Learn about fair housing, margarita pictures, secret meetings and more

By Dennis Hetzel, Executive Director

Dennis Hetzel

Hetzel

Every week we get member questions to our legal hotline.  Lately, we’ve not only had more questions than usual, some of the questions have been really intriguing.  By that, I mean that neither legal counsel Lou Colombo nor I knew the answer without doing some digging.  Sometimes, we’re still not sure as not all legal questions have been settled by the courts.

Without further ado, here is a sampling of some recent questions and our answers that may be of interest. We’ll get to a few more of these in upcoming columns over the summer:

Q: Can you refresh my memory on what are the requirements on fair housing advertising guidelines in Ohio?

A: The federal and state regulations apply everywhere and have not changed much over the years. You can find the U.S. Housing and Urban Development guidelines by clicking here.  Critical point: This is one of the few areas in which the newspaper shares liability with the advertising customer for a violation.

Try to avoid any word or phrase that hints at discrimination on the basis of race, color, religion, family status (such as “no children”), disabilities, national origin, age or sex.  Newspapers have been targeted by fair housing advocacy groups over “for rent” ads, though we haven’t heard of this happening in recent years. There are some specific exceptions for roommate and dormitory-type situations and housing specifically developed for older persons.

The HUD guidelines I referenced also explain the requirements for the equal housing opportunity notice and logo at the beginning of each real estate advertising section.

Generally, if the language does not involve a member of one of the “protected classes” listed above, you’re probably okay, but you should still be careful. Why invite a problem?

Q: We have a tavern that wants to publish pictures of margaritas and advertise a special price for them as part of a “Cinco de Mayo” promotion. Can you do that in Ohio?

A: Yes, as long as you follow some simple guidelines.  A margarita photo is fine, but use caution if there are people in the photo.  It’s against the rules to “condone or encourage” excessive use or intoxication. In other words, a waiter or waitress holding a drink is fine, but it’s not a good idea to have a photo of bar patrons pouring drinks over their heads. Specific price advertising is fine, too, but state law does not allow rebates, coupons or free drink promotions.

Q: Can a public body go into an executive session to interview candidates for a vacancy on an elected board? Also, they normally tape record the public part of the meeting. This time they left the tape recorder on by mistake during the executive session. Wouldn’t that tape be a public record?

A: This is what I meant by a novel question. Taking the last question first, neither Lou Colombo nor I were certain. There probably is no case law on this subject. I don’t think the tape recording of the executive session fits into any existing exception, so you certainly could make a claim that the recording fits the definition of an open record.  On the other hand, it’s a safe bet that the Ohio Supreme Court would be sympathetic to arguments that the executive session portion of the recording wouldn’t be open. We advised the newspaper to demand the specific statutory exemption the board is claiming to block access to that part of the tape.

The first question is easier. Yes, the board can interview candidates for board vacancies in executive session, but they aren’t required to do so. Arguably, a candidate who didn’t want to be interviewed in the open probably shouldn’t be seeking a public position anyway. However, as always, they cannot vote in executive session.

Q:  I was covering a public meeting and the mayor read a citizen letter about a local controversy out loud during the meeting. Now they won’t provide a copy of the letter. Isn’t that an open record?

A: We certainly think so unless the letter somehow falls outside the definition of a public record. It can’t be an open record if it isn’t a public record. Although the courts keep narrowing the definition, the key phrase in the law is whether this is a record that “serves to document the organization, functions, policies, decisions, procedures, operations or other activities of the office.”

When officials say “no,” we always advise journalists to make the office supply the specific exemption they would cite under the law in refusing to release the record.  Then we have something specific to evaluate.

What if they still say “no,” and you aren’t prepared to go to court? (A subject for another day is why this is a bigger problem in Ohio than most other states.)   There is no cost to initiate the attorney general’s public records mediation process.  You can start this with a phone call or by completing a simple, Web-based form.  Some Ohio newspapers have obtained records this way. It’s certainly worth a try. Both parties must agree for the mediation to go forward.  The attorney general’s office also has had some success in advance of mediation by convincing local governments that the law is not on their side.

‘FAQ’ on advertising questions in the works; how to use the legal hotline

By next fall, we hope to have completed a “Frequently Asked Questions” document that answers the most common questions we get about advertising issues. We’ll post it at www.ohionews.org in the “members only” area. Updating our posted advice on Sunshine Laws also is overdue. Some of that will be handled by the website we will launch this summer for our related organization, the Ohio Coalition for Open Government.

Members tell us that our legal hotline is among ONA’s most valuable services. Just call me (614-486-6677) or email me to start the process. It’s our goal to provide solid advice to help you avoid litigation, deal with balky public officials who want to close access to information and make better decisions about when it makes sense to go to court.

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