Vindicator editorial: Time to lift veil of secrecy from Ohio’s jobs initiative

Editorial from The Vindicator

For seven years, JobsOhio, the state’s privatized economic- development endeavor, has been shielded from public view, much to the displeasure of open-government advocates.

Indeed, the media have consistently challenged arguments presented by the proponents of secrecy and have demanded accountability and transparency on behalf of the taxpayers.

Not surprisingly, such demands have fallen on deaf ears.

But that could change if a proposal being pushed by Ohio Auditor David Yost, a Republican, is adopted by the GOP-controlled General Assembly and signed into law by Republican Gov. John R. Kasich.

Yost, a candidate for Ohio attorney general this year and a former journalist, is seeking a one-time performance audit of JobsOhio, which was created by statute in 2011 to replace the Ohio Department of Development.

Kasich and others contend that a private organization unencumbered by state laws governing public agencies is needed to spur job-creation in Ohio.

But without access to JobsOhio’s records, the media and the public have no way of confirming the claims of success that have been made over the years.

We also have no insight into how much money is actually spent on salaries and benefits for the 81 employees.

As the Columbus Dispatch reported March 12, JobsOhio continues to lowball the amounts it pays employees, including 34 individuals who earn at least six-figure annual salaries.

Here’s what the Dispatch wrote:

“In its 2017 filings with the state, Gov. John Kasich’s privatized economic development agency again reported employees’ taxable income – which does not include salary diverted to non-taxable retirement contributions and health insurance costs – instead of their gross income.

“State law requires the nonprofit to report ‘total compensation.’ But its practice of reporting only taxable income serves to understate employee earnings by thousands of dollars each.

 

 

“The filing for 2017 shows that John Minor Jr., JobsOhio’s president and chief executive officer, received a raise of $32,256, or 7 percent, last year to $516,458.

“Yet, his actual compensation likely is significantly higher.”

No names

There’s another problem with Jobs-Ohio’s so-called disclosure of compensation. There are no names on the chart. The list reveals only the job title and salary for each position.

That is why state Auditor Yost’s push for a performance audit is timely and necessary. The Republican majority in the General Assembly will stand accused of supporting secrecy in state government if it does not enact the necessary legislation.

“I really looked askance at its lack of accountability,” Yost said of the Jobs-Ohio program. It is exempt from open records and ethics laws, and its books are not publicly audited.

But officials involved in the program have long insisted the nonprofit adheres to the highest standard of accountability, transparency, ethical conduct and responsible business practices.

Yet, the day-to-day operations are conducted in darkness.

The proponents of privatization of Ohio’s job-creation effort continue to argue that no public dollars are used for the program. But as we have pointed out in previous editorials, Ohioans contribute millions of dollars in grants awarded to JobsOhio, and state liquor profits are used to attract private financing.

According to the Dispatch, the state auditor’s desire to “check the numbers” is endorsed by the Ohio chapter of Americans for Prosperity, funded by the conservative billionaire Koch brothers.

The newspaper quoted the chapter’s state director, Micah Derry, as saying, “Since most of JobsOhio’s activities are shielded from public view, a performance audit is a welcome first step toward providing greater transparency for what we believe to be a flawed program.”

We are well aware that economic development cannot always occur under the glare of public scrutiny and that secrecy is often demanded by prospective job creators.

But having a private organization operating under the umbrella of state government is bad public policy.

We opposed the creation of JobsOhio from the outset and that put us at odds with the Kasich administration.

The governor now has the chance to lift the veil of secrecy by supporting Yost’s push for a performance audit.

The state auditor should be given the authority to seek requests for proposals from national auditing firms and then to select the one he believes would give Ohioans the best review of JobsOhio.

 

Cleveland says it needs more time on 764-day record request, filer says

From The Plain Dealer

More than two years ago, Jon Kozesky filed a public records request to learn the name of a Cleveland police officer who issued him a traffic ticket. 

As part of his request, Kozesky included the officer's badge number, the time of the traffic stop and the police district he was traveling through. 

Then he waited. 

And he waited. 

