Upper Arlington City Council members maintained on April 10 they had the right to withhold 14 minutes of recorded discussion from a Jan. 10 retreat, but they voted 4-2 to release the audio on the city's website.
That portion of audio from the retreat is the subject of an open-records complaint filed by resident Robert Foulk in the Ohio Court of Claims. The case will remain pending, despite council's action April 10, because Foulk also has asked the court to determine if additional audio and portions of transcribed minutes from the meeting have been withheld.
Several council members said they still believe the previously withheld portion of the recording is not subject to Ohio's public-records laws because it involved a discussion about a legal matter with City Attorney Jeanine Hummer.
Council Vice President Kip Greenhill and Councilman John C. Adams noted the city voluntarily posts audio recordings of all council meetings to ensure transparency of city business and to increase access to the public.
They said they believe attorney-client privilege is an important right for the city and that the audio in question qualifies. But they agreed to release it because the discussions occurred in a public meeting, not during a closed-door executive session, a procedure that bars the public from discussions of certain topics, including litigation or pending litigation.
"The nature of what we talked about was not the issue for me," Adams said. "It was where we talked about it. If it's in an open meeting, we should provide it."
City public-affairs director Emma Speight said the formerly redacted portion starts about two hours and 40 minutes into the meeting.
Councilwomen Sue Ralph and Carolyn Casper said the case was costing the city too much money and taking its focus away from important business.
Greenhill and Adams said Monday night, April 10, they did not know how much the city has paid to defend itself against the public-records lawsuit. Casper said Tuesday afternoon, April 11, that her remarks referred to the time and resources that have gone into the case, in addition to the fact that attorney Mark Weaver is being paid as outside counsel. Casper said she did not know how much Weaver is being paid.
In response to a public-records request from ThisWeek Upper Arlington News, the city provided a copy of a Feb. 8 letter to Weaver, informing him that the city would retain his law firm, Isaac Wiles Burkholder & Teetor LLC, as special counsel. The letter states attorneys would be paid "an agreed upon rate of $215 per hour for partners and of counsel attorneys and $185 per hour for associates not to exceed $7,500."
The city also provided a copy of an invoice from Isaac Wiles for billing through Feb. 28. It lists a "balance brought forward" of $3,566.20 that was reduced to zero because of an accounts-receivable adjustment and a total balance due of $3,217.20 in new fees charged.
Council President Debbie Johnson and Councilman Brendan King voted against releasing the additional recording.
Johnson read from a prepared statement in which she said the release of the recording is "contrary to the short-term and long-term best interests of the city of Upper Arlington and its residents."
She also said the lawsuit against the city in the Ohio Court of Claims is being pursued by "the same group of disaffected individuals who've been behind every negative that's occurred recently in this community."
"Their tactics are not open and civil discussion, but yelling louder, intimidation and bullying," Johnson said. "I fear that by enabling them by waiving the privilege now, while possibly saving defense costs in this case, we will increase future costs to the city for all of the anti-UA actions this group pursues in the future."
Foulk argued in his lawsuit that although no members of the public attended the retreat, discussions that occurred there should be part of the public record because council did not call for an executive session.
The two sides presented their arguments to an Ohio Court of Claims special master after a March 21 mediation failed to bring a resolution to the case. The special master, Jeffery Clark, is charged with deciding if the redacted portion of the recording should be made public.
Council's action April 10 came after Clark granted a request by Foulk's attorney, James Becker, to require Upper Arlington to give the redacted portion of the recording to the court so Clark could determine if the withheld conversation qualifies as attorney-client privilege.
Foulk said council's action to release the audio is an acknowledgement that a review by the court would have revealed that the city's claim of attorney-client privilege "would not have been supported by the redacted material. And once again, we taxpayers have paid high dollar in pursuit of an unjust position framed by the city attorney," he said. "There was clearly no lesson taken by the embarrassing rebuke of last year's effort to keep an open council seat off the ballot."
Foulk was referring to Omar Ganoom's successful challenge in the Ohio Supreme Court of the city's stance that it could fill a City Council vacancy with three years remaining on a term by appointment.
Ganoom won that case in court, forcing an election, but was defeated by Sue Ralph, whom council had sought to appoint to the seat.
The link to the recording on the website states, "The city has chosen to post a redacted portion of the audio recording from the council retreat held on January 10, 2017. The redactions involve attorney-client privileged information."