The Columbus Council reached consensus on a resolution

Council uses email to build consensus on hot-potato solution to Hamas-Israel conflict.

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 when drafting a resolution on the Israel-Hamas conflict.

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

“We are committed to conducting our deliberations at our meetings and hearings, in accordance with the Ohio Open Meetings Act to ensure transparency and public participation,” said Jose Rodriguez, a City Council spokesman, in an emailed response to the question of whether the council routinely uses email to gauge members’ sentiments about supporting future votes.

The final resolution condemned both the Hamas terrorist attacks on Israel and the hostage-taking of innocent civilians on October 7 and the ongoing humanitarian crisis and the killing of Palestinian civilians in Gaza during the past five months of military warfare. It also called for “an immediate, lasting and mutual end to hostilities in Gaza; the release of hostages and prisoners; and an urgent deployment 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. “Send comments to me and John. CP Hardin is starting to make calls, but the draft language won’t come out until we get feedback from every member.

“Please do not share externally,” Brown added.

The email was sent to the city-issued “.gov” email accounts of the eight council members. The feedback began circulating in numerous emails sent around by council members, including to their staff.

“I am concerned that we are setting a precedent and other groups will demand that we issue resolutions on other foreign policy issues that affect their community,” Councilwoman Nancy Day-Achauer responded in a follow-up email. “I am also concerned that we will now see an increase in people protesting at council meetings about things that are outside our remit.” Day-Achauer also questioned whether the resolution would call for a “ceasefire,” which is a pause — and not an end — to hostilities, not to be confused with a peace treaty.

“I deeply agree and that is the one word that will trigger both sides,” Brown wrote back. In another email in response to additional suggestions, Brown told Day-Achauer: “Thanks. 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 to the group of eight, adding that some of the council members’ thoughts had been “incorporated.” He again warned that members “do not forward or share this text (of the resolution) with anyone.”

Did the council break Ohio law?

In a letter dated May 1 that was emailed individually to each of the nine Democratic council members, Republican State Auditor Keith Faber warned that his office had received information indicating that the council had engaged in official communications outside of a public meeting about Hamas – Israel’s resolution. Part of the evidence cited by Faber was a Dispatch story from late March that quoted Councilman Christopher L. Wyche as saying, “My office coordinated with other offices to try to create a cease-fire resolution that everyone could get behind . . . Unfortunately, we could not come to an agreement.”

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

“Auditor of State Faber is on to something here,” said Mark Weaver, a former assistant state attorney who co-authored eight editions of the “Yellow Book,” the unofficial name for the official manual to Ohio’s sunshine laws that govern the public’s right to conduct business. is carried out publicly.

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 e-mail chat,” 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 $500 fines, attorneys’ fees and a restraining order prohibiting the behavior.

While the topic of Middle East peace was ostensibly outside the council’s normal remit — dealing with a statement about a highly charged and divisive foreign conflict — there are no exceptions, Weaver said. Four of the nine councilors could have deliberated, but when a fifth enters the fray, it is illegal, he added. And it doesn’t matter if the debate takes place in a room or electronically.

Any member of the public can sue to enforce the bylaws in court, and “if the judge gives an order saying ‘don’t do it again,’ and if they do it again, the judge can remove all the council members from their offices, and appoint new people” , what Weaver refers to as “the death penalty under the Open Meetings Act.”

“Yes, you can be removed from office,” agreed Phil Harmon, one of the plaintiffs’ attorneys in “White v. King,” the Ohio Supreme Court ruling that found the Olentangy Board of Education guilty of violating the law by using a series of emails to bypass a public meeting about an official response to a critical Dispatch editorial in 2012. And Harmon doesn’t think an officer would necessarily have to be a repeat offender to be removed, depending on the severity of the incident.

“This is serious stuff,” Harmon said.

While the council could have appointed its staff to create draft resolutions, that work must then be presented to the council in open meeting — not in private — for debate and changes to the final product, Weaver said. While the chambers during several meetings were packed with mostly pro-Palestinian protesters carrying banners and shouting demands, Weaver said the law’s remedy for that is to have disruptive substances removed from the room — not to conduct official business in secret.

One of the pro-Palestinian protesters, Columbus attorney Mazen Rasoul, had been lobbying members of the council to approve a cease-fire resolution since last fall, but was repeatedly told by officials that the council could not move forward until all nine members agreed on the draft wording, he told The Dispatch.

If true, it suggests the council deliberated privately before the meeting. And Rasoul believes based on statements from council members that a majority of the nine members supported the adoption of a resolution months before it was reached.

“They specifically said they only bring resolutions up for a vote if they have unanimous approval… They said it in the context that this is council policy,” noting that he also heard similar statements from some suburban councilors his group contacted.

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

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

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