#walkaway Locked Out & Kept in the Dark: Legal Challenges Loom Over Marion Mayor’s Exclusion of Whistleblower, Closed Council Meetings

I. Introduction

Purpose and Overview: This analysis examines the legality of two specific actions within the context of Marion, Ohio’s municipal government: (1) the exclusion of an elected city council member from council meetings, purportedly due to the member’s actions as a whistleblower concerning alleged unlawful activities or unethical governance; and (2) the closure of city council meetings to the public (convening an executive session) for the presumed purpose of discussing information provided by a whistleblower or matters related to the whistleblower’s status. This is mentioned on a leaked audio file presented by Host Scott Spears, in which Twila Laing and Mayor Bill Collins were discussing closing meetings to the public, and excluding Councilman Jason Schaber from his duties.

Relevant portions of the Scott Spears show in question:

Based on a review of the Ohio Revised Code and relevant Marion City Ordinances, this report concludes that the Mayor of Marion likely lacks the legal authority to unilaterally exclude a council member from meetings for whistleblowing activities. Furthermore, closing council meetings to the public to discuss whistleblower allegations, particularly those involving elected officials, likely violates Ohio’s Open Meetings Act (Sunshine Law). The assessment supporting these conclusions is based upon the applicable provisions of the Marion City Code, the Ohio Revised Code (ORC), and relevant legal principles governing municipal corporations, whistleblower protections, and public meeting requirements in Ohio.

Citizen Action Network Called to Action:

Context Marion, Ohio operates as a statutory city, meaning its governmental structure, powers, and limitations are primarily defined by the Ohio Revised Code (ORC) rather than a home-rule charter. This legal framework establishes specific roles and boundaries for the city’s legislative body (City Council) and its chief executive (the Mayor). The questions presented engage fundamental principles of representative governance, including the rights and responsibilities of elected officials to participate in the legislative process, the public policy favoring the exposure of waste, fraud, and abuse through whistleblowing, and the vital importance of government transparency as mandated by Ohio’s Open Meetings Act. The analysis navigates the interplay between the authority granted to municipal bodies to maintain order and conduct business, the rights of individual council members, potential statutory protections for whistleblowers, and the public’s right to observe governmental deliberations.

Roadmap This report will proceed by first outlining the governance structure of Marion, focusing on the powers and duties of the City Council and the Mayor, particularly concerning council meetings and member conduct, as defined by the ORC and local ordinances (specifically Marion City Code Chapter 111). Second, it will examine Ohio’s statutory framework for whistleblower protection, assessing its applicability to elected municipal officials. Third, it will analyze Ohio’s Open Meetings Act (ORC § 121.22), detailing the requirements for public meetings and the narrow exceptions permitting closed executive sessions. Fourth, these legal frameworks will be synthesized to evaluate the legality of excluding a whistleblower council member from meetings. Fifth, a similar synthesis will evaluate the legality of closing council meetings to discuss whistleblower-related matters. Sixth, the potential relevance of Ohio Attorney General opinions or court decisions will be noted. Finally, the report will conclude with a summary of findings and recommendations.

Governing Principles The central legal tension explored herein involves balancing the legitimate powers of municipal government bodies to manage their proceedings and discipline members against the fundamental rights of elected officials to perform their representative duties and the specific legal protections potentially afforded to individuals who report wrongdoing. Compounding this is the strong public policy, codified in state law, demanding transparency in governmental affairs. As Marion is a statutory city , the Ohio Revised Code serves as the primary source of authority, and any local ordinances must be consistent with this state framework. Determining the legality of the actions in question requires careful examination of how these potentially competing legal mandates intersect within Marion’s specific governmental context.

Looking Closer:

II. Governance Framework in Marion, Ohio (Statutory City)

• A. City Council: Structure, Powers, Member Rights/Responsibilities

• Statutory Basis As a statutory city, Marion’s City Council derives its existence, structure, and core powers directly from the Ohio Revised Code, primarily Title 7, Chapter 731. Municipalities can adopt ordinances to supplement state law, provided they are consistent with the ORC framework. Marion’s Codified Ordinances, specifically Title Three – Legislative, Chapter 111 (Council), contains such local provisions.
• Legislative Power Under the ORC, the legislative power of a city is vested in its council [(A)]. This encompasses the authority to pass ordinances and resolutions, appropriate funds, levy taxes, enter into contracts, issue debt, and manage public property. Specifically, the council has the care, supervision, and control over public infrastructure such as highways, streets, alleys, sidewalks, and public grounds within the city limits [ (citing ORC 731.05)].
• Membership & Qualifications ORC § 731.02 establishes the qualifications for city council members, requiring them to be electors of the city and, if elected by ward, residents of that ward for at least one year prior to election. Council members cannot hold other public office (with limited exceptions) or be interested in city contracts. Crucially, the council itself serves as the judge of the election and qualifications of its own members, as stipulated in ORC § 731.44.
• Member Rights & Duties The ORC framework implies fundamental rights for council members necessary for performing their legislative duties. The requirement for a quorum (a majority of members) to conduct business under ORC § 731.44 and Marion Code 111.02, and the mandate for public meetings under ORC § 731.46 inherently presume a member’s right to attend meetings. Members have the right to participate in deliberations and cast votes on ordinances and resolutions, typically requiring a majority vote for passage unless otherwise specified by law [ (citing ORC 731.17)]. Their duties involve representing their constituents, participating in the legislative process, and exercising the powers vested in the council. While ORC § 731.05 grants council general powers , Marion Code Chapter 111 outlines specific procedural aspects like meeting times (111.01), quorum requirements (111.02), election and duties of the President (111.03) and President Pro Tempore (111.04), and duties of the Clerk (111.05). The position of a council member is derived from state law and election by the people; any attempt to curtail the fundamental rights associated with that office, such as the right to attend and participate in meetings, demands clear and explicit legal justification grounded in either the ORC or valid, consistent local ordinances.
• B. Mayor: Powers and Duties Relative to Council

