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The Ohio Patrolmen's Benevolent Association (O.P.B.A)

Ohio Public Records Law – A Useful Tool of the Labor Union


Thomas Jefferson wrote that “Information is the currency of democracy.”  In the world of law enforcement labor organizations, information may, indeed, be currency.  Information may be the difference between a 1.5% pay raise and a 2.5% pay raise.  It may mean the difference between a union member being terminated or having his job restored by an arbitrator.

Imagine buying car.  As the potential purchaser, you would love to know the true manufacturing and overhead cost of the car, so that you could negotiate as close to that number as possible, thus putting yourself in the best position.  Understandably, the salesperson does not want you to know the accurate numbers or the dealership’s true bottom line.  

Likewise, in the field of public sector labor law, we sometimes find that management does not necessarily want to advertise its true financial picture.  The management negotiator may state or testify that a governmental entity’s General Fund balance has decreased sharply since the financial collapse of 2008, but that negotiator may go out of his or her way not to disclose that monies have since been strategically siphoned off and hidden in a capital fund or a special project fund.  Unscrupulous finance department personnel seem to have a knack for “hiding” money when it comes time for collective bargaining.

Public sector labor unions have always had many challenges with respect to getting business done on behalf of their members.  We are faced with unreasonably tight-fisted management negotiators and obstructionist bureaucrats at every turn.  Not the least of our challenges is the ability to obtain timely, relevant, and accurate information, especially from those against whom we bargain and litigate.  

We need good, accurate information when collectively bargaining, when handling disciplinary matters, when processing grievances, and when litigating unfair labor practice charges.  So, how does one obtain such information from one’s opponent in these matters?  One answer is through properly made public records requests.  In practice, a bargaining unit member or a union advocate making such a request must be able to effectively navigate Ohio’s sometimes tricky Sunshine Laws so as to obtain that information which will actually make a difference.

This article seeks to provide some guidance on how to properly make a public records request.  Before making a public records request, the requester may wish to become familiar with Ohio Revised Code Chapter 149, under which most public records requests in Ohio are made.  Additionally, the requester should be armed with the latest edition of the Ohio’s Attorney General’s “Ohio Sunshine Laws – An Open Government Resource Manual,” which is commonly referred to as the “Yellow Book.”  The 2012 version of this comprehensive guide can be found at www.ohioattorneygeneral.gov/YellowBook.

One threshold issue related to making a public records request is whether the entity whose records are being sought is actually a “public office” within the meaning of R.C. 149.011(A), thus making it subject to public records requests.  Obvious public offices are cities, counties, townships, and villages.  Interestingly, any private entity that is the “functional equivalent” of a government entity is also properly subject to a records request.

Once the requester establishes that the requestee is, in fact, a public office or functional equivalent, the requester needs to analyze whether the information sought is actually a “public record” within the meaning of R.C. 149.011(G).  A public record is:

1)    That which is stored on a fixed medium (i.e., tapes, e-mails, photos, film, video, paper, etc.), AND
2)    Is created or received by or has come under the jurisdiction of a public office, AND
3)    The record relates to what that public office does (i.e., the organization, functions, policies, decisions, procedures, operations, or other activities of the office).

Each and every one of these elements must be met in order for an item to be subject to a public records request.  Here are some practical examples of items which are not public records:  

1)    An e-mail sent or received from a public sector e-mail account asking a coworker to go to lunch.  Note that in order for an e-mail to be a public record, it must relate to what a public office does.
2)    A record not yet in existence.  If a requester asks a City to create a document or record that does not already exist, the City has no obligation to create a record and release that information.
3)    A record that once existed, but has been lawfully disposed of in accordance with a public employer’s approved records retention policy.  If a public office does not possess a record, then it has no obligation to produce it upon request.
4)    Notes taken by a member of a public office, if those notes are kept as personal papers (not official records), are kept for the employee’s own convenience, and other employees did not have access to the notes.

There are some specific statutory exceptions to public records requests.  Examples include healthcare provider-patient records (a specific example of this where a County Jail is actually a health care provider for inmates).  Student records are another example.   More importantly for law enforcement personnel is the statutory exemption for the residential and family information of peace officers, parole officers, probation officers, bailiffs, prosecuting attorneys, assistant prosecuting attorneys, correctional employees, youth services employees, firefighters, EMT’s, and BCI&I investigators.   Likewise, Social Security numbers and direct deposit bank account information is statutorily protected from public records requests.


