The Ohio Court of Claims has ruled the city of Upper Arlington lacked standing to withhold a portion of an audio recording from a January public meeting.

Court of Claims Special Master Jeffery Clark ruled May 25 that Robert Foulk had state law on his side when he said city officials couldn't redact approximately 14 minutes from an audio recording of Upper Arlington City Council's Jan. 10 retreat.

The audio in question was made public by council April 10 after Foulk asked the Court of Claims on Feb. 6 to force its release. Council's action rendered that part of the complaint "moot," Clark said.

However, Clark said, Foulk "established by clear and convincing evidence that the redacted portions of the audio recording of the Jan. 10, 2017, meeting of the Upper Arlington City Council were public records to which no exception applied."

Moreover, Clark ruled Foulk was "denied access to all requested public records within a reasonable period of time" and ordered the city to reimburse Foulk's $25 fee for filing the court complaint.

"Once again, the city has chosen to retain high-priced, outside legal counsel at great taxpayer expense to advance a meritless legal case," said James Becker, an attorney for Foulk. "The court resoundingly rejected all of the city's claims relating to the ... audio tape, finding that there was no attorney-client privilege that existed to justify the city's action."

Becker was referring to Foulk's case and $65,822.05 in expenses the city incurred for outside legal representation in an Ohio Supreme Court case last fall.

In the latter, Omar Ganoom, who also was represented by Becker, successfully argued that the city must hold an election to fill a council seat vacated by Mike Schadek, rather than permitting the remaining council members to appoint a replacement.

Ganoom won the case but ultimately lost the election to Sue Ralph, who had been appointed by council to fill the seat.

Case versus cost for
outside legal counsel

For 2017, council appropriated $770,100 to the City Attorney's Office, which includes an annual base salary for City Attorney Jeanine Hummer of $139,622. Council also gave her a 10-percent retention bonus worth $13,962, per her contract.

In April, city Community Affairs Director Emma Speight said legal help was hired in the Foulk case on Hummer's recommendation because the city attorney participated in the Jan. 10 council retreat and the discussion that initially was redacted.

According to information provided by the city after a public-records request from ThisWeek Upper Arlington News, the city paid $7,323.55 to the law firm of Isaac Wiles for outside legal services in the Foulk case, as of June 1.

"There is a 'not to exceed' amount made part of the retainer agreement that is in the amount of $13,500," Hummer said. "We don't expect to spend that amount."

Compliance, ruling
and 'moot' decision

Council voted 4-2 to release the redacted audio April 10. David DeCapua was absent from the meeting.

The vote came after each of the other six members maintained the 14 minutes in question could be withheld because they involved discussions subject to attorney-client privilege.

Councilman Brendan King and council President Debbie Johnson opposed releasing the audio, with Johnson issuing a statement that said doing so was "contrary to the short-term and long-term best interests of the city of Upper Arlington and its residents" and that the Court of Claims lawsuit was 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."

In his ruling, Clark said "attorney-client privilege never applied to the withheld portions," and thus the city "violated the requirement of timely production by failing to produce the withheld portions within a reasonable period of time."

He also noted the disputed conversations occurred in front of Martin Jenkins, who was hired by the city to serve as a facilitator at the retreat, and that attorney-client privilege couldn't apply when officials discussed the matter in the presence of a "non-essential" third-party.

Hummer said council "voluntarily released the full audio recordings" prior to Clark's May 25 ruling "out of concern for transparency."

"Since City Council already agreed to turn over all the audio recording that exists, again the effect of this decision is moot," Hummer said. "This decision is new law on a very unusual set of facts.

"No Ohio court has ever held that a city council can't get confidential advice from its attorney at a council retreat where no member of the public was present. The special master determined legal advice can't be held in confidence since it was a public meeting, even though no members of the public were present."

Beyond 14 minutes
of audio in question

Foulk's complaint also asked the court to determine if the city had withheld additional audio because meeting minutes indicated the council retreat lasted for five hours and 25 minutes, but even after the 14 minutes of redacted audio was released, only four hours and 23 minutes were accounted for.

Clark noted City Clerk Ashley Ellrod acknowledged she didn't record the beginning of the Jan. 10 meeting because she was distracted by setting up for the meeting. Clark ruled that Foulk failed to prove the city withheld additional existing audio.

Hummer said Clark's decision made clear Foulk "was incorrect in his false allegation that the city withheld any of the additional audio recording."

The 14 minutes initially redacted from the public record included a conversation about the city's February decision to outsource its 911 dispatching services to the Dublin-based Northwest Regional Emergency Communications Center.

Hummer noted in that portion of the recording the city could allow City Manager Ted Staton to approve the move himself, which would preclude the action from being overturned by a ballot initiative or referendum.

Council ultimately supported a motion to direct Staton to contract with the NRECC, as opposed to approving a resolution or ordinance.

After the Court of Claims ruling, Foulk was pleased but remained "incredulous" the city ever asserted the Jan. 10 discussion could be withheld.

Foulk also said city taxpayers are shouldering costs for outside legal help, which he called a recurring and completely inexcusable waste of public money."