City to review board’s closed-door policy

Experts question Dayton appeal board process.

The Dayton Citizens’ Appeal Board has repeatedly held “public sessions” in a locked facility, which some legal experts said violate the state’s Open Meetings Act if the board is a public body.

Some experts who specialize in open government said the appeal board is probably – but not definitely — a public body as defined by the state’s Sunshine Laws. Public bodies must take official action or deliberate on official business in an open meeting in which members of the public can attend and observe.

Dayton officials contend the board is not strictly a public body and all cases before the board only involved executive session action, which is not subject to open meeting requirements. After Dayton Daily News inquired about the board, those officials said they will review and implement procedures to ensure public access to meeting locations.

But the appeal board was designed to review and evaluate complaints against law enforcement from community members, some advocates for open government said. Holding meetings behind locked doors does looks bad for a group that is supposed to contribute to government transparency and accountability, they said.

“By conducting closed-door meetings, the review board is basically cutting the people and the media out of the process, and that only serves to sow more distrust among the public,” said Mike Brickner, public policy director with the ACLU of Ohio.

The doors to Dayton City Hall were locked at 6:20 p.m. March 11, shortly before the Citizens’ Appeal Board held a public session in a conference room on the building’s third floor.

City Hall closes at 5:30 p.m. and its doors are then locked, except when the Dayton City Commission has an evening meeting, which occurs some Wednesdays.

Appeal board meetings are typically held on Tuesdays or Thursdays at 6 p.m.

City staff members hold open the doors to the building until appeal board members arrive. The doors are then closed and locked to the public.

The board has met 10 times since September 2005, and no outside visitors stopped in.

Public meetings must be held in venues that are accessible to the public, said Dennis Hetzel, executive director of the Ohio Newspaper Association.

“I can’t imagine any court upholding a body holding a public meeting behind locked doors,” he said. “It would seem to violate both the intent and spirit of the law, and it needs to stop.”

The Ohio Sixth District Court of Appeals ruled in 2002 that Sylvania Twp. trustees violated the Open Meetings Act because they held a public meeting in the township hall and the facility’s doors were locked.

“Clearly, a meeting is not ‘open’ where the public body has locked the doors to the meeting facility,” according to the appeals court. “The only defense available to the public body when public access is denied to a public meeting is that the meeting is statutorily excepted from the public meeting requirement.”

Quasi-judicial boards, such as boards of tax appeals and state professional licensing boards, are statutorily exempt from open meeting requirements, officials said

Quasi-judicial boards require privacy to deliberate, evaluate and resolve disputes, and acting in these quasi-judicial capacities does not qualify as a meeting, meaning the Open Meetings Act is not applicable, according to the attorney general’s Sunshine Laws manual. Quasi-judicial proceedings conducted by public bodies are also not subject to the open meetings law.

Brent McKenzie, Dayton’s deputy director of human resources, said he does not believe the appeal board is a public body, because it lacks authority to discipline employees and change internal affairs’ decisions.

The appeal board was established by city ordinance to provide civilian oversight to the Dayton Police Department by reviewing complaints that have been dismissed by the internal affairs bureau, McKenzie said.

The board cannot change or make a recommendation to discipline an employee. The board only decides if it agrees or disagrees with the police department’s internal investigation.

The board, however, can hold a hearing to listen to testimony from the complainant. The board also has the authority to subpoena witnesses. The board then submits its findings and recommendations to the city manager.

In 14 years or longer, none of the appeals have resulted in a hearing, McKenzie said.

He said people who attend the board’s public sessions would only be able to hear a vote on the appeals, because the complaints are reviewed and discussed in executive session.

The appeal board is not strictly a public body, though the city has tried to operate the board in accordance with open meetings guidelines, said Bryan Taulbee, city spokesman.

“All cases before the board have involved executive session action only, which is not subject to open meetings requirements,” he said.

Executive sessions are exempt from open meeting requirements, but public bodies may not vote or take official action in executive session.

Ohio law also says that public bodies may only hold executive sessions at regular or special meetings, and a meeting that includes an executive session must always begin and end in an open session. The only exemption would be if the board is quasi-judicial.

A judge would likely conclude that the Sunshine Laws apply to at least some of the appeal board’s duties, and possibly even duties that appear to be quasi-judicial, said David Marburger, a partner with BakerHostetler in Cleveland and co-author of “Access with Attitude,” which analyzes Ohio’s open government laws.

The board appears to make findings based on arguments and evidence potentially advanced by adversaries in hearings, which could suggest it acts as a quasi-judicial body, at least for the purposes of those hearings and the matters underlying the hearings, Marburger said.

But the findings and conclusions have no firm consequences, which make it more likely that the Sunshine Laws apply, he said.

“Quasi-judicial would seem to require the findings to have some consequential result, such as employee discipline or firing or suspension or something like that,” he said.

Citizen review boards are supposed to improve the relationships between law enforcement and the communities they serve by providing residents with a forum for expressing their concerns and challenging police actions and decisions, said Brickner, with the ACLU of Ohio.

“Even ignoring the technical questions of whether or not they are a public body, for policy, of course you want them to be open and you want to have the media there,” he said. “If you don’t, it leads to more mistrust from the public and the suspicion that there is a government cover-up or corruption or something.”

The Open Meetings Act is enforced by civil litigation initiated by an aggrieved party, and litigants can seek a court order to require the offending organizations to comply with the law, officials said.

No litigation has been filed challenging the accessibility of the appeal board’s meetings.

City staff will review and enact procedures to ensure public access to meeting locations, even though the appeal board’s executive sessions will remain closed, Taulbee said.