

The agreement divides the $1 billion this way:

• 55% to the OneOhio foundation. (The board met for the first time yesterday.)
• 30% to about 2,100 local Ohio governments. (Each government will decide how it spends its shares.)
• 15% to the state of Ohio. (The legislature will allocate the money.)

The total settlement amount will increase, perhaps to $2 billion, after lawsuits against Purdue Pharma, pharmacy chains and others are completed.

How OneOhio works

The state of Ohio designed the OneOhio opioid agreement so 55% of settlement funds would flow to the non-profit OneOhio Recovery Foundation. The foundation will have a 29-members board. Nineteen board members will be chosen by local regions. The other members will be selected by the state.

The use of a non-profit foundation to control a majority of the settlement money was a creative solution to win broad support, make sure the money was used efficiently and to avoid what happened to the tobacco settlement money, which legislature sold off for money used to close a one-year budget deficit.

Ohio’s OneOhio approach received well-deserved praise from inside and outside the state for its creative approach. Harm Reduction Ohio has strongly supported the OneOhio approach and the creation of a foundation. The deal worked, at first. Ohio’s local government, with just a few holdouts, signed on to the agreement, avoiding years of litigation and the wasting of large sums of legal fees.

However, after the settlement was signed by Gov. Mike DeWine and Attorney General Dave Yost and approved by local governments, the implementation of the agreement began – and that has gone terribly and, in recent months, has gone from bad to worse. The sayings about the “devil is in the details” and “the road to hell is paved with good intentions” has seldom been more apt.

OneOhio heads off course

While the governor and the attorney general (and others) were involved in negotiating the settlement, the Attorney General overall had the lead role in negotiating the deal. This turned out well. Getting two thousand governments to agree to anything is not easy.

After the deal was done, primary responsibility for the difficult task of executing the OneOhio settlement shifted to the governor’s office. To be blunt, it has been a rocky start, plagued by secrecy, a lack of leadership and poor coordination at every level. When it comes to information, OneOhio functions like a black hole. (Despite multiple requests, the governor’s office won’t even identify who is currently on the OneOhio Recovery Foundation board.)

The governor assigned OneOhio to his RecoveryOhio drug policy office, headed by interim director Aimee Shadwick. RecoveryOhio has posted almost no information on OneOhio or or the opioid settlement on its web site. There have been almost no news articles published on what’s happening with the $1 billion settlement.

Shadwick told members appointed to the OneOhio board by the governor not to talk to the public (or Harm Reduction Ohio) and to direct all queries through her. She has provided little information on how the settlement is being handled and no assurance that people with lived or shared experience with the opioid crisis will have any meaningful role in how opioid settlement money is spent. Harm Reduction Ohio represents people impacted by overdose death and has been advocating for people affected by the opioid problem to have a say in how opioid settlement money is spent.

On Friday morning, Harm Reduction Ohio asked Shadwick and RecoveryOhio communications manager Layne Goode for a list of current OneOhio board members. As of the publication of this article, the state has not provided a list of current OneOhio board members.

Last week, the governor’s office announced the state would hold its first OneOhio Recovery Foundation board meeting on Monday afternoon at the Ohio Department of Public Safety Building, the same place that RecoveryOhio board meets. Oddly, the first sentence in the meeting announcement was a claim that the meeting was not covered by Ohio open meetings law. This is a bizarre, perhaps unprecedented way for a government to announce a meeting.

The claim, almost certainly false (as explained later), was used as the basis for shutting the public out of the meeting.

Behind closed doors: OneOhio’s first meeting 

Cauchon, who founded Harm Reduction Ohio in 2017 after a 32-year career as a journalist, emailed Shadwick and RecoveryOhio communications manager Layne Goode at 9 a.m. Friday to say he’d be at the meeting. There was no indication that the public would be blocked from attending. To prepare for the meeting, Cauchon also requested the names of people on OneOhio’s board and a copy of the meeting agenda and other information that would be distributed. Nothing was provided.

