Solicitor explains closed door process

Bret Bevens, PDT Sports Writer

January 4, 2013

Frank Lewis

PDT Staff Report

Portsmouth City Council again chose to retire to executive session to interview prospective candidates for the Fifth Ward Council seat Monday night. Council met briefly to allow the public to speak, then went behind closed doors at approximately 6:15 p.m.

Council interviewed six people over the next hour and 15 minutes, with Chris Neff being the last person interviewed. Neff returned to Council chambers at 7:30, and over the next 15 minutes, one at a time, the members returned.

Portsmouth City Solicitor John Haas said he was strictly an observer at the interviews, and that Council did not discuss their vote during the time between the last interview and the reopening of the special meeting.

The Portsmouth Daily Times asked Haas why, when he was selected to fill the Fifth Ward seat the first time, the interviews were done in open session with the public present, and since then, Council has chosen to conduct the process out of the view and earshot of the public.

“It was closed (open) before because there was at least one Council member at the time that did not believe executive session for any purpose was legal,” Haas said. “And it was the opinion of the Solicitor before me and my opinion and the Council’s opinion, that when you are discussing personnel issues, that can be done in executive session. I think it’s Council’s perogative if they choose to do so, that portion of the interview process behind closed doors so that they can discuss issues dealing with potential litigation and those sorts of things without being concerned about making statements in public that may not be appropriate.”

Haas was asked if people not currently employed by the city, such as the candidates being considered to fill an unexpired term, are actually personnel.

“It’s an appointment to a position within the city,” Haas said. “It is a personnel issue.”

On Friday morning Haas referenced the Ohio Revised Code, Section 121.22 which provides in pertinent part some exceptions to the requirement of open session procedures.

“(G) Except as provided in division (J) of this section, the members of a public body may hold an executive session only after a majority of a quorum of the public body determines, by a roll call vote, to hold an executive session and only at a regular or special meeting for the sole purpose of the consideration of any of the following matters:

(1) To consider the appointment, employment, dismissal, discipline, promotion, demotion, or compensation of a public employee or official, or the investigation of charges or complaints against a public employee, official, licensee, or regulated individual, unless the public employee, official, licensee, or regulated individual requests a public hearing. Except as otherwise provided by law, no public body shall hold an executive session for the discipline of an elected official for conduct related to the performance of the elected official’s official duties or for the elected official’s removal from office. If a public body holds an executive session pursuant to division (G)(1) of this section, the motion and vote to hold that executive session shall state which one or more of the approved purposes listed in division (G)(1) of this section are the purposes for which the executive session is to be held, but need not include the name of any person to be considered at the meeting.”

Haas further addressed the Ethics Commission’s interpretation of the rule.

“Just as an aside, the requirement by the Ethics Commission that I resign before applying for the solicitor’s position turned on their interpretation of the word ‘employment,’” Haas said in his response on Friday. “For the purposes of the appointment, they considered the Solicitor position to fall in the “employment” category as opposed to my argument that the Solicitor is an elected position and not ‘employment.’ The Commission indicated they were likely to publish a formal opinion about that issue as it was a very close call.”

Haas said the quoted section of R.C. 121.22 clearly states “official” so he does not consider Monday night’s executive session even a close call. Haas said, hypothetically, if “or official” was not in the statute, it would be an interesting question but one that he believes would still fall under the exception given the recent Ethics Commission decision.

At the end of the night, Council chose Portsmouth attorney Gene Meadows to fill Haas’s unexpired term.

Frank Lewis may be reached at 740-353-3101, ext. 252, or at flewis@civitasmedia.com.