Liberty Township residents are asking Ohio’s Fifth District Court of Appeals to affirm a lower court’s ruling that notes related to an investigation into the township’s former fire chief are public documents.
Township residents Mark Gerber and James Hurt, the plaintiffs and appellees in the case, and the Ohio Coalition for Open Government filed briefs with the court of appeals June 26 asking it to support the Court of Claims’ judgment.
Gerber and Hurt have maintained that the notes of Douglas Duckett, a Cincinnati attorney hired by township trustees to investigate the conduct of former Fire Chief Tim Jensen are public records. Jensen accepted a position as fire prevention officer as part of a settlement with the township in the fall of 2016. Trustees hired Thomas O’Brien as the township’s new fire chief Feb. 22, 2017.
The conclusion of Gerber and Hurt’s brief states, “Clearly, the records are public, and meet each of the criteria for their release as public records. They were created as part of a governmental function and paid for with public funds. The Special Master and Court of Claims’ found the notes to be public records subject to disclosure, following an exhaustive review of the record and applicable case law.”
“… the appellant (Liberty Township) has obviously filed this appeal with the intent to continue delaying compliance with the court of claims’ order for no reasonable cause … ,” Gerber and Hurt contend.
“This is the first case from the Ohio Court of Claims to go for an appeal,” Hurt said. “We are the first and the only one, at least for now.”
Hurt told The Gazette that all he and Gerber want is an “economical and expeditious” resolution to their request for the documents, but the township is standing in the way of that process.
The Court of Claims ordered the release of Duckett’s notes March 29.
The Ohio Coalition for Open Government brief supports Gerber and Hurt’s claim that Duckett’s notes meet the criteria of public documents, stating, “The Ohio Supreme Court found that private entities are subject to the Public Records Act if they satisfy a balancing test that examines: (1) whether the entity performs a governmental function, (2) the level of government finding, (3) the extent of government involvement or regulation, and (4) whether the entity was created by the government or to avoid the requirements of the Public record Act.”
“Based on the Special Master’s findings, Duckett satisfies at least three of the four factors. First he was appointed to perform a government function … . Second, his investigation was funded by the township. Third, appellant was heavily involved with Duckett’s activities.”
Dennis R. Hetzel, Ohio News Media Association president and executive director, testified May 24, 2016 before the Ohio House Government Accountability and Oversight Committee in support of Senate Bill 321 that created the procedure within the Court of Claims.
“First, these records should be open, as the Court of Claims has clearly affirmed,” Hetzel said in an email to The Gazette. “Second, this case tests the validity of the new Court of Claims process. For the first time in Ohio, average citizens have an effective and affordable avenue to contest government secrecy.”
Hetzel said the township’s desire to extend the fight to the appellate court undermines the law.
“Under their logic, critical public records could be made secret simply by having a private person do the government’s business with the government’s direction and oversight,” he said. “We hope the appeals court sets the bar very high before it will allow a governmental body to overturn a decision this decisive and clear in favor of citizens.”
The Ohio Township Association and the Ohio Public Employer Labor Relations Association filed briefs with the court June 5 supporting Liberty Township’s appeal to overturn the court’s decision on the notes.
The OTA motion states, “(The Ohio Court of Claims’) decision will directly affect the ability of Ohio’s townships to have thorough, objective investigations conducted of township personnel.”
The OPELRA motion argues public offices should be able to “interview witnesses and review documents” in an investigation “without every related note or scrap of paper” being disclosed.
The Gazette contacted Liberty Township’s Administrator Matt Huffman for comment. He said the township could not comment on the case at this time because it is involved in “ongoing litigation.”
Gerber and Hurt filed with the Court of Claims Nov. 21 against the township after being denied their request for the notes.
The Court of Claims ruled Duckett’s notes from his investigation were public documents and ordered their release March 29.
Township attorney Stephanie Schoolcraft asked the appellate court to review “whether the personal notes of a non-employee private citizen appointed pursuant to the Ohio Revised Code are public records even though the personal notes were not provided to, maintained, or used by … Liberty Township.”
D. Anthony Botkin may be reached at 740-413-0902 or on Twitter @dabotkin.