On Wednesday, 764 days after he filed his request, he spoke for the first time with someone at the city about his request. The person told him this: It could take more time to dig up the information he sought.  

Kozesky is the latest victim of the city of Cleveland's notorious failure to provide public records in a timely manner, as required by state law. 

Attorney David Marburger, an expert on Ohio's public records law who co-authored a book on the subject in 2011, described the way the city handled Kozesky's request as "outrageous." 

"What do they have, like 30 officers who all have the same badge number," Marburger said in an interview. "That's laughable. It's just too funny." 

Law Director Barbara Langhenry, whose department handles requests for public records, was not immediately available for comment. 

Ohio law requires that public records be "promptly prepared and made available for inspection to any person at all reasonable times during regular business hours." Copies must be provided "within a reasonable period of time."  

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Sunshine Week coverage

Your Right to Know: Listen up to our Sunshine Week podcast

By Randy Ludlow, The Columbus DIspatch

The time has come to talk of many things if you value transparency in government.

In observance of national Sunshine Week, Dispatch Editor Alan Miller joined me for a Buckeye Forum podcast discussing the importance of public records and open meetings to an informed citizenry.

LISTEN TO THE PODCAST

We offer some tips for gaining access to public records and discuss how you can best fashion your request to increase your chances of landing the information you seek.

Here’s a blog link to more Sunshine-related resources we provided earlier this week, including the so-called “Yellow Book,” the definitive guide to public access laws in Ohio.

In our podcast, we promised to provide a fill-in-the-blanks form letter you can use to request public records from state agencies, city and county governments, school boards and others. You can email rludlow@dispatch.com to request a Word version as an attachment or cut-and-paste text.

Remember, they are your records. Government merely is the custodian of the public’s records. Go get ’em.

 

Attorney General releases updated ‘Yellow Book’ on state's sunshine laws

Editor's Note: ONMA recommends all newsrooms to have a copy of this manual.

From The Morgan County Herald

Ohio Attorney General Mike DeWine has released the 2018 edition of Ohio Sunshine Laws: An Open Government Resource Manual. The release of the manual, commonly referred to as the “Yellow Book,” coincides with the beginning of National Sunshine Week.

“By providing elected officials, public employees and Ohio citizens with information about public records and compliance, we help ensure accountability and transparency in the conduct of public business,” said Attorney General DeWine.

The Sunshine Laws Manual provides summaries of Revised Code provisions and case law regarding the Ohio Public Records Act and Open Meetings Act. The 2018 edition includes updates on recent open government legal decisions and law changes. The electronic edition, which can be accessed at www.OhioAttorneyGeneral.gov/YellowBook, includes clickable bookmarks to allow readers to quickly jump to the topic in which they are interested as well as hyperlinked court cases to allow readers to quickly access court decisions.

The Ohio Attorney General’s Public Records Unit also offers Online Sunshine Laws Training, which is available to the public and can be accessed at https://SunshineLaw.OhioAttorneyGeneral.gov/. The Online Sunshine Laws Training contains thirteen separate lessons plus an introduction video featuring the Attorney General.

Each lesson combines a video instruction with quiz questions covering important topics under the Ohio Public Records Act or Ohio Open Meetings Act. Topics cover the length and breadth of the Ohio Sunshine Laws, from defining a public record to appropriate redactions before release. To complete the training, users must watch each video lesson in its entirety, correctly answer the quiz questions concerning the material covered, and fill out an evaluation providing feedback on the quality of the training.

The training lessons can be completed at the user’s own pace, and the entire three-hour training does not need to be completed in a single sitting. Users are able to return to the videos they have completed if a specific topic is of particular interest. The online training is approved for CLE credit, as are live Sunshine Laws trainings, and can be completed at home or in the office.

The Ohio Attorney General’s Public Records Unit conducts Sunshine Laws Trainings at dozens of locations around Ohio. The training on Ohio’s Public Records Act is required for local public officials or their designee at least once per elected term and also includes training on the Open Meetings Act. These trainings are also open to the public and media. A list of trainings can be found at www.OhioAttorneyGeneral.gov/SunshineLawTraining.

