SHIPWRECK ALERT: The OneOhio opioid settlement disaster, Part 2

OneOhio board to meet again Thursday

How did things go so wrong so fast?

The OneOhio Recovery Foundation, which will spend 55% of Ohio’s $1 billion opioid settlement, has scheduled its second board meeting from 9 a.m. until noon, Thursday, June 23rd at the County Commissioners Association of Ohio offices, 209 East State Street in  Columbus.

This meeting is noteworthy because the foundation and Gov. Mike DeWine’s office are claiming that the OneOhio foundation — contrary to Ohio law and the plain language of the OneOhio agreement (see below) — is not covered by the Ohio Open Meetings Act or the Ohio Public Records and is thus entitled to operate in secrecy. Harm Reduction Ohio provided a detailed article of how the OneOhio foundation banned the public from its first meeting on May 16.

(To be accurate, the foundation banned only certain members of the public — people who lacked political connections, such as those representing the impacted population. They welcomed select government officials and connected members of trade associations, plus a few media members who’d come to take picture of the governor explaining what a great idea the foundation was. Equality under the law? Not in Ohio when the government can claim that a faux “private foundation” means government officials can prepare to spend a half billion dollars in secret.)

Harm Reduction Ohio challenges OneOhio Secrecy

Harm Reduction Ohio (HRO) hired a lawyer who specializes in open meetings issues to challenge this ridiculous claim that OneOhio doesn’t have to follow open meetings or public records law. On June 9, the lawyer sent a letter to the foundation’s lawyer expressing concerns about the open meetings violations. As of today (June 19), the foundation’s attorney hasn’t even acknowledged receiving the letter, much less addressing the merits of it.

Ohio law requires that public notice be provided for public meetings that are covered by the Open Meetings Act, including to everyone who has requested they be notified. On Thursday, June 16, at 5:48 p.m., foundation attorney Holly Gross emailed me to notify me of the time, date and location of the meeting (as shown above).

I thanked her and asked: “Is it agreed now that this is an open and public meeting? Or am I going to be blocked from getting in again?”

She responded: “We want to make sure it is clear that members of the public have two options for attending the upcoming board meeting – either in-person or virtually.”

Technical Translation: The foundation doesn’t dare keep the public out again….but it won’t agree that it must follow Ohio law and the MOU and make its meetings public. This is a small step forward but not close to enough. By refusing to admit the foundation is covered by open meetings law, the foundation is saying they are letting the public in as an act of generosity. Harm Reduction Ohio disagrees. The public has a clear and unambiguous legal right to attend these meetings. Public access to meetings is not a privilege granted sometimes and sometimes not by our overlords.

Further evidence that the OneOhio Recovery Foundation thinks it can flagrantly disregard open meetings law is an agenda that shows a bunch of things will be approved Thursday by the full board after being worked out by “Working Groups.” What?

I requested notice for all committee and subcommittee meetings…and received none. So, in theory, none should have occurred. For forty years, Ohio courts have swatted down attempts to avoid open meeting laws by giving meetings different names, such as work sessions, working groups, advisory committees, etc. The foundation’s efforts to employ legal acrobatics to shut out the public from influence (or even watching) OneOhio in action is not pretty and our elected officials (including Gov. DeWine, Attorney General Dave Yost, the many county commissioners on the OneOhio board) should hold themselves to higher standards of transparency.

The public record went that-a-way

In a video of the last meeting, Gov. DeWine’s top drug policy person, Aimee Shadwick, interim director of the governor’s RecoveryOhio effort, said she would poll members on the board to see who was interested in being on various committees. I made a public records request to find out who had expressed interest in what boards and who had been assigned to what roles. The governor’s office responded that no such records existed — in other words, Aimee had never done the poll or survey of board members, as she said she would.

Now that it appears someone did a survey, work groups were formed and came up with things for the full board to approve Thursday, the obvious question is:

• Who did the survey?
• Wouldn’t it have been reasonable to say who did the survey instead of lawyerly stonewalling: No records responsive to your request.

The foundation is playing a cynical game of Whac-A-Mole to shield its actions from public scrutiny. Is this how people proud of their actions behave?

What’s being done In secret?

The actions being hidden from public scrutiny are important. According to the draft Agenda, the Working Groups will make reports advising the full board on taking action to:

• Adopting a “Code of Regulation,” i.e., by-laws for how the foundation will operate
• Hiring a search firm to recommend an executive director.
• Creating a plan to hire an independent financial advisor.

All those are important things that need to be done…but not in secret, not hidden from the public.