The final exception to the Public Records Act that will be discussed in this article is the Confidential Law Enforcement Investigatory Record.  A CLEIR is not a public record if it pertains to a “law enforcement matter” involving a specific suspicion of misconduct and the investigating agency has the authority to enforce law.  That misconduct must be criminal, civil, or administrative in nature, but does not include an investigation exclusively concerning internal personnel discipline.  If internal personnel discipline is a potential outcome, in addition to other criminal, civil, or administrative penalties which are also potential outcomes, then the CLEIR remains a non-public record.  However, if the law enforcement employer states that an investigation is exclusively concerning internal personnel discipline, then recorded material concerning the investigation is properly subject to a public records request.  If the release of a CLEIR, would reveal the name of an uncharged suspect, the name of a confidential source, put someone’s physical safety at risk, or reveal investigatory techniques or procedures, then the CLEIR may not be subject to a records request.

In terms of format, there is no special way of making a public records request.  Any “person” can make a records request.   A request may be written or verbal.  The requester’s motivation for the request is not relevant, nor is the identity of the requester.  The requester must make the request specific enough so that the public office can fulfill the request, if it is possible to fulfill, and must indicate a mechanism for how to receive the information that he or she has requested.  Otherwise, there are no “magic words” necessary to make a lawful public records request.  The public office cannot require the requester to put the request in writing or identify himself or herself.

The tips discussed here are merely a starting point to a large body of law related to public records and open government.  Should you have any questions on the issue, please do not hesitate to contact your OPBA Attorney or Business Agent for further guidance.








 

When is Property Subject to Criminal Forfeiture?

Imagine you pull over a driver for a routine traffic stop. The driver, a known drug dealer, is driving under a suspended license. After arresting the driver, you search his car and find $7,000 in the glove compartment. The driver cannot account for the source of the money.

That's quite a large sum of cash, and especially suspicious for a known criminal. The money is unaccounted for and discovered during the commission of a crime. Is the $7,000 subject to criminal forfeiture?

If you said yes, you guessed incorrectly.

In order to be eligible for criminal forfeiture, the property must meet two elements. First, it must belong to the defendant. Second, the property must be tied to the charged crime.

Referring back to our example, the money meets the first element of forfeiture. There is no reason to suspect the money would belong to anyone other than the driver, especially if the car he is driving is his.

However, the money does not meet the second element of forfeiture. Although the driver was committing a crime by driving under suspension, the money has no bearing on that particular crime. A criminal plus unaccounted money does not equal a forfeiture.

According to section 2981.02 of the Ohio Revised Code, property subject to forfeiture must either be contraband or property that was obtained through or used during the commission of the particular crime for which the suspect is charged.

It is important to note the difference between property seized as evidence and property seized as a criminal forfeiture. Evidence will be returned to its owner after the defendant's case is resolved – even if law enforcement has reason to suspect that the property was illegally obtained.

We once had a case in which men broke into a known drug dealer's home in a failed robbery attempt. When police arrived on the scene, they discovered thousands of dollars in cash in the man's home. Although the officers had good reason to believe that the money was profit from dealing drugs, the cash belonged to the victim and thus was not tied to the charges brought against the defendants. Therefore, it was not subject to forfeiture and was returned to the victim.

Criminal forfeiture is presented to the grand jury as a specification tied to a particular charge. The grand jury (or judge or jury in a trial) must first consider the actual charge. Then the jury must determine whether the property was used during the commission of the crime.

Officers testifying about forfeiture must be prepared to establish a connection between the property sought for forfeiture and the crime charged. Simply encountering a suspect in the possession of property for which they cannot account does not automatically mean the property is subject to forfeiture. The proper connection must be made between the property and the actual crime charged. The stronger the evidence, the more likely the judge or jury will find in favor of the forfeiture specification.

When considering seizing property as forfeiture, it may be helpful to consider the following questions:
•    Could the offense have been committed without the presence of the property in question?
•    Did the suspect have the property in his possession primarily to commit or attempt to commit the offense for which he has been charged?
•    How instrumental was the property in the commission of the crime?

In a criminal case, forfeiture can be considered a sanction or punishment. Therefore, it is the State's burden to prove beyond a reasonable doubt that the property in question meets all the requirements of forfeiture. The judge or jury must consider the above questions when determining whether property is subject to forfeiture. Considering those questions before you seize property may help to strengthen the case when presented to a judge or jury.

If the burden of proof seems too high for criminal forfeiture, civil forfeiture statutes exist and are successfully used by this office. The civil forfeiture burden is preponderance of the evidence. We can subpoena tax returns and other documents to shore up the proof for civil forfeiture. Civil forfeiture requires the proceeds to be derived from:
•    an offense or to be the instrumentality that is used in or intended to be used in the commission or facilitation of a felony offense or a misdemeanor authorized by statute, or
•    an attempt to commit, complicity in committing, or conspiracy to commit either of those offenses.

Interrogations and depositions can be used in a civil case as an additional tool for forfeiture. When in doubt about what to do, contact this office to discuss the information you have.

We have recently seen an increase in forfeiture specifications, and have had greater success with both criminal and civil forfeitures. By continuing to work together, we hope to continue that success.