• Statutory Basis The powers and duties of the Mayor in a statutory city like Marion are primarily defined by ORC Title 7, Chapter 733. Local specifics would normally be found in Marion City Code Title Five – Administrative, Chapter 121 (Mayor). However, as confirmed by review of the city’s administrative code, Chapter 121 contains no substantive sections and only references the controlling Ohio Revised Code statutes. Therefore, the analysis relies entirely on the state statutory framework.
• Executive Role The Mayor serves as the city’s chief executive officer and the chief conservator of the peace within the city. Key mayoral duties include enforcing city ordinances and resolutions , signing official documents like commissions, licenses, and permits , appointing the directors of public service and public safety (unless merged) and heads of subdepartments , and supervising the conduct of city officers [ (citing ORC 733.34)]. The Mayor also has the authority to fill vacancies in appointive city offices [ (citing ORC 733.31(B))] and, under specific circumstances involving independent candidates or party committees, certain elective offices [ (citing ORC 733.31(D), (E))].
• Relationship with Council The ORC establishes a clear separation between the Mayor’s executive functions and the Council’s legislative authority. Unlike a village mayor who presides over the legislative authority [ (citing ORC 733.24)], the mayor of a statutory city does not typically preside over council meetings. City council elects its own President from its membership to preside [ (citing ORC 731.04), (citing ORC 733.01), ], as confirmed by Marion Code 111.03. Council also elects a President Pro Tempore [ (citing ORC 731.04)], confirmed by Marion Code 111.04. The Mayor’s interaction with the council is primarily advisory and responsive, not controlling. The Mayor is required to attend council meetings when specifically requested by the council and must answer questions posed by members [ (citing ORC 733.06), ]. The Mayor is also mandated to make written recommendations to the council regarding the city’s welfare [ (citing ORC 733.06), ]. A significant power held by the Mayor is the authority to veto ordinances passed by the council, subject to council override [ (citing ORC 731.27), ], a power referenced in the notes for Marion Code Chapter 121. This veto power represents an executive check on legislative action, not a mechanism for controlling the internal proceedings or membership of the council itself. The statutory framework assigns the Mayor no authority to dictate council meeting procedures, determine attendance, or discipline council members.
• Status of Marion City Code Chapter 121 As noted, Marion City Code Chapter 121 contains no local provisions defining the Mayor’s role relative to Council; it defers entirely to the Ohio Revised Code. Therefore, the analysis based on state law remains complete and accurate.
• C. Council Meeting Procedures and Member Discipline

• Council Rules ORC § 731.45 explicitly grants the city council the authority to determine its own rules of procedure. Marion Code 111.06 affirms this, stating “Council shall determine its own rules.” However, Chapter 111 itself does not enumerate specific rules of procedure or define standards of conduct beyond what is in the ORC. It primarily outlines meeting logistics (111.01), quorum (111.02), officers (111.03, 111.04), Clerk duties (111.05), and the disciplinary framework mirroring state law (111.07). Therefore, while Council has the power to adopt more detailed rules, the currently available ordinance does not provide them.
• Meetings Council meetings are subject to state law requirements. They must be public meetings [ (citing ORC 731.46), ], adhering to the detailed provisions of the Ohio Open Meetings Act, ORC § 121.22 (discussed further in Section IV). Marion Code 111.01 specifies regular meeting times and location. Council is required to keep a journal of its proceedings, which must be open to public inspection [ (citing ORC 731.46), (citing ORC 731.45), ], a requirement reiterated in Marion Code 111.05 and 111.09. A majority of all elected members constitutes a quorum necessary to conduct business [ (citing ORC 731.44)], as confirmed by Marion Code 111.02. Special meetings can be called but require specific notice procedures outlined in ORC § 731.44 , referenced in Marion Code 111.01.
• Discipline/Expulsion The authority to discipline council members rests solely with the council itself, not the Mayor. ORC § 731.45 empowers the council to punish or expel any member for specific reasons: disorderly conduct, violation of its rules, or absence without valid excuse for a continuous two-month period. Marion Code 111.07 directly mirrors this state statute, granting Council the power to “punish or expel any member for disorderly conduct, or violation of its rules,” or for the specified absence, and requiring a two-thirds vote for expulsion after notice and hearing. Marion Code 111.08 also allows Council to punish members or other persons present for disorderly conduct during a meeting.
• Expulsion Procedure The process for expelling a member is stringent, as outlined in both ORC § 731.45 and Marion Code 111.07. It requires the concurrence of two-thirds of all members elected to the council. Furthermore, procedural due process is mandated: the member facing expulsion must be notified of the specific charge(s) against them and must be given an opportunity to be heard in their defense before the council votes. This underscores that expulsion is a serious measure reserved for significant misconduct and subject to strict procedural safeguards.
• Removal via Court In addition to council’s internal disciplinary power, ORC § 733.72 provides a mechanism for removing municipal officers (including council members) through a complaint filed in probate court for specific types of misconduct, such as having an interest in a village contract, bribery, malfeasance, or misfeasance in office.
• Status of Specific Council Rules: While Marion Code 111.06 confirms Council’s authority to set its own rules, the chapter itself does not define “disorderly conduct” or “violation of rules” beyond the general terms used in the state statute (ORC § 731.45) and mirrored in 111.07. Any specific, adopted rules of procedure or conduct would need to be located separately (perhaps in Council’s standing rules document, if one exists). Crucially, neither the ORC nor the reviewed Chapter 111 lists whistleblowing as a permissible ground for punishment or expulsion. Defining good-faith whistleblowing as “disorderly conduct” or a “rule violation” within any separate, unreviewed Council rules would present significant legal challenges, potentially conflicting with public policy and state law (like ORC § 4113.52’s reporting mandate). The power to discipline or expel a council member is clearly vested in the council as a whole, operating under constraints imposed by state law (mirrored locally in 111.07), and is not a power granted to the Mayor.

