This past July, the Supreme Court of Ohio issued an important decision in the case known as Look Ahead America v. Stark County Board of Elections. The ruling clarifies Ohio Revised Code (RC) 121.22(G)(2) in a way that may limit the ability of boards of education to use this provision to enter executive session in certain instances. This provision enables public bodies to enter executive session for three distinct purposes: “to consider the purchase of property for public purposes, the sale of property at competitive bidding, or the sale or other disposition of unneeded, obsolete, or unfit-for-use property in…if premature disclosure of information would give an unfair competitive or bargaining advantage to a person whose personal, private interest is adverse to the general public interest.”
The question in the case was whether the final clause of the statute (“if premature disclosure of information would give an unfair competitive or bargaining advantage to a person whose personal, private interest is adverse to the general public interest”) applies to all three possible reasons for going into executive session listed in RC 121.22(G)(2) or only the third listed. In other words, may a public body enter executive session to consider the purchase of property for public purposes or the sale of property at competitive bidding without establishing that premature disclosure of that information would give an unfair advantage to one whose interest was adverse to the public interest?
The court answered this question “no.” This decision means that boards who want to enter executive session to consider the purchase of property, or the sale of property at competitive bidding, must ensure that the final clause regarding unfair advantage applies and include it in the motion to go into executive session. Boards of education routinely utilize this provision to enter executive session to discuss property transactions, meaning that this decision is notable and could impact many boards. This interpretation of the statute runs counter to decisions reached by lower courts in this case and may conflict with boards’ previous understanding of how this provision works. If your board intends to enter executive session to consider the purchase or sale of property, your board will need to be cognizant of this decision. Specific questions about the application of the decision should be directed to your board’s legal counsel.
A more robust summary of this decision can be found in the most recent edition of the School Law Summary (SLS). If your district is a member of the OSBA Legal Assistance Fund, you have a subscription to SLS and can access the most recent edition here. If your district would like to join the LAF, you can find more information about that process here or you may contact the division of legal services directly at 855-OSBA-LAW.