The Columbus Dispatch: Emails: City Council worked in private to pass public resolution on Hamas-Israel conflict (Mark Weaver quoted)

Public records reviewed by The Dispatch bolster the state auditor's allegations in a letter to the Columbus City Council that the body may have violated the Ohio Open Meetings Act in crafting a resolution on the Israel-Hamas conflict.

The nine-member council unanimously approved the contentious and lengthy resolution without any debate at a public meeting in late March. That appears to be because the details had been reviewed and hammered out in private over several months, in potential violation of Ohio law, the emails indicate.

"We are committed to conducting our deliberations at our meetings and hearings, in compliance with the Ohio Open Meetings Act to ensure transparency and public participation," said Jose Rodriguez, spokesperson for the City Council, in an email response to being asked if council routinely uses email to survey members feelings on supporting future votes.

The final resolution condemned both Hamas’ terrorist attacks on Israel and hostage-taking of innocent civilians on Oct. 7 and the ongoing humanitarian crisis and the killing of Palestinian civilians in Gaza over the last five months of military warfare. It also called for "an immediate, sustained and mutual end to hostilities in Gaza; the release of hostages and detainees; and the urgent expansion of humanitarian assistance," among other things.

"As discussed, below is working language for a resolution on 3/4/24," Michael S. Brown, chief of staff to Council President Shannon Hardin, sent in an email to the eight other members in late February. "Please send comments to me and John. CP Hardin is starting to make calls, but the draft language is not going out until we get him feedback from each member.

"Please do not share externally," Brown added.

The email was sent to the eight councilmembers ".gov" city-issued email accounts. The feedback started to circulate in numerous emails being passed around by councilmembers, including to their staff members.

"I am concerned that we’re setting a precedent and other groups will demand that we issue resolutions about other foreign policy issues that impact their community," Councilmember Nancy Day-Achauer responded in one return email. "I am also concerned that we will now see an increase in people protesting at council meetings about things that are outside our purview." Day-Achauer also questioned if the resolution should call for a "ceasefire," which is a pause - and not an end - to hostilities, and not to be confused with a peace agreement.

"I agree deeply and that is the one word that will trigger either side," Brown wrote back. In another email responding to further suggestions, Brown told Day-Achauer: "Thank you. New draft coming later today."

"Thank you all for sharing so many ideas for the language of this proposed resolution," Brown - who declined to comment for this story - wrote the group of eight, adding that some of the councilmembers thoughts had been "integrated." He again cautioned that members "do not forward or share this text (of the resolution) with anyone."

Did Council break Ohio law?

In a letter dated May 1 that was emailed individually to each of the nine Democratic councilmembers, Republican State Auditor Keith Faber warned that his office had received information indicating council had engaged in official communications outside of a public meeting on the Hamas-Israel resolution. Part of the evidence cited by Faber was a Dispatch story from late March that quoted Councilmember Christopher L. Wyche saying: “My office coordinated with other offices in trying to craft a Ceasefire Resolution that everyone could get behind. . . Unfortunately, we could not come to a consensus.”

"The act requires that not only the final vote be public, but also that the entire process be transparent to the public," the Faber letter said, citing that the Ohio Supreme Court "has found conduct similar to that of Columbus City Councilmembers suggested in the Dispatch article to be in violation."

"Auditor of State Faber is onto something here," said Mark Weaver, former deputy state attorney general who coauthored eight editions of the "Yellow Book," the unofficial name to the official manual to Ohio's sunshine laws governing the public's right to have its business conducted in public.

The Ohio Open Meetings Act requires public officials, when a majority of them are engaged, to discuss all public business in an open meeting, and the Ohio Supreme Court has ruled that includes "group email chats," Weaver said. Potential violations of that law are no small matter - they could theoretically result in repeat offenders being removed from office by a judge, as well as a $500 fine, attorneys fees, and a restraining order prohibiting the conduct.

Even though the topic of Middle East peace was seemingly out of the Council's normal purview - dealing with a statement regarding a highly charged and divisive foreign conflict - there's no exceptions, Weaver said. Four of the nine councilmembers could have carried on deliberations, but once a fifth enters the fray, it's illegal, he added. And it doesn't matter if the debate happens in a room or electronically.

Any member of the public can sue to enforce the statute in court, and "if the judge puts an order on saying 'Don't do that again,' and if they do it again, the judge can remove all the councilmembers from their offices, and appoint new people," what Weaver refers to as "the death penalty of the Open Meetings Act."

"Yeah, you can be removed from office," agreed Phil Harmon, one of the lead plaintiff's attorneys in "White v. King," the Ohio Supreme Court ruling that found that the Olentangy Board of Education was guilty of violating the law by using a series of emails to circumvent a public meeting on an official response to a critical Dispatch editorial in 2012. And Harmon doesn't believe that an official would necessarily have to be a repeat offender to be removed, depending on the seriousness of what happened.

"This is serious stuff," Harmon said.

While Council could have designated its staff to create draft resolutions, that work must then be presented to the Council at an open meeting - not privately - for debate and changes to the final product, Weaver said. While during several meetings the chambers were packed with mostly pro-Palistine protestors carrying banners and shouting demands, Weaver said the law's remedy for that is to have disrupters removed from the room - not to conduct official business in secret.

One of the pro-Palestine protesters, Columbus attorney Mazen Rasoul, had lobbied members of council to approve a ceasefire resolution since last fall, but was repeatedly told by officials that council couldn't move forward until all nine members were in agreement on the draft wording, he told The Dispatch.

If true, that suggests council deliberated privately in advance of its meeting. And Rasoul believes based on statements from councilmembers that a majority of the nine members supported passing a resolution months before it got accomplished.

"They said explicitly that they only bring resolution for a vote if they have unanimous approval. . . They said it in the context that this is City Council's policy," noting that he also heard similar statements from a few suburban councils his group approached.

The Dispatch reached out to Jewish Columbus, a group that also spoke out in opposition to thecouncil's resolution at the meeting it was approved, but no one returned calls over two days.

Faber's office had no additional comment Tuesday on The Dispatch's public records findings showing behind-the-scenes communications involving the entire body in either receiving or returning email comments to reach an agreed-upon resolution. Faber has instructed council to maintain any records regarding the resolution's passage so that they can be reviewed in a routine audit early next year.