III. Ohio Whistleblower Protection Framework

• A. Analysis of ORC § 124.341 and § 4113.52 Ohio law contains several statutes aimed at protecting whistleblowers, but their applicability varies significantly based on the identity of the whistleblower and the nature of the reported conduct. The two most relevant general statutes are ORC § 124.341 and § 4113.52.

• ORC § 124.341 This statute provides whistleblower protection specifically for individuals employed in the classified or unclassified civil service of the state or its political subdivisions. It protects these employees when they report, in the course of their employment, a violation of state or federal statutes, rules, or regulations, or the misuse of public resources. The reporting can be made to the employee’s supervisor or appointing authority (if they can correct the issue), the state Office of Internal Audit, the Auditor of State’s fraud-reporting system, specific legal officers (prosecuting attorney, law director), peace officers, or the Inspector General (for state-level issues). If ethics violations under specific statutes are suspected, reports can also go to the appropriate ethics commission. The statute prohibits employers from taking disciplinary or retaliatory action against a reporting employee, listing examples such as removal, suspension, withholding salary increases or benefits, adverse transfers or reassignments, denial of promotion, or reduction in pay or position. Employees must make a reasonable effort to ensure the accuracy of their reports, as knowingly or recklessly reporting false information can result in disciplinary action. The sole remedy provided for violations of this section is an appeal to the State Personnel Board of Review.
• ORC § 4113.52 This statute offers broader, though procedurally complex, protections. It applies generally to “employees” or “persons” who report certain types of violations observed during their employment. The scope of reportable violations under this section includes:

• Violations of state/federal law or local ordinance/regulation that the employer can correct, and which the reporter reasonably believes constitute a criminal offense likely to cause imminent physical harm, a hazard to public health or safety, a felony, or an improper solicitation for a contribution [(A)(1)(f), ].
• Criminal violations of specific environmental laws (ORC Chapters 3704, 3734, 6109, 6111) [(A)(2), ].
• Violations by a fellow employee meeting the criteria of imminent harm, hazard, felony, or improper solicitation [(A)(3), ].
• Crucially, fraud, theft in office, or the misuse or misappropriation of public money by state or local officials or employees [(A)(1)(a)-(c), ].

The reporting procedures under ORC § 4113.52 are often strict. For many violations (excluding environmental crimes or mandatory fraud reporting), the employee must first orally notify their supervisor or another responsible officer, followed by a detailed written report [(A)(1)(f), ]. The employer then has 24 hours to correct the issue (or make a good faith effort) and notify the employee [(A)(1)(f)]. Only if the employer fails to act can the employee report externally to authorities like law enforcement, prosecutors, or relevant regulatory agencies [(A)(1)(f)]. However, reports of specific environmental crimes can be made directly to external authorities [(A)(2)], and reports of fraud, theft in office, or misuse/misappropriation of public funds by certain public officials/employees are mandated to be reported externally (to the Inspector General for state agency issues, or the Auditor of State’s fraud-reporting system otherwise) [(A)(1)(a)-(c), ].Like § 124.341, § 4113.52 prohibits employers from taking disciplinary or retaliatory action against a person making an authorized report or taking steps to ensure its accuracy [(B), ]. The definition of retaliation mirrors § 124.341, including removal, suspension, withholding benefits/salary increases, adverse transfer/reassignment, denial of promotion, or reduction in pay/position [(B), ]. A reasonable and good faith effort to determine accuracy is required [(C)]. Unlike § 124.341, the remedy under § 4113.52 is a civil lawsuit, which must be filed within 180 days of the retaliatory action. Available relief includes injunctions, reinstatement, back wages, restoration of benefits and seniority, and potentially attorney fees and costs [(D), (E)]. Some analyses suggest common law claims like wrongful discharge in violation of public policy might supplement statutory remedies if they are inadequate.

• Other Potential Protections While not directly applicable as binding law on Marion unless specifically adopted, policies from other entities like the City of Stow or universities illustrate a common intent to protect good-faith whistleblowers from retaliation. Specific statutes like ORC § 3721.24 protect residents and employees reporting abuse in care facilities but are not relevant here.
• Table 1: Comparison of Ohio Whistleblower Statutes

