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Analysis: Charter amendments flawed on many counts

By Charles Prince

BUCKEYE LAKE – Some Buckeye Lake Village voters are probably wondering if they need to risk permanent eye strain to read the tiny print on the Village Charter amendments.

Many of us have been warned to read the ‘fine print’ and reminded that the ‘the devil is in the details.’ That’s good advice, but thankfully not necessary in this case. Oh, there are some real bombshells in the proposed amendments, but the amendment process has been fatally flawed from the beginning. Still the easiest fix is to simply vote “NO.”

But in the unlikely event that voters don’t mind giving up their required consent to impose a one percent income tax on all income including retirement income, it will only take a petition signed by 25 voters to contest the approval in Licking County Common Pleas Court. It won’t be a tough decision there as Buckeye Lake’s charter amendment process has violated the Ohio Constitution, several sections of the Ohio Revised Code and an Ohio Attorney General’s Opinion.

Let’s start from the beginning. Council’s unanimously approved meeting minutes from their January 14, 2019, meeting include:

“Council Clerk Hans passed out ballots for the Charter Review Commission. Council members were instructed to vote for no more than 5 people. Council Clerk Hans collected the ballots when the members were finished voting. After tallying the results there was a 4 way tie for the fifth member of the Charter Review Commission. Council Clerk Hans passed out a tie breaking ballot for each council member to vote for one person. Those ballots were collected as well. Council Clerk Hans announced the result (sic) of the voting. The 2019 Charter Review Commission are as follows: Clay Carroll, Linda Goodman, David Ruton, Tim Ryan and Kelly Spangler-Braithwaite.”

The use of secret ballots violates ORC 731.17 that states “(3) The vote on the passage of each ordinance or resolution shall be taken by yeas and nays and entered upon the journal.” While some may contend that appointing the Charter Review Commission isn’t specifically an ordinance or resolution, an Ohio Attorney General’s Opinion (2011-038) eliminates any ambiguity about the use of secret ballots.

That opinion states “a meeting is not “open” to the public where members of a public body vote by way of secret ballot. “Voting by ballot is rarely, if ever, used in legislative bodies, because the members vote in a representative capacity and their constituents are entitled to know how their representatives vote.” Mason’s Manul of Legislative Procedure § 536 (rev. ed. 2000) (emphasis added). Voting by secret ballot prevents the public from knowing how each of the members of a public body votes on a particular matter. See Black’s Law Dictionary 143 (6th ed. 1990).”

Council’s use of secret ballots to select members of the Charter Review Commission was likely done to allow council member Arletta Ruton to vote for her husband, David Ruton, without the public knowing. With a public vote, she would be expected ethically not to vote for her husband. No one else on council had a spouse or family member seeking an appointment to the Commission that could substantially increase the authority/power of a council member.

Opinion 2011-038 concludes: “The current state of that jurisprudence persuades us that RC 121.22’s “liberal construction” mandate should be applied to the method of voting used by the members of a public body in taking formal action at an open meeting. Voting by secret ballot is at variance with the purpose of the open meetings law and only denies the people their right to view and evaluate the workings of their government. Accordingly, a public body that is subject to the requirements of the Ohio open meetings law may not vote in an open meeting by secret ballot.”

Buckeye Lake Village Council is clearly subject to the requirements of the Ohio Open Meetings Law. ORC 121.22 (H) states “A resolution, rule, or formal action of any kind is invalid unless adopted in an open meeting of the public body.” Consequently, the appointment of the Charter Review Commission is invalid since the use of secret ballots violated the Ohio Open Meetings Law. An invalid Charter Review Commission can not propose Charter amendments since it doesn’t legally exist.

And there’s more, plenty more. The invalid Charter Review Commission and Village Council decided not to ask the Village Solicitor to review the proposed amendments. We suspect their motive was to avoid any legal opinion stating or suggesting that any of the proposed amendments are unworkable, contrary to Ohio law, or just plain foolish. We strongly believe all three – unworkable, contrary to Ohio law and plain foolish – are applicable, some many times over. The proposed amended Charter and the ordinance provided to the Board of Elections didn’t include an effective date. Consequently, voters haven’t been given enough information to make an informed decision. Is it effective when the Board of Elections certifies the election results in late November, January 1, 2020, July 1, 2020 or some other date? No one knows, so it is another fatal flaw.

