The group of Hamilton officials took a tour of Loveland Station, with Smith afterward saying the project's developer was a company the city "absolutely" would consider for work in Hamilton.
Touring the three-story development of apartments and storefronts with Smith were council members Matt Von Stein, Kathleen Klink, Timothy Naab and Mayor Pat Moeller.
Because a majority of the seven-member council attended what amounted to a "special meeting," (as opposed to a regularly scheduled meeting) the city was required to alert the media of the tour 24 hours in advance, which applies except in cases of emergency sessions, under Ohio's open-meetings laws, said Dennis Hetzel, executive director of the Ohio Newspaper Association, which monitors such issues.
The Journal-News received notice of Tuesday’s 1:45 p.m. gathering at 11:40 a.m. Tuesday.
“No public business is going to be discussed nor any votes on anything,” city Clerk Nick Garuckas wrote in the email advising of the gathering. “This is just a tour of the facilities.”
“It certainly violates the spirit of the law, and arguably, they just didn’t do it correctly, technically, under the law,” Hetzel said. “It seems like a real stretch to me, to fit that meeting into the ‘emergency meeting notice’ requirement of the law, because that’s really designed for like, ‘Oh, my God, we’ve got to get together immediately to get more salt, because we’ve run out of salt and there’s a blizzard coming.’”
On the other hand, the way the courts have interpreted Ohio’s laws, “they could have voted to do that (tour) in closed session (excluding the public and media), because there’s case law to support that. They don’t have to do it in closed session,” he said. “Under Ohio law, if they weren’t discussing or deliberating, it was just information-gathering, fact-finding, they would be able to do that in closed session. But good for them that they weren’t going to do that.”
On the other hand, “by not giving you enough notice, there was no way for anyone but them to be on this trip,” Hetzel said.
Even if the council had decided to hold the meeting behind closed doors, the city was required to announce the meeting in advance, convene the session and then vote to make it a private gathering, he said.
With 24 hours’ notice, the media and residents might have accompanied the council, Hetzel said: “That’s why that provision’s in there.”
After the Journal-News posted a story online about the lack of 24-hour notice, Smith explained why no advisory was sent earlier.
“I’m sitting in a staff meeting this morning, and I’m telling the staff, ‘I’m going to Loveland to look at Loveland Station, and I’m taking two city council members with me,’ and the mayor says, ‘I think two more are going to go,’ ” Smith told the Journal-News. “I was like, ‘Oh, that’s great’ — We tried to get everyone to go.”
Smith, who described the tour as a fact-finding mission, said he asked Garuckas to notify news media in case anyone wanted to go.
“It was just a courtesy email,” he said. “(City Law Director) Heather (Lewis) says if we don’t deliberate or discuss, it’s not a meeting.”
Smith said he directly asked Lewis whether the media needed the required 24-hour notice.
“We’ve not noticed this as a meeting. This is just us going down to take a look at this development,” he said he told Lewis. “I said, ‘Do we need to cancel this, and do a different meeting?’ She said, ‘No, as long as you do not discuss or deliberate.’ ”
Smith said he decided to notify the media anyway.
“… as a courtesy to them, that way if they want to go along, they can hear exactly what’s being said,” he said he told Lewis.
“She just looked at me,” he said. “And she goes, ‘If you want to do it, that’s fine, it’s your call.’”
So Smith said he asked Garuckas to send the meeting notice to everyone on council’s email distribution list, which includes residents and media outlets.
“I told council, the minute they got in the car, I said, ‘Heather Lewis says we cannot discuss or deliberate this,’ ” Smith said. “‘You can go down, you can ask the developer: How many bedrooms? How many units? How much did it cost to build it? What kinds of public improvements did you ask for? You can ask those questions, but you cannot discuss amongst yourselves or deliberate.’ I said, ‘We need to do that on the council floor.’ They all said they understood.”
Instead, they discussed fun things they’re doing this summer, Smith told the Journal-News.
Smith said he made the decision to announce the meeting “because I didn’t want someone to say, ‘Wait a second, this came out of the blue. How come council’s voting on this? What do they know about this?’ I think that looks bad.”
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