October 23, 2014

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Expert: Lorain’s nondisclosure pledge is illegal

LORAIN — A pledge signed by every City Council members threatening them with prosecution if they disclose what was said in executive sessions is an illegal gag order designed to muzzle public officials, according to an Ohio Sunshine Law expert.

“Even though they signed, it’s not enforceable,” said attorney Tim Smith, a former Akron Beacon Journal managing editor, retired Kent State University journalism professor and Sunshine Law expert. “They are free to talk about what went on in executive sessions if they wish. And there’s no repercussions for it.”

The Notice of Non-Disclosure of Confidential Matters signed by Council members in January said elected officials and public employees are forbidden to disclose information deemed confidential if, “preserving its confidentiality is necessary to the proper conduct of government business.” The form warns that anyone disclosing confidential information is guilty of a first-degree misdemeanor.

Smith said the reference is to laws designed to keep former public officials from financially benefiting in the private sector from information they received or contacts they made while a public official. Smith said the law has nothing to do with executive sessions, and the way it is being applied by city Law Director Pat Riley violates the First Amendment’s guarantee against prior restraint. Prior restraint is government prohibition of speech in advance of publication.

“The law director’s got a screw loose,” he said. “There’s no end to people who do not understand the law. Their numbers are legion.”

Executive sessions — closed-door meetings involving elected officials — can only be initiated to discuss land acquisitions or sales, pending or potential litigation, personnel matters and union negotiations. Smith said there are legitimate reasons for executive sessions “but the idea that you can be prosecuted for talking about something in an executive sessions is just sheer nonsense.”

Riley said the pledge was created in 2011 during the administration of then-Mayor Tony Krasienko in response to complaints of numerous leaks, but is not a gag order.

“I believe what happens in City Hall should be in the public’s domain,” he said. “We do the public’s business. It’s not our private business. I’m absolutely pledged to that concept.”

However, Riley said prosecution is warranted if someone leaks confidential information that could damage the interests of taxpayers. Riley said he has consulted with police about whether to prosecute those who leak several times, but hasn’t found circumstances where he thought prosecution was appropriate.

“But do I think there are circumstances where that could occur? Yes,” he said.

The pledge was also signed by Lorain County General Health District board members in September before executive sessions that led to the hiring of former Health Commissioner Ken Pearce as a consultant.

“Sometimes people just need to be reminded that, hey, you’ve got to be careful,” said Gerald Innes, a Lorain County assistant prosecutor. “You could be divulging something that ends up seriously hurting the interests of the public entity involved.”

Innes, who said no one was forced to sign the pledge, said he’s not aware of anyone ever being prosecuted for revealing information, but it could happen. City Council President Joel Arredondo said he would warn any Council member believed to be leaking information, and Council bylaws allow the accused councilman to have a public hearing on the matter if they request it. Arredondo and Councilman Dan Given, D-at large, said prosecution might be appropriate for those who continually disclose information.

Given, who took office in 1994, said he’s occasionally walked out of executive sessions if he thought topics should be discussed publicly. But he said leaks have been a problem in recent years.

“Within 24 hours of having the discussion, someone comes up to you and says, ‘Hey, I heard you guys were talking about this last night,’” he said. “You’re sitting there looking dumbfounded, like, you know, someone’s blowing the deal for us.”

Mayor Chase Ritenauer signed the pledge and said he supports it. During a Sept. 17 Council executive session, Ritenauer was overheard by a Chronicle-Telegram reporter behind closed doors discussing rescinding a sewer and water rate increase, a possible violation of open-meeting laws.

Lorain County Commissioner Tom Williams said Councilman Dennis Flores, D-2nd Ward, told him what Ritenauer said, which violated the pledge. Arredondo said because Ritenauer later talked about the issue publicly, Flores wouldn’t be disciplined.

Flores said Council members were told that if they didn’t sign, they might be barred from executive sessions. Flores said he didn’t have a problem signing but believes some topics discussed by city officials and Council members in executive sessions should be discussed publicly.

“They don’t want the public to know,” he said. “They seem to circumvent and hide under the executive session rules.”

Contact Evan Goodenow at 329-7129 or egoodenow@chroniclet.com.