That’s two stakes through the heart of the proposed Charter Amendments. Soon, we’ll have enough for a whole row of tomatoes. Arletta Ruton and her supporters have quite a bit of difficulty with the Ohio Constitution. A couple weeks ago, she was still planning to take down some political signs because Buckeye Lake’s zoning regulation was enacted before the Supreme Court of Ohio unanimously ruled that duration limits on political signs on private property were unconstitutional. She was eventually talked down from that ledge, but still doesn’t seem to understand the Ohio and U. S. Constitutions plus any jurisdictional court decisions trump ANY Buckeye Lake regulations or ordinances.

The Ohio Constitution (Article XVIII, Sections 8 & 9) and ORC 731.211 states “the clerk of the municipality shall mail a copy of the proposed charter amendment to each elector whose name appears upon the poll or registration books of the last regular or general election held therein.” Though the Charter revision proponents had months to put together an accurate mailing list based on the registered electors in Buckeye Lake Village, that didn’t happen. Most of the mailing list lacked the necessary Post Office Box numbers required for mail delivery in Buckeye Lake Village. In spite of the Buckeye Lake Post Office staff’s best efforts to match names to post office boxes, more than 200 of the tiny print charters could not be delivered and were returned to the village office. Some addresses were corrected and they were mailed on October 10 and 11. That mailing failed the mailing deadline in ORC 731.211 of “(A) Not less than thirty days prior to the election at which the amendment is to be submitted to the electors…” October 10 is just 25 days prior to the election.

While some of the mailings met the statutory deadline, very few, if any, were addressed “to each elector whose name appears upon the poll or registration books…” as required by the Ohio Constitution and ORC 731.211. All or almost all were addressed to a “household” such as “family last name household.” That clearly doesn’t meet the “each elector” requirement.

While the Charter revision proponents or more accurately described power-grabbers will contend that they tried to meet requirements in the Ohio Constitution and ORC 731.211, “tried” doesn’t meet the “shall” requirements in both the Ohio Constitution and ORC 731.211.

At Tuesday evening’s Candidates Night, three of the seven candidates for four council seats supported the Charter amendments because, among a few other reasons, seven heads are better than one. Some of those “seven heads” failed miserably to meet the clear requirements outlined in the Ohio Constitution and ORC 731.211. Implementing an amended Charter that primarily replaces most references to the mayor’s authority and responsibilities with “council” is a much more difficult task. The resulting chaos will cost the village valuable employees, tens of thousands of dollars in legal fees and eat up months, if not years, of time that could be spent on making Buckeye Lake Village better rather than infighting in village council.

Thankfully, there is an easy fix. Vote “NO” on the Charter amendments and FOR the council candidates that don’t support the amendments – Don Cable, John Lemmon, Melissa Beard and Linda Goodman.

 

731.17 Passage of ordinances and resolutions.

(A) The following procedures shall apply to the passage of ordinances and resolutions of a municipal corporation:

(1) Each ordinance and resolution shall be read by title only, provided the legislative authority may require any reading to be in full by a majority vote of its members.

(2) Each ordinance or resolution shall be read on three different days, provided the legislative authority may dispense with this rule by a vote of at least three-fourths of its members.

(3) The vote on the passage of each ordinance or resolution shall be taken by yeas and nays and entered upon the journal.

(4) Each ordinance or resolution shall be passed, except as otherwise provided by law, by a vote of at least a majority of all the members of the legislative authority.

(B) Action by the legislative authority, not required by law to be by ordinance or resolution, may be taken by motion approved by at least a majority vote of the members present at the meeting when the action is taken.

Similarly, a meeting is not “open” to the public where members of a public body vote by way ofsecret ballot. “Voting by ballot is rarely, ifever, used in legisla­ tive bodies, because the members vote in a representative capacity and their constit­ uents are entitled to know how their representatives vote.” Mason’s Manual of Legislative Procedure § 536 (rev. ed. 2000) (emphasis added). Voting by secret ballot prevents the public from knowing how each ofthe members ofa public body votes on a particular matter. See Black’s Law Dictionary 143 (6th ed. 1990). Voting by secret ballot produces the same result as where public officials whisper or pass documents among themselves. Members of the public are prevented from knowing a critical part of a public body’s decision-making process. Voting by secret ballot is inimical to R.C. 121.22’s goals of enabling the public to know the actions of its ap­ pointed and elected representatives.