Feature	ORC § 124.341	ORC § 4113.52
Covered Persons	Classified/Unclassified Civil Service Employees	“Employees” or “Persons”; explicitly includes duty for “Elected Officials” to report certain issues [(A)(1), ]
Covered Reports	Violations of state/federal statutes, rules, regulations; misuse of public resources	Criminal offenses (imminent harm, public hazard, felony, improper solicitation); specific environmental crimes; fraud/theft in office/misuse of public funds; certain violations by fellow employees
Reporting Procedure	Internal (supervisor/authority) or external (audit/auditor/legal/ethics)	Complex: Often requires internal report first (oral then written), then external if uncorrected; direct external report for environmental crimes or mandatory fraud/theft/misuse reports
Retaliation Definition	Removal, suspension, withholding benefits/raises, transfer/reassignment, denying promotion, reducing pay/position	Same as § 124.341 (“without limitation”) [(B), ]
Protection Scope / Remedy	Protection from disciplinary action; sole remedy is appeal to State Personnel Board of Review	Protection from disciplinary/retaliatory action; remedy is civil suit (180-day limit) for injunction, reinstatement, back pay, etc. [(D), (E)]
Applicability to Elected Officials	No (limited to civil service employees)	Ambiguous: Mandates reporting by elected officials for fraud/theft/misuse, but anti-retaliation section protects “employee” or “person” from “employer” – unclear if this protection applies to elected officials [(A)(1), (B), ]

• B. Applicability to Elected City Council Members The question of whether Ohio’s whistleblower statutes protect an elected city council member is critical.

• ORC § 124.341: This statute is clearly inapplicable. Its scope is explicitly limited to employees within the classified or unclassified civil service. Elected officials, such as city council members, do not fall under the definition of civil service employees.
• ORC § 4113.52: The applicability of this section is far more nuanced and ultimately legally ambiguous regarding protection from retaliation.

• On one hand, the statute explicitly imposes a duty on certain public officials, including state and local “elected officials,” to report specific types of wrongdoing, namely fraud, theft in office, or the misuse or misappropriation of public money [(A)(1)(a), (A)(1)(b)(i), ]. This demonstrates legislative intent to involve elected officials in the reporting process for these serious matters.
• However, the anti-retaliation provision, ORC § 4113.52(B), prohibits an “employer” from taking disciplinary or retaliatory action against “an employee” or “a person” for making an authorized report [(B), ]. The traditional employer-employee relationship does not accurately describe the dynamic between different elected officials (e.g., Mayor and Council Member) or between a legislative body and one of its members. The statute does not define “employer,” “employee,” or “person” in the specific context of elected officials interacting with each other or their governing body.
• Therefore, while an elected council member might be required by § 4113.52(A)(1) to report certain issues, it is uncertain whether § 4113.52(B) provides them with statutory protection against retaliation for doing so. The term “person” could potentially be interpreted broadly enough to include an elected official, but without explicit language or clarifying case law, this remains an open question. This statutory gap means that an elected official seeking protection under § 4113.52(B) faces a significant legal hurdle, potentially requiring judicial interpretation to establish coverage.
• C. Scope of Protections and Definition of Retaliation Assuming, for the sake of analysis, that some protection might apply (either directly under § 4113.52 or through common law public policy arguments), the scope of that protection must be considered.

• Protected Actions: The protection extends to making reports authorized by the relevant statute. Under § 4113.52, this also includes making inquiries or taking other actions to ensure the accuracy of the information being reported [(B)].
• Retaliation Defined (ORC § 4113.52(B)): The statute provides a non-exhaustive list (“includes, without limitation”) of actions considered retaliatory [(B), ]:

• Removing or suspending the person from employment [(B)(1)].
• Withholding salary increases or employee benefits otherwise entitled [(B)(2)].
• Transferring or reassigning the person [(B)(3)].
• Denying a promotion otherwise receivable [(B)(4)].
• Reducing the person in pay or position [(B)(5)].
• Exclusion from Meetings as Retaliation: The act of excluding a council member from meetings is not explicitly listed as a form of retaliation in ORC § 4113.52(B) [(B), ]. However, because the statutory list is illustrative rather than exhaustive (“without limitation”), exclusion could potentially be argued as a form of prohibited retaliation. Such an argument would likely contend that preventing a duly elected official from attending meetings, participating in deliberations, and voting constitutes a constructive suspension or a significant reduction in their position and authority, effectively preventing them from performing the core duties of their office. If the exclusion can be causally linked to the protected whistleblowing activity, it might be framed as an adverse action intended to punish or deter reporting, thereby falling within the spirit of the anti-retaliation provision. Establishing this would require demonstrating the causal link and persuading a court that exclusion constitutes retaliation under the statute’s non-exhaustive definition, particularly given the ambiguity surrounding whether the statute’s protections apply to elected officials at all.

IV. Ohio Open Meetings Act (Sunshine Law – ORC § 121.22)

• A. Presumption of Openness and Public Access Requirements Ohio’s Open Meetings Act (OMA), codified in ORC § 121.22, establishes a strong legal presumption in favor of government transparency.