“This was a normal, friendly, professional email exchange. I had no idea they were planning to shut the public out of the meeting,” Cauchon said. “When they didn’t send the agenda, I thought, ‘oh, they must be too busy.’ Only when I got to the meeting, did I realize they were planning to shut me and others out. To say I was surprised is an understatement. In 30 years of journalism. I can’t ever recall being shut out of a public meeting. I thought the public might not be allowed to speak, but it never occurred to me we wouldn’t be allowed in the room! to observe!”

Cauchon arrived for the meeting a half hour before its 1 p.m. start time. He was told he could not attend but could watch on a television set up elsewhere. Confused, Cauchon asked the receptionist to check with Shadwick because she knew he was coming and had (seemingly) approved him being there to watch.

When Cauchon and other members of the public were refused access, Cauchon challenged the meeting as a violation of Ohio meetings law and the OneOhio settlement. The other members of the public in attendance were a lobbyist, who left after being denied entrance, and a local government official from northern Ohio who was a colleague of an admitted board member. The local official stayed and watched alone the TV alone in a big empty room. 

In addition to being denied access to the meeting, the public was not provided the meeting agenda or other the materials the OneOhio board would discuss.  After several requests, a private lawyer representing the foundation provided Cauchon 25 pages of material that was given to the OneOhio board. The private lawyer, Holly Gross of the Benesch Friedlander Coplan & Aranoff law firm, queried the governor’s staff whether the public (two people) could attend the meeting. She reported back that there was no room for the public, not even to stand.

Cauchon made a formal objection to the illegally closed meeting and left.

“I will note that there were more public employees keeping the public out of the OneOhio meeting than there were members of the public. It was government at its most comical,” Cauchon said.

Addendum: The Cleveland Plain Dealer published this photo of the meeting today. Was the claim that there was no room for three members of the public to attend an open meeting accurate or false?

Ohio Open Meetings Law

What does Ohio open meetings law require? Let’s look at “Ohio Sunshine Law 2022: An Open Government Resource Manual,” published by the Ohio Attorney General. You can see the manual, informally called “The Yellow Book,”  here. It’s 145-pages long, not counting three appendices. Open meetings information starting on Page 98, explains what the law says and how it has been interpreted by the courts.

Ohio open meetings law is not overly complex. A meeting is (1) a pre-arranged gathering, (2) of a majority of the members of a public body, (3) who are discussing or deliberating public business. The Yellow Book makes clear that the courts have ruled that open meetings law applies to committees, subcommittees, email chains and the many creatively named get-togethers — “work sessions,” “retreat,” etc. – that Ohio governments have tried (unsuccessfully) to dodge the open meetings law.

To quote the Attorney General Yellow Book: “The Open Meetings Act is intended to be read broadly in favor of openness.”

In this case, the governor’s office thinks it has found a loophole. It says the meeting was not covered by open meetings law because OneOhio is a private non-profit foundation.

That is probably false…but certainly irrelevant because the OneOhio agreement says the foundation will be covered the open meetings law the same way governments are.

At some point (It is hoped!), OneOhio will be a non-profit foundation. But, today, it is no such thing. So far and today, government has done everything involving OneOhio — from appointing board members to organizing the meetings to holding the first meeting in an Ohio Department of Public Safety meeting room to keeping the public away from OneOhio.

The “this isn’t government” claim is likely to fail because everything about OneOhio has been government, government, government, and nothing has been private sector. Indeed, on Monday it was government employees keeping the private sector out of a OneOhio board meeting in which almost all the board members were also government employees.

But what if the government is correct? What if, despite all appearances, this meeting really is just a private foundation holding a private meeting at the Ohio Department of Public Safety?

Section D: Please don’t look

The OneOhio settlement agreement that establishes the OneOhio foundation has details on how the board is structured, how the executive director ail be chosen, how votes will occur…and how the foundation will be covered by Ohio open meetings and public records law.