That an “open meeting” requires more than granting physical access to the meeting is further supported by the common understanding of the word “open.” Left undefined by statute, “open” must be “read in context and construed accord­ ing to the rules of grammar and common usage.” R.C. 1.42. “Open” has several definitions, all of which indicate that a meeting so qualified must be free from concealment in all its aspects. According to Black’s Law Dictionary 1117 (7th ed. 1999), “open” means “[v]isible; exposed to public view; not clandestine.” Similarly, Webster’s Third New International Dictionary 1579 (unabr. ed. 1993), defines “open” as “completely free from concealment. ” These definitions support the conclusion that all aspects of an “open meeting,” including final actions such as voting, must be “exposed to public view.” Voting by secret ballot is the antithesis ofthe definition of”open.”

With the exception of executive sessions, meetings of a public body must be open in all respects in order for the public to hold the public body accountable for its actions. If the votes of the individual members of a public body are denied public scrutiny, the public is unable to properly evaluate the decision-making ofthe2-309 2011 Opinions

OAG 2011-038

public body and hold its members responsible for their decisions. In addressing whether a public body is permitted to adopt rules for the conduct of its meetings, 1988 Op. Att’y Gen. No. 88-087 noted at 2-418 that R.C. 121.22 was meant to partially codify the public’s “right to know” what business takes place in govern­ ment proceedings. As explained in that opinion:

In the context of local governmental legislative proceedings the right to know is deeply-rooted: “Our American democracy is partly founded on the premise that the public has a right, yea even a duty, to oversee the decision-making procedures o f those who have been chosen to govern. A public, not given the right of government oversight, is an uninformed public. With such action, the very integ­ rity of the governing process is threatened. ” State ex reI. Plain Dealer Publishing Co. v. Barnes, 38 Ohio st. 3d 165, 169 (1988) (Douglas, J., concurring).

1988 Op. Att’y Gen. No. 88-087, at 2-419 (emphasis added).

The twin civic duties of overseeing governmental decision-making and holding public officials accountable for their decisions require that the governed possess and enforce a right to know not only why decisions are made (open delibera­ tions), but also the right to know the position and final vote of each individual official. “The statute that exists to shed light on deliberations ofpublic bodies can­ not be interpreted in a manner which would result in the public being left in the dark.” State ex reI. Cincinnati Post v. City ofCincinnati, 76 Ohio St. 3d at 544. Voting by secret ballot thwarts openness and denies the public the ability to hold members of a public body accountable for their decisions, thereby impeding the manifest intent and purpose ofR.C. 121.22.

 

 

While R.c. 121.22 permits a public body’s members to delib­ erate in executive session, the law prohibits them from voting while in executive session. R.C. 121.22(G)-(H). A public body may vote only during a meeting open to the public, and a public body in executive session must return to an open meeting before voting. Id. A secret ballot vote during an open meeting is no different from a vote taken during an executive session. In either case, the public is denied the op­ portunity to know and evaluate the decision-making of the public body and to hold its members accountable for their decisions. It is patently unreasonable to explicitly prohibit a public body from voting during a closed executive session only to permit the public body to vote by secret ballot once it reconvenes in an open meeting.

 

Accordingly, we conclude that the “open meetings” requirement of R.C. 121.22 is not satisfied when members of a public body, in this instance, the State Board of Education, vote by secret ballot. To conclude otherwise would permit the Board to disregard the primary purpose ofthe open meetings law by concealing the decision-making ofits members from the public.

 

Conclusion The current state ofthat jurispru­ dence persuades us that R.e. 121.22’s “liberal construction” mandate should be applied to the method of voting used by the members of a public body in taking formal action at an open meeting. Voting by secret ballot is at variance with the purpose ofthe open meetings law and only denies the people their right to view and evaluate the workings of their government. Accordingly, a public body that is subject to the requirements ofthe Ohio open meetings law may not vote in an open meeting by secret ballot.

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