This article is not to be considered legal advice. Please consult your police legal advisor regarding any legal issue.

Sherri Bevan Walsh
Summit County Prosecuting Attorney

 

NAPO Victory: Treasury Issues Changes To IRS Normal Retirement Age

NAPO has been working with the Treasury Department, Members of Congress and members of the pension community on Treasury regulations and the enactment of Normal Retirement Age rules. Earlier this year NAPO met with key policy makers within the Treasury Department; Mark Iwry - the Senior Advisor to the Secretary and the Deputy Assistant Secretary for Retirement and Health Policy, George Bostick - the Benefits Tax Counsel, Harlan Weller - the Actuary in the Office of Tax Policy, Bill Bortz - the Associate Benefits Tax Counsel in the Office of Tax Policy and Bill Evans the Attorney-Advisor in the Office of Benefits Tax Counsel.  NAPO addressed the concerns of rank-and-file law enforcement on the pending implications of the proposed January 1, 2013 enactment of Normal Retirement Age guidelines

On April 18th, Treasury released updated guidance making modifications to the 2007 regulations. These changes are an important step in the right direction for NAPO’s membership for several reasons.

First, the “safe harbor” provision that allows public safety to qualify for “Early Unreduced Retirement” will now encompass pension plans that are combined with other plans. Therefore, officers will no longer be forced to wait longer to retire and receive benefits. NAPO has worked closely with the offices of Senator Herb Kohl (D-WI), Representative Bill Pascrell (D-NJ), Representative Ron Kind (D-WI) and Representative Sean Duffy (R-WI) to address this specific issue. We would like to thank them for their hard work and leadership.

Secondly, this notification clarifies in-service distributions for public safety. As long as an individual is participating in a plan and is older than 62, they are entitled to collect in-service distribution. We are aware that this does not solve all the problems with this issue and will continue to seek a legislative fix.

Finally, and most importantly, for the immediate future, the enactment date for the IRS Normal Retirement Age has once again been postponed. The new date of enactment has been moved to January 1, 2015.

NAPO will continue to seek a full exemption for public safety from the Normal Retirement Age and will work to raise awareness of the issues of HELPS Benefits. (If an officer retired under “Early Unreduced Retirement” then they do not qualify for HELPS Benefits. Under the HELPS provision, a public safety officer must have retired at “Normal Retirement Age” in order to obtain the privilege to use up to $3,000 from their retirement savings on a pre-tax basis for use toward health care insurance and long-term care insurance premiums.)

Please contact NAPO’s Director of Government Affairs, Rachel Hedge via email ( This e-mail address is being protected from spambots. You need JavaScript enabled to view it ) or phone (703-549-0775) if you have any questions regarding this or any other legislative issues.

 

Recent Legislative Victories: Amendments To Violence Against Women Act

Sometimes it is as important to fight for the prevention of legislation as it is to support it.

When the Senate considered the Violence Against Women Act (VAWA), S. 1925 NAPO was once again the premier law enforcement organization to take a position and oppose two harmful amendments to the bill.

The first was Senator Tom Coburn’s (R-OK) Amendment #2085 (S.A.2085), which identifies unnecessary duplication within the Department of Justice. The amendment would have a negative impact. Superficially it seems like a good piece of legislation. However, it is constructed in a one-size-fits-all manner and would have a negative impact on all Justice Programs. S.A.2085 is particularly harmful to rank-and-file because it requires the Department of Justice to cut its grant programs by at least $780 million. This cut would harm key programs that benefit law enforcement. Additionally, it provides for these cuts to be made without Congressional input.

The second was John Cornyn’s (R-TX) Amendment #2086 (S.A.2086), better known as the Safer Act, The Sexual Assault Forensic Evidence Registry Act of 2012. S.A. 2086 takes funding away from state and local law enforcement crime laboratories and requires certain grantees to send all rape kits to regional crime labs. In so doing, jurisdictions must divert time and resources away from their basic responsibilities. The language from the amendment was incorrect as written. It unintentionally decreases the amount of funding going to state and local crime laboratories that have already been appropriated in FY12 and proposed in FY13 funding bills. This would divert 7 percent of funding ($8.19 million for FY13).

Due to NAPO’s advanced opposition to S.A. 2085 and our work to educate members on its negative repercussion for law enforcement, the Coburn Amendment was not considered in the series of floor votes. This is one of the rare instances where what we prevent from happening was more important that what we can make happen.

The Cornyn Amendment failed to reach the necessary 60 votes needed for passage by 50 – 48 with 2 members not voting. To see how your Senator voted please click here.

The 112th Congress is nearly three-quarters complete and a vast majority of the votes that NAPO has deemed important have resulted in NAPO successes. This would not be possible without our membership continuing to contact members of Congress. Thank you for your hard work. It is important and appreciated.