The foundation’s pattern of behavior is clear. The OneOhio Recovery Foundation thinks it’s a private club and that, notwithstanding $500 million in government funds that will flow in over18 years, that the supposedly private foundation can operate as if it’s none of the public’s damn business who’s on the board, what the board does or how the board operates. Don’t worry, the governor’s PR person will tell us everything we need to know. Now, sit down and shut up.

This is no way to spend a half billion obtained because 40,000 Ohioans died of accidental overdoses since 2010. The beautiful Ohioans who lost their lives and those who grieve for them did not suffer life-changing heartbreak so county commissioners and township trustees, who have negligible experience in overdose prevention — that’s the job of health departments and mental health boards — can get a slush fund to direct money to connected people and organizations who maybe, perhaps, possibly can make some kind of difference.

OneOhio records request

To be informed about what may happen at Thursday’s meeting, Harm Reduction Ohio filed a public records request to obtain in advance material provided to the board. The request was sent to OneOhio Provisional Board Chair Kathryn Whittington, an Ashtabula County Commissioner, and others to limit the foundation’s ability to dodge providing the information by saying someone else had it. Under Ohio law, a public records request made to any board member is sufficient for it to be legally valid.

This is the OneOhio records request:

The email with the public records request has additional details on the problems at OneOhio and is worth reading for those interested in how Ohio’s opioid settlement has gone off track.

 

What does Ohio law and the OneOhio MOU say?

The OneOhio opioid settlement was not designed for this. The OneOhio settlement had a great idea: direct 55% of the opioid settlement into a private, tax-exempt 501(c)(3) foundation guided loosely by a panel of experts. (The other 45% goes to the state and local governments.) Section 3 of the OneOhio MOU states:

The parties shall create a private 501(c)(3) foundation (“Foundation”) with a governing board (“Board”), a panel of experts (“Expert Panel”), and such other regional entities as may be necessary for the purpose of receiving and disbursing Opioid Funds, and other purposes as set forth both herein and in the documents establishing the Foundation.

Harm Reduction Ohio has been a strong supporter of the private foundation and had spoken favorably about Ohio’s design to local and national media. My optimism and trust was a mistake. The “private foundation” has been hijacked and turned into a government enterprise at every level. There is nothing “private” about the foundation and that’s why the foundation’s attorneys are worried that the IRS will reject its 501(c)(3) application. (See the email sent below for some further details of how the foundation may try to use political connections to lean on the IRS to get approval that’s not deserved.)

Open Meeting and Pubic Record Requirements

Providing further comfort that a OneOhio foundation was a good idea was the MOU clear and unambiguous requirement that the foundation, private or not, operate in a transparent manner and follow open meetings and public records law. Section 12 of the OneOhio MOU, signed by the governor and attorney general and approved by 2,000 local government, says:

The Foundation, Expert Panel, and any other entities under the supervision of the Foundation shall operate in a transparent manner. Meetings shall be open, and documents shall be public to the same extent they would be if the Foundation was a public entity.

The idea was the OneOhio foundation would be the best of both worlds. It would be smart, flexible and have lower overhead costs while being fully transparent. Instead, the foundation is a shipwreck that, to date, contains worst of both worlds. It operates with low efficiency and limited creativity of governments while claiming it’s a private club not required to tell anybody anything.

Today, the shipwreck that is the OneOhio opioid settlement has given out no money. Still stuck in the bureaucracy. (Surprised?)

The OneOhio foundation is a governmental enterprise — a “public body” under the Open Meetings Act, a “public office” under the Ohio Public Records Act and an “integral part of government” under federal tax law. The foundation doesn’t have any employees, offices, a web site or a 501(c)(3) application pending, so none of these issues has been officially adjudicated yet.

To get important documents or a clear claim from the Foundation that it believes it is exempt from the Ohio Pubic Records Act, I sent a public records request that asked the foundation to directly state if it was not producing documents because it believed it did not. (Read the letter requesting public records here.)

Spending Settlement Funds To Protect Secrecy?

While it’s impossible to know what the foundation board is thinking in secret, I have talked to several board members and they seem understandably and thoughtfully concerned about the direction the USS OneOhio Recovery Foundation is heading. The actions of the foundation and the foundation’s lawyers suggest they plan to run up huge bills protecting the power and control of their clients (government officials) over $500 million in settlements funds.

