Background
Donald Jackson, a resident of the Sycamore Community School District, filed a complaint against the Sycamore Community City School District Board of Education (“the Board”) alleging that the Board violated Ohio’s Open Meetings Act (R.C. 121.22) when it approved a settlement agreement in executive session. The settlement concerned the discipline of a teacher, Danielle Scrase, and Jackson contended that any formal action, like approving a settlement, must occur in an open, public meeting. Jackson sought to invalidate the settlement and requested civil forfeiture.
During discovery, Jackson sought to depose Board members about discussions held during executive sessions. The Board objected, asserting that the communications were protected by an “executive-session privilege” and the attorney-client privilege. The Board filed motions for protective orders to prevent these depositions, while Jackson filed a motion to compel answers to his questions.
The trial court conditionally granted Jackson’s motion to compel regarding specific questions about the January 2025 executive session, noting that the “executive session privilege” was not a justiciable question as the court declined to rule on its existence. However, the trial court found that even if such a privilege existed, R.C. 121.22(H) would invalidate it given the appearance that the Board took formal action. The court also found the Board failed to establish that attorney-client privilege applied merely due to counsel’s presence. The Board appealed the trial court’s decision.
The Court’s Holding
The Ohio Court of Appeals, First District, affirmed the trial court’s judgment. Regarding the “executive-session privilege,” the appellate court declined to address its existence. It noted that the trial court had expressly bypassed this question, ruling instead that R.C. 121.22(H) would invalidate any such privilege in this context where the Board appeared to have taken formal action. As an appellate court, it is limited to reviewing issues actually decided by the trial court, and thus the question of the privilege’s existence was not ripe for review.
Concerning the attorney-client privilege, the appellate court found that the Board failed to meet its burden to demonstrate that the communications were protected. The court reiterated that the mere presence of an attorney in a meeting is insufficient to establish attorney-client privilege, citing prior case law requiring an eight-part test. The Board’s assertion of privilege lacked sufficient detail and evidence to satisfy these requirements.
Consequently, the appellate court upheld the trial court’s order compelling the Board members to answer the specified questions related to the January 2025 executive session. The court noted that because the trial court’s denial of a protective order was “conditional,” the Board was not precluded from reasserting the attorney-client privilege with proper justification for specific questions during depositions.
Key Takeaways
- Appellate courts will not rule on the existence of a privilege if the trial court expressly declines to address it, deeming the issue not ripe for review.
- For attorney-client privilege to apply, merely having an attorney present is insufficient; the party asserting the privilege must demonstrate that all specific criteria (e.g., seeking legal advice in confidence) are met.
- Ohio’s Open Meetings Act (R.C. 121.22(H)) can invalidate claims of privilege if a public body appears to have taken formal action during an executive session, potentially requiring disclosure.
- Public bodies bear the burden of proof to establish that a claimed privilege applies to communications.
Why It Matters
This ruling serves as a crucial reminder to public bodies, such as school boards, about the strictures of Ohio’s Open Meetings Act and the limited scope of executive sessions. It clarifies that public bodies cannot shield discussions or actions under a generalized claim of “executive-session privilege” or merely by having an attorney present. Any formal action must be conducted in public, and attempts to bypass this requirement by taking action in executive session, even if implicitly, will likely lead to compelled discovery.
For attorneys advising public entities, the case underscores the necessity of meticulously documenting the purpose and content of executive sessions and ensuring that any claims of privilege are rigorously substantiated. It reinforces that the “product” or outcome of an executive session can dictate whether its contents are discoverable, emphasizing transparency in government operations and accountability to the public.