The line between public issues and private decisions


By Gary Abernathy - gabernathy@civitasmedia.com



On Monday, The Times-Gazette filed a public records request with the city of Hillsboro for a tape recording made of an executive session conducted by city council on Dec. 2, 2016.

Admittedly, it’s a unique request, primarily because executive sessions are generally accepted to be private meetings where, under Ohio law, governmental bodies can discuss a number of specific items outside of the public’s eyes and ears.

In executive session, no votes are allowed to be taken, and the discussion is strictly limited to the topic announced as the subject of the closed session. Without the media or anyone else present (unless certain individuals are invited to take part), whether those rules are followed is strictly up to the participants in the meeting.

While the topic of executive sessions are typically described only in vague terms – in this case the pre-meeting notice said the subject would be to discuss a “personnel issue” — it is widely believed that the topic of the meeting was the decision to continue paying Todd Wilkin, the safety and service director who had been fired by mayor Drew Hastings about two weeks earlier.

As you’ll recall, the mayor fired Todd on Nov. 22, about two weeks after the conclusion of Drew’s trial, where two charges against him were dismissed by the judge, and he was acquitted by a jury of the remaining two charges.

Todd had been a key witness in the investigation and trial, and after his firing he filed a challenge to his dismissal, claiming protection under whistleblower statutes. That challenge was settled last week, with the city’s insurance company agreeing to pay Todd $82,500.

But shortly after his firing last year, the city law director, Fred Beery, instructed the city auditor to continue paying Todd’s salary. The mayor strongly objected to that decision, arguing that Todd served at the will and pleasure of the mayor and could be fired at any time, as had been the case for decades in Hillsboro. Drew argued that since he ordered Todd to be dismissed without further pay, that order should have been honored.

The reasoning behind the decision to continue to pay Todd – an arrangement that lasted well into January 2017 – has never been described in any comprehensive fashion. It was undoubtedly discussed at the Dec. 2, 2016 executive session.

The fact that the closed session was tape recorded has been acknowledged by several of those in attendance, including council president Lee Koogler, who made the decision to record the meeting.

While executive sessions are considered private, in this instance I believe there are several factors which make the Dec. 2 meeting an exception, especially now that negotiations with Todd have concluded. Those factors were spelled out in my lengthy records request made on Monday.

Most of my arguments were based on the manual published annually by the office of the Ohio Attorney General, the most recent called “Ohio Sunshine Laws 2017,” sometimes referred to as the “yellow book.” Without going into the entire text of the four-page records request, the key points can be summarized as follows:

• The decision to create an audio recording of this executive session was an extraordinary act not typical of executive sessions of city council, and the discussion and decision to do so, behind closed doors, makes the recording itself a public document.

• The attorney-client privilege that might otherwise exist between the law director and city council was voided in this case since the law director had also been advising Todd Wilkin, even at one point back in May 2016, according to Todd’s lawyers, assuring Todd in an email that his status as a whistleblower was “accepted and acknowledged,” long before Drew was even indicted, let alone tried. It is untenable that Fred could both assure Todd that he was acknowledged as a whistleblower while still continuing to represent the city. In other words, you can’t be the lawyer for both sides.

• If the law director was seeking ascent or approval from council in executive session to take the course of action he was taking in regard to continuing to pay Todd, this amounts to a vote of city council, even if a formal roll call was not taken. Even a decision not to take action has been deemed by courts to be an action that should only occur in open session.

• In another executive session in mid-January 2017, Fred sent an email finally ordering Todd’s pay to be ended, saying the decision was “based upon consultation with and advice from special counsel for the city,” explicitly acknowledging that outside counsel, not Fred, was representing the city, further eroding any claim that the Dec. 2 executive session is protected under attorney-client privilege. (Yes, special counsel was already in place by Dec. 2).

I have great respect for everyone involved, from Fred Beery to Lee Koogler to Drew Hastings (as well as Todd Wilkin, although he has no direct involvement in this specific issue). This records request is not intended to imply intentional wrongdoing on anyone’s part. Reasonable people can disagree on this subject.

But the Ohio Sunshine Laws manual states that “in enumerating very narrow, specific exceptions to the public records statute, the General Assembly has already weighed and balanced the competing public policy considerations between the public’s right to know how its state agencies make decisions and the potential harm, inconvenience or burden imposed on the agency by disclosure.”

In this case, I believe that the public’s right to know how and why its city government made the decision to continue to pay Todd after he was fired — including questions involving the separation of powers, the use of tax dollars, and past and future precedent — is well worth exploring and attempting to explain.

I believe the tape recording of the Dec. 2, 2016 executive session could shed considerable light on the subject, and its value to the public substantially outweighs any harm to the city in releasing it.

Reach Gary Abernathy at 937-393-3456 or by email at gabernathy@aimmedianetwork.com.

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By Gary Abernathy

gabernathy@civitasmedia.com