To deplete opioid settlement money fighting to create a foundation that does not follow the MOU is nothing short of looting. Gov. Mike DeWine and Attorney General Dave Yost should both pledge that no settlement proceeds should be spent fighting the public or the news media trying to compel the foundation to comply with the open meetings law, public records requirements, Ohio law and the MOU. People died for this money. The purpose of the settlement is to save lives, not to finance a quixotic government quest to give county commissioners and township trustees a half billion dollars to fritter away on a subject with which they have no expertise.

Should legislature take over OneOhio?

If OneOhio continues in this disastrous and wasteful direction, the Ohio legislature should take over the money. It has a constitutional right to do so. The money would be better spent push through the Ohio Department of Health (and the state’s 120 local health departments) and the Ohio Department of Mental Health Addiction Services (and the state’s 5 mental health boards). These government agencies, while perhaps not super efficient, have considerable experience and knowledge working on the opioid issue.

County commissioners, township trustees and Ohio’s 1,500 municipalities have almost no experience working in reducing overdose death. These governments will already get 30% of the opioid settlement — and many have no idea how to spend the money. It’s foolishly wasteful to create a new mishmash of a local-state federal bureaucracy, especially when it is made up of governments that have a minimal connect with the opioid problem.  This makes as much sense as asking Harm Reduction Ohio, the state’s largest naloxone distributor, to oversee a fund to improve roads and stormwater ditches.

The OneOhio opioid settlement agreement is a good idea undone by disastrous execution. It is as pure an example of a “lack of leadership” as you’ll ever find. The governor’s office, in particular, failed to define the outcome desired (a private foundation) and the ethics by which it would operate (evidence-based, transparent, etc.) Instead, it told 2,000 local governments — counties, villages, cities, townships — to create a local, regional and state structure. The result was not one of the 19 OneOhio regions followed open meetings law when choosing members and creating boards. Instead, county commissioners and township trustees put themselves in control of the $500 million, along with some sheriffs, prosecutors, mental health board directors and a few “interested citizens.”

Not one of Ohio’s 88 counties or 19 regional boards let members of the public apply for positions — or even know that they could apply! It was all done in private, unannounced, as if it was a private club rather than a private foundation or a governmental enterprise.

Racial Bias: OneOhio Recovery Foundation

What was the result of this secretive, insular approach? Racial discrimination is one.

The 29-member OneOhio Recovery Foundation has only one Black member, a recently retired vice mayor of Cincinnati. In the current structure, the spending power resides almost entirely at the regional level. Currently, none of the 19 regional board members are Black.

Harm Reduction Ohio has worked to identify more than 100 members of Ohio’s regional boards. Only two of the 112 regional board members we have identified are Black.

This is beyond unacceptable in a state where overdose death rates is 40% higher for Black residents than for White Residents.  Last year, Black Ohioans accounted for 14% of our state’s population and 19% of overdose deaths.

Conclusion: Nothing About Us Without Us

When government operates as a private club, who gets excluded? You know the answer: The powerless, the stigmatized, the people who have darker skin and less money and fewer political connections. The impacted population of people who use/d drugs and died for this money — literally, died..for…this…money — and those who love them have been denied a seat at the table. Indeed, we can’t even get in the room.

Harm Reduction Ohio is proud to represent the people who died for this money. We are the people who died for this money. We did not leave the funerals of our friends and colleagues to be stigmatized and treated as trivial inconveniences for elected officials seeking to control a half billion dollars of what Harm Reduction Ohio director Jamie Decker describes accurately as “blood money — money that my friends died for.”

The current foundation, its lawyers and elected officials can continue its unseemly fight to protect a government agency pretending to be a private foundation entitled to operate in secret and exclude the people affected by the overdose crisis. But make no mistake: The OneOhio MOU will be followed. A true private foundation will be created. And we will not just be in the room, confined to siting quietly in the back of the room. We will not just have a seat at the table. We will be all around the table.

This is our foundation. We died for it, People we love died for it. We will not dishonor the memory of 40,000 dead since 2010 or the lives of 4,000 people who had overdoses reversed last year with naloxone shipped by Harm Reduction Ohio’s small staff.

We will be as harsh as truth and as uncompromising as justice. We come in earnest. We will not equivocate. We will not excuse. We will not retreat a single inch, and we will be heard.

  — Dennis Cauchon, President, Harm Reduction Ohio

Cauchon, a former national reporter for USA TODAY, founded Harm Reduction Ohio in 2017. The organization, a 501(c)(3) non-profit, is Ohio’s largest Project DAWN program and distributed 32,500 naloxone kits in all 88 Ohio counties in 2021. The kits were used to reverse several thousand overdoses.