Port board relents on closed meetings; Outside attorney to record sessions

By Joshua Benton
Blade Staff Writer

Page 1

In an unprecedented move, the Toledo-Lucas County Port Authority has agreed to have all of its closed-door meetings tape-recorded, and to provide special notice to The Blade whenever it plans to meet outside the public’s view.

The agreement is part of an out-of-court settlement with the newspaper, and an effort to show that the port is following Ohio’s public meetings laws.

The settlement ends a 17-month legal battle between the newspaper and the port authority over two 1997 meetings The Blade contends were improperly held outside the view of the public and the press.

The port authority’s board of directors approved the settlement by a unanimous voice vote yesterday.

“This was a historic victory on behalf of the people,” said John Robinson Block, co-publisher and editor-in-chief of The Blade. “The port authority broke the law, and we stopped them from doing it again.”

As part of the settlement, the port admitted no wrongdoing.

“We’re happy to be able to focus more of our attention on doing our job,” said port president James Hartung. “This had been something of a distraction.”

The port authority operates Toledo Express Airport, Metcalf Field, and Toledo’s shipping port.

Attorney David Marburger, a lawyer for the Ohio Newspaper Association, hailed the settlement as a “clear victory for The Blade.”

“It’s an outstanding result for The Blade, and I think it’s a good result for the people of Lucas County, as well,” said Mr. Marburger, who was co-counsel for The Blade.

The suit stemmed from a Dec. 15, 1997, meeting of the port board’s airport committee. At that meeting, board members went into executive session, saying they would be discussing pending litigation.

Under Ohio public records law, a public body like the port authority can go into executive session – and thus exclude the public and press from their deliberations – only for limited purposes. Discussing pending litigation is one of those purposes allowed by law.

But at the meeting, a Blade reporter standing in a hallway adjacent to the executive session overheard some of the matters being discussed – matters that had nothing to do with pending litigation.

Among the topics covered: how to deal with a fixed-base operator at Toledo Express whose complaints about port authority staff had been featured in recent Blade articles, and how to react to negative publicity from The Blade. Under Ohio sunshine laws, those are not acceptable reasons for a public body to meet in private.

The next day, The Blade requested a copy of a tape recording made of the executive session, only to learn that then-airport director Mark VanLoh had already erased the recording.

Two days later, the newspaper filed suit against the port, alleging a “pattern of willful, unlawful conduct” in violation of public meetings laws.

Among the specific charges: that the executive session was illegal; that Mr. VanLoh had destroyed a public record; that the port charged too much for photocopies made for reporters and the public.

The suit also alleged that an executive session held on Oct. 23, 1997, was also illegal. Then-port board member Bill Boyle said after that session that the board had discussed a Blade editorial they considered unfair, as well as how to repond to Blade coverage of the port.

The port authority countersued the newspaper, saying that The Blade’s reporter had improperly listened in on the Dec. 15 executive session.

Under the settlement approved yesterday, both suits were dropped, although either party could choose to refile at a later date.

The port authority agreed to:

* Hire an outside attorney to attend all executive sessions and record the proceedings. The attorney, William Connelly of Connelly, Soutar & Jackson, will keep the tapes. In the event that The Blade or any other news organization argues that an executive session was held illegally a judge could choose to listen to those tapes to make a ruling.

* Provide “reasonable written notice” to an outside monitor appointed by the port and “acceptable to The Blade” before going into executive session. Currently, the port board can go into executive session at any time it chooses, at any meeting, and without any advance notice.

The port and the newspaper have agreed to appoint local attorney John Carey, of Watkins, Bates & Carey, as monitor. The port will provide notice to a Blade attorney.

* Comply with all state public meetings laws.

The agreement will last for 18 months, which Mr. Hartung said was a compromise between the lengths of time requested by the two sides. The port authority will pay the attorney’s fees of Mr. Connelly and Mr. Carey.

Mr. Marburger said that to his knowledge no public agency has ever agreed to submit to such conditions in conducting closed meetings.

“No court could have ordered these concessions,” he said.

Mr. Block called the settlement “a precedent-setting victory” for The Blade. “On behalf of the cause of openness in Ohio, we stopped them,” he said. “They broke the law, and we didn’t let them get away with it.”

He said that the newspaper had decided to settle the lawsuit – something it had never done before in an Open Meetings and Open Records case – because a court resolution was being delayed for too long.

“I think they want to get this thing out of the way,” he said. “They need to rebuild public trust, and they have to do penance for the sins of the past.”

Mr. Hartung said that the port had done nothing wrong, but wanted to avoid committing too much of its resources to a protracted legal fight.

“Any time you can settle a legal matter out of court, I think it’s a positive outcome,” he said.

Mr. Block said the public agency was in denial.

“They still refuse to understand that they broke the laws of the state of Ohio,” he said.

J. Patrick Nicholson, the port board’s vice chairman who ran yesterday’s meeting because chairman G. Ray Medlin was out of town, said that he supports the agreement. He particularly lauded the attorneys for both sides, The Blade’s Fritz Byers and Mr. Connelly, who represented the port.

“I’ve never seen two people fight harder to find a solution acceptable to two strong bodies,” he said. “I think it’s a fair and responsible settlement, and I compliment all parties involved.”

The board voted on the settlement after a 30-minute executive session to consider The Blade’s litigation.

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