• Liberal Construction: The statute explicitly mandates that it “shall be liberally construed to require public officials to take official action and to conduct all deliberations upon official business only in open meetings unless the subject matter is specifically excepted by law” [(A), ]. This principle places the burden squarely on the public body to justify any closure of its proceedings.
• Public Meetings: All meetings of any “public body” are declared to be public meetings open to the public at all times [(C)]. A “public body” includes decision-making bodies of state and local government, explicitly encompassing municipal councils [(B)(1), ]. This state mandate reinforces any similar local requirements, such as those likely found in Marion Code Chapter 107 (text unavailable) or seen in other city codes. Marion Code 111.01 sets the default time and place for regular Council meetings.
• Definition of Meeting: The OMA applies broadly to “any prearranged discussion of the public business of the public body by a majority of its members” [(B)(2), ]. This definition extends beyond formal gatherings in a meeting room to include work sessions, retreats, and even serial communications (like emails or text messages) if used by a majority to deliberate on public business outside of public view. Deliberate attempts to circumvent the Act through sequential meetings involving less than a majority discussing the same topic are also prohibited.
• Notice: Public bodies must establish, by rule, a reasonable method for the public to determine the time and place of regular meetings, and the time, place, and purpose of special meetings [(F)]. For special meetings, at least 24 hours’ advance notice must generally be given to news media who have requested it, with exceptions only for true emergencies requiring immediate action [(F)].
• Minutes: Public bodies must promptly prepare, file, maintain, and make available for public inspection minutes of all open meetings [(C), ]. Marion Code 111.05 and 111.09 reiterate the duty of the Clerk to keep a journal open for inspection. While not requiring a verbatim transcript, the minutes must contain sufficient detail for the public to understand the decisions made. For executive sessions, the minutes of the open meeting during which the session was convened need only reflect the general subject matter discussed in the closed portion [(C), ].
• Enforcement: The OMA is primarily enforced through lawsuits initiated by affected individuals or the media. Courts can invalidate actions taken in violation of the Act, enjoin future violations, impose a civil forfeiture of $500 per violation, and award court costs and reasonable attorney fees to the prevailing party. No state agency, including the Attorney General’s Office, has direct enforcement authority. Training on Sunshine Laws is available and often mandatory for public officials. The fundamental principle remains: government deliberations must occur in the open unless a specific, narrow exception applies and is invoked correctly.
• B. Executive Sessions: Procedural Requirements and Permissible Purposes The OMA permits public bodies to hold executive sessions (meetings closed to the public) only under strictly defined circumstances and following precise procedures.

• Purpose: Executive sessions are solely for discussion and deliberation on specific, enumerated topics. No formal action, voting, or decision-making may occur during an executive session. Any official action resulting from discussions in executive session must be taken in a subsequent open session.
• Procedure: Convening an executive session must occur during a properly noticed open meeting (regular or special). It requires a formal motion, a second to the motion, and an affirmative vote by a majority of a quorum of the public body [(G), ]. This vote must be taken by roll call, and the result recorded in the meeting minutes [(G)]. The motion itself must clearly state the specific, permissible purpose(s) from the list in ORC § 121.22(G) for which the executive session is being held [(G)(1), ]. Simply citing a general topic is insufficient; the motion should track the statutory language for the relevant exception. Once in executive session, discussion must be strictly confined to the topic(s) identified in the motion.
• Permissible Purposes (ORC § 121.22(G)): The law provides a closed list of reasons for which an executive session may be held [(G), ]. These are summarized below:
• Table 2: Summary of Permissible Executive Session Topics under ORC § 121.22(G)

ORC § 121.22(G) Subsection	Topic Summary	Key Conditions/Limitations
(G)(1)	Personnel Matters / Investigations	Consider appointment, employment, dismissal, discipline, promotion, demotion, or compensation of a public employee or official; OR investigation of charges/complaints against a public employee, official, licensee, or regulated individual. Does NOT apply if subject requests public hearing. Crucially, does NOT apply to discipline of an elected official for conduct related to official duties or removal from office. [(G)(1), ]
(G)(2)	Property Purchase/Sale	Consider purchase of property for public purposes, or sale of property at competitive bidding / disposal of surplus property, if premature disclosure would give unfair competitive/bargaining advantage adverse to public interest. [(G)(2)]
(G)(3)	Pending/Imminent Litigation	Conferences with the public body’s attorney concerning disputes involving the body that are the subject of pending or imminent court action. [(G)(3), ]
(G)(4)	Collective Bargaining	Preparing for, conducting, or reviewing negotiations or bargaining sessions with public employees regarding their terms/conditions of employment. [(G)(4), ]
(G)(5)	Confidential Matters by Law	Discussing matters required to be kept confidential by federal law or regulations or state statutes. [(G)(5), ]
(G)(6)	Security Arrangements	Discussing details relative to security arrangements and emergency response protocols if disclosure could reasonably jeopardize security. [(G)(6), ]
(G)(7)	Hospital Trade Secrets	Consideration of specific trade secrets by certain public hospitals. [(G)(7)]
(G)(8)	Economic Development	Consideration of specific confidential business/financial information related to applications for economic development assistance, under limited circumstances and requiring unanimous quorum vote. [(G)(8)]

• C. Analysis: Applicability of Exceptions to Whistleblower Discussions Evaluating whether a council can legally enter executive session to discuss whistleblower allegations or the whistleblower’s status requires comparing the purpose of the discussion against the narrow exceptions listed in ORC § 121.22(G).

• Potential Exception (G)(1): The most frequently considered exception for such matters is (G)(1), covering the “investigation of charges or complaints against a public employee, official…” [(G)(1), ]. This could potentially apply if the executive session’s purpose is to deliberate on the specific allegations made by the whistleblower against another employee or official.
• Critical Limitations on (G)(1):

• The subject of the investigation must clearly fall within the categories listed (public employee, official, licensee, regulated individual).
• Most importantly, the statute explicitly prohibits using the (G)(1) exception for “the discipline of an elected official for conduct related to the performance of the elected official’s official duties or for the elected official’s removal from office,” unless another law specifically allows it [(G)(1), ]. Since whistleblower complaints often concern the alleged misconduct of elected officials in their official capacity, this limitation significantly restricts the use of (G)(1) for discussing the substance of such allegations, especially if the discussion touches upon potential consequences or disciplinary actions against that elected official.
• Discussing the status of the whistleblower (e.g., potential retaliation against them, their motivations, their identity) generally does not fit the (G)(1) purpose, which focuses on charges against someone else. An exception might arise only if the discussion is framed as investigating a complaint against an individual accused of retaliating against the whistleblower (provided that individual is an employee/official and the elected official limitation doesn’t apply).

