October 20, 2014

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Lorain law chief defends classified meetings

LORAIN — Law Director Pat Riley contends state law gives him the right to classify information secret and prosecute public officials who reveal secrets.

Riley

“There are certain things the public isn’t supposed to know at certain times,” Riley said during an often-contentious Monday meeting with Chronicle Editor Andy Young, Chronicle reporters and Mayor Chase Ritenauer. “This is not a law that is subject to interpretation. It is clear.”

Riley said a confidentiality pledge City Council members are asked to sign regarding executive sessions was requested last year by the administration of former Mayor Tony Krasienko to plug leaks of potentially damaging information to the city. Executive sessions — closed-door meetings involving elected and public employees — can be initiated only to discuss land acquisitions or sales, pending or potential litigation, personnel matters and union negotiations. The Notice of Non-Disclosure warns elected officials and public workers not to disclose confidential information and that whoever does is guilty of a first-degree misdemeanor.

“I didn’t ask for the responsibility. It’s been thrust on me by the law,” Riley said. “What am I supposed to do? Walk away from it?”

Riley said there is no legal precedent in Ohio, but the Ohio Ethics Commission backs him citing a 1993 legal opinion which said a hospital didn’t have to provide monthly financial reports to a city with a financial interest in the hospital. The opinion cited an Ohio law that public officials can’t disclose information when “preserving its confidentiality is necessary to the proper conduct of government business.”

While legal to publicly disclose some topics discussed in executive session, a person could be prosecuted depending on the information, according to Paul Nick, commission executive director. For instance, revealing a person’s medical records discussed in executive session in a personnel matter about a medical leave.

“The determining factor is not whether it occurs inside or outside executive session,” Nick said. “The determining factor is what is the information.”

Ritenauer said disclosures could compromise Lorain in circumstances such as development deals, legal settlements or union negotiations.

“The adage in City Hall is if it’s told on the fifth and the sixth floor it’s throughout the city by lunchtime,” he said. “That’s the environment we’re in.”

Riley said leaks have led to a few complaints in the last several months, including one against Councilman Dennis Flores, D-2nd Ward, accused of revealing remarks Ritenauer made in a Sept. 17 executive session about rescinding a sewer and water rate increase. Police Chief Cel Rivera wrote in an email Monday that police never investigated Flores and referred the matter to Council. Council President Joel Arredondo has previously said that because Ritenauer later talked about the rescinding publicly, Flores wasn’t disciplined.

Riley said that since he took office in 2009 he’s tried to make more information public to improve communications between the administration and Council. He said he resents allegations that the pledge is a gag order designed to muzzle whistleblowers.

Gary Daniels, American Civil Liberties Union of Ohio associate director, disagrees. Daniels said the pledge violates the First Amendment’s guarantee against prior restraint — government prohibition of speech in advance of publication — and the guarantee against the “chilling of speech.”

Daniels said the pledge falsely implies that everything that occurs in executive sessions is proper.

“It’s making no allowances for any kind of whistle-blowing,” he said.

Attorney Tim Smith, a former Akron Beacon Journal managing editor, retired Kent State University journalism professor and Sunshine Law expert, said Riley’s rationale is overly broad and self-serving.

“If information is a public record, you can’t declare it confidential simply because you don’t want it to be let out,” Smith said. “He’s attempting to designate everything that happens in an executive session as confidential.”

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