Mike Curtin commentary: Ohio Constitution could use some tweaking (Columbus Dispatch 11/15/10)

Mike Curtin commentary: Ohio Constitution could use some tweaking (Columbus Dispatch 11/15/10)

By Mike Curtin The Columbus Dispatch  •  Monday November 15, 2010

Ohio could benefit from a state constitutional revision commission.

The state last utilized such a panel in 1971-1977. It was a success. The commission recommended 18 constitutional amendments, 15 of which were adopted by Ohio voters.

Among other revisions, that effort produced:

  • Tax reform, including classifying real property for tax purposes and taxing agricultural land at current value.
  • Ballot reform, by creating the Ohio Ballot Board to ensure uniformity and requiring the rotation of candidate names on the ballot to ensure fairness.
  • Executive branch reform, requiring election of the governor and lieutenant governor in tandem, and establishing an order of gubernatorial succession.
  • Enfranchisement reform, conforming Ohio law with the federal law granting 18-year-olds the right to vote.
  • County government reform, establishing a permissive, alternative form of county government.

Ohio faces plentiful challenges. Some of them cannot be solved without changes in the state constitution.

Adopted in 1851, it is one of the oldest state constitutions in America and contains many antiquated provisions.

A top-level, bipartisan commission, comprised of state lawmakers, academics and business and labor leaders, would educate and inform all Ohioans of potential reforms to better position our state for the challenges of the 21st century.

Among other topics, the panel most likely would examine tax reform, state and local government reform, term limits, merit selection of judges and reapportionment reform.

Ohio has not thoroughly examined its constitution, its basic governing document, in two generations. A new exam is overdue.

Because of its success, the previous experience should be studied and emulated.

In August 1969, Gov. James A. Rhodes and the General Assembly passed legislation creating a 32-member commission, including 12 state lawmakers.

Ohio was rather late to the game, as the period of 1950-1970 gave rise to constitutional-reform movements in 45 states.

There was widespread recognition that state constitutions contained many provisions that were outmoded.

Ohio’s state leaders also recognized that, in 1972, voters would face the ballot question, which appears every 20 years, of whether to call for a state constitutional convention.

Ohio’s constitutional requirement to ask the voters this question every 20 years follows Thomas Jefferson’s maxim that each generation should have the opportunity to choose its own form of government.

The late 1960s were politically and socially tumultuous, and Statehouse leaders were concerned over the direction a constitutional convention might take. The commission was a way to take the steam out of any momentum for a 1972 convention call.

Interestingly enough, the convention question will appear again in November 2012.

Ohio has not had a constitutional convention since 1912 and doesn’t need one now. But it does need constitutional revision.

The previous commission divided into committees (Executive/Legislative, Local Government, Finance and Taxation), met monthly and held hearings across the state. It published a newsletter to keep the public informed.

The 12 lawmaker members, chosen by legislative leaders, were politically balanced: six Democrats, six Republicans; six Senate members, six House members.

Those 12 chose the other 20 members, who were broadly representative of business, labor, the judiciary and academia.

Political balance is a key to success, because no proposed amendment to the Ohio Constitution will be approved by the voters without wide support.

With the previous commission, no proposal for a constitutional amendment could go to the General Assembly without the approval of two-thirds of commission members.

To put a proposed amendment on the ballot, both houses of the General Assembly must approve it by a three-fifths vote.

The commission was charged with completing its work by July 1, 1979. It actually finished early, delivering a final report to the General Assembly on June 30, 1977. Ohio still benefits from the work of that group.

Another study commission, if carefully selected and politically balanced, most likely would produce timely benefits for Ohio.

Mike Curtin is associate publisher emeritus of The Dispatch.

Information kept by our government should be presumed open to public (by David Marburger 3/10/13)

Article written by David Marburger, a partner at Baker Hostetler’s principal office in Cleveland. Mr. Marburger is co-author of Access with Attitude, a book about Ohio’s sunshine laws.

This op-ed appeared in the Columbus Dispatch on Sunday March 10, 2013 

Information Kept by Our Government Should be Presumed Open to Public

It’s time for the Ohio General Assembly to kill the stealth exemption.

The stealth exemption is a nickname for a series of misguided rulings by the Ohio Supreme Court in interpreting Ohio’s open-records law, our most potent catalyst for accountable government.

The court’s rulings have made Ohio the only state where citizens must prove that information kept by public agencies is supposed to be open. 

In every other state, officials must comply with public requests to see records in their custody unless the officials prove that the information matches an explicit description in a statute that identifies the kinds of information that they can withhold.

Ohio’s top court has moved that key component of open government back to the 17th century, when England ruled America.

In England, the government was the king’s government. An English citizen had to satisfy the king’s ministers that the citizen deserved to see particular records. If Mr. Jones could show that he was about to sell his land, he could see his recorded deed. 

But America emphatically rejects that idea. Officials keep and create records only for our benefit, under our authority, and with our money. Open records is the default.

In limited instances, we’ve decided that society benefits more by closing certain categories of records than by opening them. So we’ve enacted statutes that specifically identify categories of records that officials may withhold from us. How government security systems work is an example. 

But about 10 years ago, Ohio agencies began to say no even when recorded information that we requested didn’t fit any statutory exception. The agencies pounced on the statutory definition of record, which applies to recorded information that documents any activity of government. 

The logic: If official information isn’t a “record,” then it can’t be a “public record.” And if it isn’t a “public record,” the public has no right to see it. 

They insisted on narrow, highly literal interpretations of “record,” and they succeeded in persuading the Ohio Supreme Court to adopt the narrow view. Actual rulings: 

• Citizens’ letters kept by a judge that tried to influence her sentencing in a controversial criminal case — closed because they aren’t “records.”

• Parents’ letters received by a public high-school superintendent describing how the high-school basketball coach was treating the student players could be freely destroyed because they weren’t “records.”

• Responses by prospective jurors in a criminal case to the court’s written questions, and used to select which jurors to keep and exclude from the case — closed because they aren’t “records.”

• Emails among county employees using county computers while on the job that racially harassed another employee — closed because they aren’t “records.” 

• Applications to become public-school superintendent sent to the school district’s post office box at the school district’s instruction were not “records,” and so were closed until the school board disclosed them at the board’s own initiative.

The definition of record has become a stealth exemption from the public’s right to know. It’s a black hole of government-stored information that we can’t see and that no one can categorically identify.

The Ohio Supreme Court has never answered this question: Which law allows our agencies to keep recorded information that isn’t a “record”? Answer: There isn’t one.

Or this question: Which theory of democracy justifies allowing officials to conceal information kept in managing our affairs, collected using our authority, and paid for with our funds — when no law identifies that information? Same answer.

All recorded information kept by our government agencies must be presumptively open to the public unless expressly closed by statute.

If that makes the family photos on the mayor’s secretary’s desk a public record, then pass a law that exempts the personal effects of public employees that are incidental to their employment. But nothing should be exempt from public view unless one of our statutes says it is.