In “Section D – The Foundation,” Paragraph 13 states: “Meetings shall be open, and documents shall be public to the same extent they would be if the Foundation was a public entity.”

We will repeat and add emphasis: “Meetings shall be open, and documents shall be public to the same extent they would be if the Foundation was a public entity.”

This section is designed to make OneOhio transparent and trusted. Making sure OneOhio is covered by open meetings and public records law was so important that Paragraph 13 also says: “the (Foundation) Board may clarify any other provisions of this MOU (Memorandum of Understanding) except this subsection.”

In other words, this is the only part of the OneOhio settlement agreement that cannot be changed, ever. The OneOhio agreement lets the foundation board change almost everything else — such as ethics guidelines and accounting rules. But when it comes to open meetings and public records, OneOhio must follow state law with no exceptions.

The sooner the transition is made from government-to-private foundation, the better. But, today, we’re not even close to that stage. And, when it comes to open meetings and public records, the transition is irrelevant. It is a distinction without a difference, as the lawyers might say.

OneOhio must follow open meeting and public record laws regardless of whether it is labeled a public or private entity. There is no space in which OneOhio and its operators (state or private) can do as it pleases.

When government hides what it’s doing

When government tries to shield its actions from the public, what does that usually tell you? That things are going great? Or the opposite?

The state is trying to keep the public away from OneOhio because the state has bungled implementation — and open meetings requirements, in particular –in ways that may force the state to start over.

OneOhio’s 29-member board includes 19 regional appointments. (The other board members are appointments by state officials.) Very few regional board members have been appointed to the OneOhio Recovery Foundation board during open meetings.

OneOhio regions operate at both the county and regional level. For example, Harm Reduction Ohio is based in Licking County, which is part of the seven-county Region 18.

Harm Reduction Ohio contacted the Licking County commissioner in charge of choosing members of the Licking County’s OneOhio board, which would be involved in selecting the Region 18 member on the state board.

The county commissioner told Harm Reduction Ohio on April 4 that he would tell Cauchon (Harm Reduction Ohio’s president) when the county’s committee would meet to choose a representatives to the regional board. We were never informed of such a meeting and, despite our efforts, could never learn anything about the Region 18 board — not its members, when it was meeting, who was being considered for the state board, or who was selected.

The potentially fatal problem OneOhio is that there is only one remedy to open meeting violations:  invalidation of all decisions made at the meetings.

In other words, regional OneOhio board member appointments made in violation of open meetings law are null and void.  As the Attorney General’s Yellow Book says:

• “A resolution, rule, or formal action of any kind is invalid unless a public body adopts it is an open meeting.”
• “When a public body takes formal action in a meeting for which is did not properly give notice, the action is invalid.”

Appointing a member to a OneOhio regional board is a formal action, just as appointing a person to the Planning Commission. A regional board appointing a member to the state OneOhio foundation state board — in violation of open meetings law — also invalidates those appointments.

OneOhio’s big problem…and how it may be for the best

This is the real reason the state is making the specious claim that today’s meeting was not required to be an open meeting. The state and the many local officials trying to get OneOhio going has treated the process as if it is exempt from state law and the OneOhio agreement. It is not.

The state has bungled the creation of OneOhio. It has not involved the public or the impacted population. Its specious claim that it is exempt from open meeting and public records law is an effort to hide the sad truth: a good agreement has gone awry through poor execution.

OneOhio is still young. Today’s problems can be fixed… if the state acknowledges its problem and enlists the help of the impacted population and the thousands of Ohioans working to stop the overdose epidemic.

The ubiquitous open meetings violations may be Ohio’s lucky break. It’s an opportunity to start the OneOhio process over with a better understanding of how to do it right.  Everyone wants OneOhio to succeed. If the state does not welcome the public and those impacted by the opioid crisis into the OneOhio process, an agreement that looked good on paper will fail and cost many good people their lives.