• Other Exceptions: Other (G) exceptions are unlikely to apply in a typical whistleblower scenario. (G)(3) requires pending or imminent court action related to the matter [(G)(3)]. (G)(5) requires a specific federal or state law mandating confidentiality of the information itself, which is not automatic for whistleblower allegations concerning public business [(G)(5)]. While whistleblower identity might be protected under certain policies or specific statutes in some contexts , the OMA generally requires the substance of public business discussions to be open. Exceptions (G)(2), (G)(4), (G)(6), (G)(7), and (G)(8) relate to property, bargaining, security, trade secrets, and economic development, respectively, and are generally irrelevant to discussing whistleblower claims about governance [(G)].
• Conclusion on Applicability: The ability to use executive session to discuss whistleblower matters is severely limited under the OMA. The (G)(1) exception is often rendered inapplicable by its own terms when the allegations concern the official conduct or potential discipline of an elected official. Using any exception requires a precise match between the discussion’s purpose and the statutory language, invoked through proper procedure. Attempting to use an executive session as a pretext to discuss sensitive or potentially embarrassing public business related to whistleblower allegations, particularly those involving elected officials, carries a high risk of violating the Open Meetings Act. Public business, however controversial, must generally remain public.

V. Legal Analysis: Legality of Excluding a Whistleblower Council Member

• A. Assessment of Mayoral/Council Authority vs. Council Member Rights and Potential Whistleblower Protections Determining the legality of excluding a council member from meetings due to whistleblowing requires synthesizing the distinct powers and limitations of the Mayor and the Council under Ohio law, alongside the rights of the council member and the public policy surrounding whistleblowing.

• Mayoral Authority: As established in Section II.B, the Mayor of a statutory city like Marion possesses executive powers defined primarily in ORC Chapter 733. These powers include enforcing laws, appointing certain officials, and advising council, but they do not extend to controlling council’s internal proceedings or disciplining its members. The authority to regulate council meetings and discipline members is explicitly vested in the council itself by ORC § 731.45 and mirrored in Marion Code 111.07. Therefore, any attempt by the Mayor, acting unilaterally, to exclude a council member from a meeting constitutes an action ultra vires – beyond the scope of their legal authority – and an infringement upon the powers reserved to the legislative body.
• Council Authority: The City Council does possess the authority to discipline its own members under ORC § 731.45 and Marion Code 111.07. This power, however, is strictly limited. Discipline, including potential exclusion or expulsion, can only be imposed for specific grounds enumerated in the statute and ordinance: “disorderly conduct,” “violation of its rules,” or “absence without valid excuse… for two months”. Furthermore, any such action requires adherence to procedural due process, including notice of charges and an opportunity for the member to be heard. Expulsion requires a supermajority vote (two-thirds of all elected members).
• Grounds for Exclusion: The act of whistleblowing – reporting perceived unlawful activity or unethical governance – is not among the grounds listed in ORC § 731.45 or Marion Code 111.07 for which a council may punish or expel a member. Attempting to categorize good-faith whistleblowing as “disorderly conduct” or a “violation of rules” would be legally tenuous. “Disorderly conduct” typically refers to behavior that disrupts the proceedings themselves. While Council can adopt its own rules (per ORC 731.45 and Marion Code 111.06), a rule prohibiting the reporting of potential illegalities would likely be deemed contrary to public policy and potentially invalid, especially considering that ORC § 4113.52(A)(1) may mandate reporting of certain issues like fraud or misuse of public funds by elected officials [(A)(1)]. Disciplining a member for fulfilling a potential statutory duty or engaging in activity strongly favored by public policy presents a significant legal problem. Notably, Marion Code Chapter 111 itself does not define “disorderly conduct” or “violation of rules,” nor does it contain the specific rules Council may have adopted pursuant to section 111.06.
• Whistleblower Status: As discussed in Section III.B, the statutory protection against retaliation for elected officials under ORC § 4113.52(B) is ambiguous. However, the lack of clear statutory protection does not equate to affirmative authority to punish the act of whistleblowing. Excluding a member for reporting potential illegality, particularly if the report was made in good faith or was potentially required by law [(A)(1)], directly conflicts with the underlying purpose of whistleblower laws and the public interest in accountable government.
• Council Member Rights: Exclusion from meetings fundamentally prevents an elected council member from performing their core duties: representing their constituents, participating in deliberations, and voting on legislation. This infringes upon the rights inherent in their elected office derived from ORC Chapter 731 and recognized in Marion Code Chapter 111’s structure.
• Synthesis: The legal framework points strongly against the legality of exclusion for whistleblowing. The Mayor lacks the authority entirely. The Council possesses disciplinary authority, but it is constrained by specific grounds and procedures outlined in ORC § 731.45 and Marion Code 111.07. Whistleblowing does not align with the statutory or ordinance grounds for discipline. Even considering the ambiguity of direct whistleblower protection for elected officials, excluding a member for raising concerns about potential illegality undermines their representative function and contravenes public policy. Such exclusion appears to be an unauthorized punitive measure lacking legal foundation under state and local law.
• B. Conclusion on Legality under Ohio Law and Marion Ordinances

