Three Ohio open meetings experts said this week that the Akron Board of Education did not violate the state’s Sunshine Law by removing an item from the agenda hours before Monday’s meeting.
School Board Member Barbara Sykes said board members were breaking public meetings laws when an expected vote on the proposed redistricting and restructuring plan was taken off the agenda without discussion.
Board members were notified about the agenda change in an email they received at 1:44 p.m., said Carla Jackson, the board’s vice president. Members of the media received such an email about an hour before the 5:30 p.m. meeting’s start time.
Sykes said in the meeting she thought the matter had “been handled inappropriately and illegally.”
But Dave Marburger, a First Amendment attorney and the co-author of the book Access with Attitude, said there is no requirement that a regularly scheduled meeting have an agenda.
“I don’t see how that could be illegal,” he said of removing an agenda item. “When they say they’re going to discuss it but you don’t, you’re not exactly shutting the public out of a discussion because there’s no discussion anyway.”
Marburger said he understood why it might be an inconvenience for residents who were interested in the redistricting plan, but he said it’s more of a discourtesy than anything else.
“The better question is, why did they pull it?” he said. “Stuff does get pulled from the agenda with very little advance warning, sometimes with none. That doesn’t make it correct.”
Public notice of at least 30 days is required
The vote was delayed in order to comply with the school board’s policy regarding redistricting, said Diana Autry, the board president. She did not say what policy matter required the delay, but the board policy on redistricting, last revised in the fall of 2022, states the school board will hold a first reading of proposed changes no sooner than 30 days after a public notice is sent to the parents and guardians of every student in the district. That first reading is to be followed by two more readings prior to a vote.
Superintendent Michael Robinson sent a letter to parents and guardians Feb. 27 detailing the plan. In a Feb. 26 statement, the district said the vote would take place within the week. Robinson said it will now take place March 25, which is 27 days after the Feb. 27 letter.
Andrew Geronimo, director of the First Amendment Clinic at the Case Western Reserve University School of Law, said complaints about open records violations are usually the opposite of what happened in Akron — that matters are discussed without proper notice, not that there is notice without discussion.
“I think they’re required to say, ‘We will be having this meeting.’ I don’t think they’re required to circulate an agenda or stick to this agenda,” he said.
Jack Greiner, a media attorney and partner at the Faruki Law Firm in Cincinnati, concurred. He said while the laws are different for special meetings, for a regularly scheduled meeting, public bodies are only required to give a time and place.
Sykes said she was happy to hear that the board’s removal of redistricting was not illegal but that she’d like to see the board create a policy for deciding when and how items are removed from public discussion.
“It’s not illegal, but it’s definitely against the spirit of the law,” she said. “We need to look at our bylaws and address when the public should expect to have a final agenda.”
She added that the redistricting conversation did not need to be pulled off the agenda because it was supposed to be a third and final reading. A requirement for the issue to be heard three times is a minimum, she said, not a maximum.
“We should have heard what’s the issue,” she said. “If board members asked a question, then that’s what we should have been discussing on Monday.”
Greiner said what could be an issue is the way that the redistricting plan was removed from the agenda. A 2016 court case said it’s illegal for board members to exchange emails to decide that a vote should not be held, he said.
“If one person’s in charge of the agenda, I don’t think that would be a problem,” he said. “A meeting is a pre-arranged discussion of the public business of the public body by the majority of its members. … It’s all about how they made that decision.”
