Powell city leaders are standing by a proposal to expand City Council's right to meet privately, despite assertions that the proposition is on shaky legal ground.
Representatives of the Ohio Newspaper Association say a proposed charter amendment, which would expand the rights of Powell city officials to discuss matters in private executive sessions, could open the door to abuse.
"This might be the worst open-meetings language I have ever seen," said Dennis Hetzel, executive director of the Ohio Newspaper Association, a state trade group that represents Ohio newspapers. "It clearly violates the spirit of Ohio's open-meetings law, which only allows closed meetings under very specific circumstances.
"This is an open-ended invitation to deliberate about anything in secret any time two-thirds of the council wants to do it," Hetzel said. "This language essentially makes council immune from scrutiny whenever it wants to be immune from it. That is the opposite of what the open-meetings law was designed to do and the opposite of the intent of the charter language."
The amendment is one of seven Powell charter amendments set to be placed on the ballot in May or November; a final ballot date has not been chosen. All seven amendments were approved for the ballot at a Feb. 5 council meeting.
The amendment governing executive-session rules would make way for council to identify additional grounds on which discussions can remain confidential. Mayor Richard Cline said it would give council more flexibility to negotiate economic-incentive deals with companies interested in moving to Powell, among other potential uses.
If it's approved by voters, council could enter executive session to discuss an item if five out of seven council members agree it's necessary.
Cline maintains the proposed changes are legal and preserve transparency. Decisions to enter executive sessions would be publicly debated and could be overturned by referendum, he said; all votes ultimately must be made in a public meeting.
"I think there are sufficient safeguards in place to maintain transparency," Cline said. "To get a topic on the list, you have to convince the majority of council that it's appropriate to discuss in executive session. It's not going to happen on a whim."
State law dictates city matters must be aired in open meetings except when specific types of private information is being discussed.
According to the 2009 Ohio Sunshine Laws, there are eight reasons the state allows governmental bodies to go into executive session: discussion of personnel matters; property purchases; litigation; bargaining matters; security; hospital secrets; veteran services; and other matters required to be kept confidential under federal or state statutes.
Because Powell's government operates under a charter, the Ohio Constitution allows officials to change some of the state's provisions in the Open Meetings Act.
In neighboring communities such as New Albany, officials recently declared economic-development issues appropriate for private meetings. That puts Powell at a competitive disadvantage, Cline said.
But Powell's proposed amendment does not identify which categories of discussion would be fit for executive session. Instead, it would give council power to declare matters private at any time by a two-thirds vote.
The ballot language reads: "All meetings of the Council shall be open to the public subject to the right of Council to meet, but not take action, in a non-public executive session held during a regular or special meeting as permitted by the laws of the State of Ohio or as Council may further provide by ordinance for matters declared in such ordinance to require confidentiality, which ordinance shall be adopted by the affirmative vote of not less than two-thirds of all members of Council."
Attorney Louis Colombo, who provides legal counsel to the Ohio Newspaper Association, said he questions whether such an amendment would be deemed lawful by a court.
"I question whether a charter could legally delegate this authority to make ad hoc decisions, guided by no principles, on such matters to council," Colombo said via email.
Hetzel said if a court ruled it to be legal under Ohio law, the association would seek to have the law changed. He added he would urge voters to challenge the issue.
But Powell City Attorney Gene Hollins said the open-ended nature of the amendment is not only legal, it's sensible.
"It's tough to sit down and list in a charter in very specific, clear terms every time a matter that requires confidentiality might arise," he said.
Councilwoman Sara Marie Brenner was the only council member to vote against the proposed amendment, citing concerns over transparency. This week, she reaffirmed those views.