• Mayor’s Action: Based on the analysis of ORC Chapter 733 and the separation of powers inherent in Ohio’s statutory city framework (and confirmed by the lack of conflicting local ordinance in Marion Code Chapter 121 ), the Mayor of Marion acting alone to exclude a city council member from council meetings, particularly for reasons related to whistleblowing, is illegal. Such action exceeds the statutory authority granted to the Mayor and improperly interferes with the legislative branch’s internal affairs and disciplinary powers granted exclusively to the Council under ORC § 731.45 and Marion Code 111.07.
• Council’s Action: It is concluded that the Marion City Council excluding one of its members solely because that member engaged in whistleblowing activities is likely illegal. Whistleblowing is not a permissible ground for discipline or expulsion under ORC § 731.45 or Marion Code 111.07. Attempting to recharacterize good-faith reporting of potential misconduct as “disorderly conduct” or a “violation of rules” (terms left undefined in Chapter 111) would face significant legal challenge as being contrary to public policy and potentially conflicting with reporting mandates in ORC § 4113.52. Furthermore, any disciplinary action by Council, even if based on arguably valid grounds (unrelated to the whistleblowing), must strictly adhere to the procedural requirements of ORC § 731.45 and Marion Code 111.07, including notice, hearing, and the requisite vote. Exclusion based solely on whistleblowing fails to meet the substantive requirements for Council disciplinary action under state and local law.

VI. Legal Analysis: Legality of Closing Meetings for Whistleblower Discussions

• A. Evaluation Against ORC § 121.22(G) Exceptions The legality of closing a Marion City Council meeting to discuss whistleblower allegations or the status of the whistleblower hinges entirely on whether the discussion falls squarely within one of the specific, narrowly construed exceptions to the Open Meetings Act found in ORC § 121.22(G).

• Strict Application: The OMA’s mandate for liberal construction in favor of openness [(A)] means that exceptions permitting closure (executive sessions) must be strictly and narrowly applied. The public body bears the burden of demonstrating that an exception clearly permits the closed discussion.
• Analysis of (G)(1): As detailed in Section IV.C, the exception for personnel matters and investigations under (G)(1) [(G)(1), ] is the most likely justification a council might attempt to invoke. However, its application is severely limited by the explicit exclusion of discussions regarding “the discipline of an elected official for conduct related to the performance of the elected official’s official duties or for the elected official’s removal from office” [(G)(1), ]. If the whistleblower’s allegations pertain to an elected official’s actions within their official capacity, and the discussion could reasonably relate to potential discipline or consequences for that official, then (G)(1) cannot legally be used to close the meeting for that purpose. The exception might only apply if the discussion is strictly limited to investigating allegations against a non-elected public employee mentioned in the report, or perhaps for preliminary information gathering devoid of any deliberation about potential discipline of an elected official – a distinction that is difficult to maintain in practice and legally risky. Discussing the whistleblower’s status itself, rather than investigating charges against another individual, does not fit within (G)(1).
• Analysis of Other Exceptions: As discussed in Section IV.C, the remaining exceptions in ORC § 121.22(G) are generally inapplicable to discussions about whistleblower allegations concerning governance [(G)(2)-(8)]. These exceptions cover specific topics like property transactions, attorney conferences about imminent or pending litigation, collective bargaining, legally mandated confidentiality, security matters, hospital trade secrets, and certain economic development negotiations. Unless the whistleblower situation directly triggers one of these specific conditions (e.g., a lawsuit has actually been filed or credibly threatened, triggering (G)(3), or a specific statute makes the information confidential under (G)(5)), these exceptions cannot justify closing the meeting.
• Procedural Compliance: Even if a potentially valid substantive reason under (G) exists, the council must meticulously follow the procedural requirements for entering executive session: a proper motion during an open meeting, specifying the exact statutory purpose, followed by a roll call vote with a majority of a quorum approving the closure [(G), ]. Failure to comply with these procedures invalidates the executive session, regardless of the topic discussed.
• Implication: The structure of the Open Meetings Act, particularly the significant limitation within the (G)(1) exception regarding elected officials, makes it legally perilous for a city council to close its doors to discuss whistleblower allegations involving those officials. The law strongly favors public deliberation of public business, even when the subject matter is sensitive or reflects poorly on public officials.
• B. Conclusion on Legality under the Ohio Open Meetings Act Based on the stringent requirements of the Ohio Open Meetings Act (ORC § 121.22), it is concluded that closing a Marion City Council meeting (entering executive session) for the primary purpose of discussing the substance of whistleblower allegations against an elected official concerning their official duties, or to discuss the status or potential treatment of the whistleblower council member in relation to their report, is likely illegal.The most plausible exception, ORC § 121.22(G)(1), contains a specific prohibition against its use for matters concerning the potential discipline or removal of an elected official arising from their official duties [(G)(1), ]. Given that whistleblower reports frequently involve allegations against elected officials regarding their conduct in office, this limitation often precludes the use of (G)(1). Other exceptions under ORC § 121.22(G) are generally inapplicable to the subject matter of internal governance disputes or whistleblower allegations.Such discussions constitute deliberations upon official business and, under the OMA’s strong presumption of openness [(A), (C)], must occur in a public meeting accessible to citizens and the press. Failure to conduct these deliberations openly, or failure to strictly adhere to the procedural requirements for invoking a valid executive session exception, exposes the council to legal challenges under ORC § 121.22, potentially resulting in the invalidation of any actions taken, the imposition of civil forfeitures, and liability for court costs and attorney fees.