Cleveland PD claims unlimited right to blur images of cops accused of crimes

From The Plain Dealer

Cleveland officials are taking the stance that the public does not have the right to see un-redacted video and images of police officers who are formally charged with committing crimes.

City law director Barbara Langhenry said in an email exchange with cleveland.com that the city will use an exemption in the public records law in order to blur the faces of police officers in police body camera videos, even when those officers are off-duty and are formally charged with committing crimes.

Cleveland.com requested video on Feb. 16 of police officer Angelia Gaston, who is charged with obstructing justice after she drove away from a fellow police officer who was trying to tow her car because of some $1,500 in parking tickets Gaston had accrued. 

The city provided the video with Gaston's face blurred. In contrast, videos of other criminals charged with crimes do not under go similar editing. 

Langhenry's office also uses the exemption to refuse the release mug shots when officers are booked into the city jail on criminal charges.  

Langhenry did not respond to multiple messages seeking comment and clarification. City spokesman Dan Williams said in an email that Langhenry was consulting with attorneys at the law firm BakerHostetler and would provide an explanation. 

Williams later responded on Langhenry's behalf, saying that the city is going to stand by their "policy." 

The exemption the city cites is a provision in the Ohio Sunshine Laws that says photos of officers who are assigned to plain clothes or undercover work are protected from having their photos publicly released.

Langhenry said in an email that Safety Director Michael McGrath has said that "all Cleveland Police Officers may at any time be assigned undercover or plain clothes positions or assignments."

The exemption would cover all officers, even ones that have never had an undercover assignment.

A public records attorney and an open government advocate both called the city's reasoning "absurd."

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Appeals court rules education board met lawfully before ECOT vote

From Gongwer

The State Board of Education didn't commit a technical violation when it voted to claw back $60 million from The Electronic Classroom of Tomorrow, an appeals court has ruled.

The Franklin County Court of Appeals upheld the July decision of a lower court that the board didn't break open meetings laws the day it accepted a hearing officer's finding that ECOT was overpaid for the number of full-time students it served in the 2015-16 school year.

The shuttered e-school argued board members met illegally in June to come to a decision on the repayment prior to a vote.

Its attorney said at the time a violation was clear because members voted without discussion. He also criticized the meeting schedule and accused board president Tess Elshoff of polling members on their opinions prior to a vote.

Similarly, the board voted without discussion earlier this month to accept a hearing officer's findings from ECOT's 2016-17 school year attendance audit. Another $19 million was deemed overpaid as a result of that review.

The three-judge appeals court found that because the board's 2017 proceedings were quasi-judicial in nature, the Open Meetings Act cannot be violated.

"By issuing a final determination after providing notice, a hearing, and the opportunity to provide evidence, BOE was acting in a quasi-judicial capacity," the court said in its decision.

ECOT is currently awaiting an Ohio Supreme Court ruling in a separate case in which it contended the attendance audit was incorrectly completed, therefore no repayments should be made.

A proposed bill would restrict public access to visual sex crime evidence. Not everyone agrees with it.

From The Journal-News

Ohio Rep. Wes Retherford’s bill designed to protect a crime victim’s rights could soon be headed for an Ohio House vote.

The bill, called the Victim’s Protection and Privacy Act, would prevent photos, videos and images of a victim of a sexually oriented crime from being accessed via a public records request. The bill was prompted by Retherford’s conversation with a Hamilton police detective.

These pieces of evidence were protected throughout a court case, including the appeals process, until the Ohio Supreme Court ruled in Caster vs. Columbus. In a split decision, the court said these pieces of investigative evidence could be released once the initial court case concludes.

House Bill 451 would prevent that. The House’s Government Accountability and Oversight Committee voted 11-0 on Tuesday to move the bill out of committee on for a full vote by the House. Retherford, R-Hamilton, believes it could be up for a floor vote next week.

“With the vote (on Tuesday), we are one step closer to ensuring victims of sexual violence are not subject to being re-victimized,” he said.

The bill is supported by the Ohio Prosecuting Attorneys Association, and the Ohio Alliance to End Sexual Violence.

“Our members do occasionally receive public records requests for the types of records described in your bill,” wrote Steve Hall, assistant executive director for the Ohio Prosecuting Attorneys Association, to Retherford earlier this month.

“Many prosecutors have expressed to us that they make every effort to deny such requests. Others feel that there is currently no authority to do so. All agree that it would be very beneficial to have a clearly stated exclusion.”

While the Ohio Public Records Law provides transparency “critical to a functioning free society,” Camille Crary, director of legal services and policy with the Ohio Alliance to End Sexual Violence, said, “this loophole infringes on the rights and privacy interest of any person who happens to end up the victim of a sex crime.”

However, the bill is not supported by all. Dennis Hetzel, president and executive director with the Ohio News Media Association, said this bill “is not an easy one to oppose” because no one wants graphic content such as photos or videos released that could be used to re-victimize crime victims.

But there’s nothing in state law — even after the Caster decision — that says this would happen, and it has never occurred “to anyone’s knowledge,” Hetzel said in his testimony to the Government Accountability and Oversight Committee.

“Requesting records and receiving records are two different things. This is why there is no documented case of an offender receiving graphic photos after a case is closed,” Hetzel said.

“If such a request were made, it would be denied, and it would be upheld based on factors such as past Ohio Supreme Court decisions on the rights to privacy and the ‘catch-all’ exemption in our open records law that keeps material exempt if it is made secret by other portions of state and federal law.”

Retherford said the bill allows the legislature to be “proactive” to a possible situation “instead of being reactive to a scenario that could happen.”

Court orders Cuyahoga County to release video of corrections officer's attack on naked inmate

From The Plain Dealer

An Ohio court has sided with cleveland.com and ordered Cuyahoga County to release body camera video of a jail supervisor using excessive force on a naked inmate.

Lawyers for Cuyahoga County Executive Armond Budish did not back up their claims that a video that led to the firing of Corporal Brendan Johnson should be exempt from release, Jeffrey Clark, a special master assigned by the Ohio Court of Claims to rule on the dispute, wrote in a 29-page decision handed down Wednesday.

Clark did allow the county to blur images of the inmate's breasts, underwear and computer screens and writings that detail her medical history, and to redact 14 seconds of audio from the video. But Clark wrote that the redactions must be made in a way that does not obscure Johnson's actions, rejecting the county's claims that the entire video was not a public record.

Dennis Hetzel, president of the Ohio News Media Association, called the opinion a "well-reasoned slap-down" of the extreme arguments that the county used to try to keep the video away from the public.

"It's a good decision in terms of telling local government that when you take an extreme view of the open records law, you're not going to win," Hetzel told cleveland.com in a phone interview Thursday.

The ruling is also an important victory for government transparency and offers a well-reasoned and delicate answer to a difficult question that governments and courts must grapple with as law-enforcement body cameras become ubiquitous pieces of evidence in court cases across the country, Hetzel said.

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AEP gets second chance to meet notice requirement

From The Columbus Dispatch

American Electric Power is getting a do-over in the form of a public hearing scheduled for Feb. 12.

The Public Utilities Commission of Ohio said the hearing will make up for the fact that AEP did not file proper notice of hearings that took place last April for a proposal to change electricity rates through 2024.

“While it is apparent that many consumers were aware of the hearings, the attorney examiner finds it necessary to conduct another public hearing to ensure the public is notified of these proceedings and afforded an opportunity to provide testimony,” according to a filing made Monday by a PUCO administrative law judge.

The lack of notice, which by law must be published as an ad in local newspapers, meant that the PUCO and AEP were violating state rules for this type of rate plan.

AEP notified the commission of the error and asked for the notice rule to be waived. Consumer advocates objected to this.

As an alternative, AEP said it could hold an extra hearing, which is the option the utility has chosen.

AEP has said the rate plan would lead to a first-year increase of about $1 per month for households.

The hearing is scheduled for 6 p.m. Feb. 12 in the Cardinal Classroom at the Ohio History Center, 800 E. 17th Ave.