VII. Relevant Ohio Precedents

A comprehensive analysis would ideally be supplemented by a review of relevant Ohio Attorney General (OAG) opinions and court decisions that interpret the specific statutes at issue. The research materials available for this report did not include such precedents. However, locating and analyzing relevant case law or OAG opinions would be crucial for providing definitive answers to certain ambiguities identified, including:

• A. Applicable Ohio Attorney General Opinions:

• Opinions interpreting the scope and limitations of ORC § 121.22(G)(1), particularly the carve-out for discussions involving the discipline or removal of elected officials based on official conduct.
• Opinions addressing the extent of council’s disciplinary power under ORC § 731.45 (and mirrored in Marion Code 111.07), potentially defining “disorderly conduct” or “violation of rules.”
• Opinions discussing the applicability, if any, of whistleblower protections (statutory or common law) to elected officials in Ohio.
• B. Relevant Ohio Court Decisions:

• Cases adjudicating disputes over the division of authority between mayors and councils in statutory cities, especially concerning council’s internal affairs or member discipline.
• Cases interpreting whether ORC § 4113.52’s anti-retaliation protections apply to elected officials, potentially clarifying the meaning of “employer,” “employee,” and “person” in that context.
• Cases applying the ORC § 121.22(G)(1) limitation regarding elected official discipline/removal in the context of closed meetings.
• Cases defining the boundaries of “disorderly conduct” or “violation of rules” sufficient to warrant council discipline under ORC § 731.45 / Marion Code 111.07.

The resolution of ambiguities, particularly regarding the scope of whistleblower protection for elected officials under ORC § 4113.52 and the precise application of the ORC § 121.22(G)(1) limitation in whistleblower scenarios, would heavily depend on such precedents. External legal research beyond the scope of the provided materials is necessary to incorporate this layer of analysis.

VIII. Conclusion and Recommendations

• A. Summary of Findings This analysis, incorporating relevant sections of Marion City Code Chapter 111 and confirming the lack of substantive local provisions in Chapter 121 alongside the Ohio Revised Code, yields the following key conclusions regarding the exclusion of a whistleblower council member and the closure of related council meetings:

1. Exclusion by Mayor: The Mayor of Marion likely lacks the legal authority under the Ohio Revised Code (Chapter 733) to unilaterally exclude a duly elected council member from council meetings for any reason, including whistleblowing. Marion City Code Chapter 121 provides no additional authority. Such action would usurp the disciplinary authority granted exclusively to the City Council under ORC § 731.45 and Marion Code 111.07.
2. Exclusion by Council: The Marion City Council likely cannot legally exclude or expel a member solely for acting as a whistleblower. Whistleblowing is not listed as a permissible ground for discipline under ORC § 731.45 or Marion Code 111.07. Attempting to classify good-faith whistleblowing as “disorderly conduct” or a “violation of rules” (terms not defined in Chapter 111) is legally questionable and contrary to public policy. Any disciplinary action by Council requires strict adherence to the grounds and procedural due process mandated by ORC § 731.45 and Marion Code 111.07.
3. Closed Meetings: Closing a Marion City Council meeting (entering executive session) to discuss the substance of whistleblower allegations against an elected official concerning their official duties, or to discuss the status or potential treatment of the whistleblower council member in relation to their report, likely violates the Ohio Open Meetings Act (ORC § 121.22). The most relevant potential exception, ORC § 121.22(G)(1), generally prohibits closed discussions regarding the discipline or removal of elected officials for conduct related to their official duties. Other exceptions are typically inapplicable.
4. Legal Ambiguities/Data Gaps: Significant legal ambiguity exists regarding whether the anti-retaliation protections of Ohio’s primary whistleblower statute (ORC § 4113.52) extend to elected officials. While Marion Code Chapters 111 and 121 were reviewed, Chapter 121 contains no substantive local rules for the Mayor , and Chapter 111 does not contain specific Council rules of procedure or conduct; the unavailability of Marion Code Chapter 107 (Public Meetings) remains a minor data gap. Further legal research into case law and Attorney General opinions is needed for definitive interpretation of the identified ambiguities.

• B. Recommendations Based on the legal analysis, the following recommendations are offered:

1. For the Mayor: The Mayor should operate strictly within the executive authorities granted by ORC Chapter 733 (as referenced in Marion Code Chapter 121 ) and refrain from actions that interfere with the internal proceedings or disciplinary functions of the City Council as defined in ORC Chapter 731 and Marion Code Chapter 111. Matters of council member conduct and attendance fall under Council’s purview.
2. For the City Council:

• Adhere strictly to the grounds and procedural requirements of ORC § 731.45 and Marion Code 111.07 when considering any disciplinary action against a member. Recognize that whistleblowing itself is not a statutory or ordinance ground for discipline. Consult with the City Law Director or independent legal counsel before initiating disciplinary proceedings, particularly those related to a member’s reporting of potential misconduct.
• Ensure rigorous compliance with the Ohio Open Meetings Act (ORC § 121.22). Use executive sessions sparingly and only for purposes explicitly permitted by statute, paying close attention to the limitation in ORC § 121.22(G)(1) regarding elected officials. Follow all procedural requirements for entering executive session meticulously. Consult legal counsel when uncertainty exists about the legality of closing a meeting.
• Pursuant to the authority granted in ORC § 731.45 and Marion Code 111.06, consider formally adopting and making publicly accessible specific rules of procedure and conduct for Council members during meetings. Ensure these rules are clear, consistent with state law, and do not infringe upon members’ rights or chill legitimate reporting of potential wrongdoing. Define terms like “disorderly conduct” if they are to be used as a basis for discipline under 111.07/111.08.
• Enhance transparency by ensuring that key sections of the Marion City Code, particularly Chapter 107 (Public Meetings), are readily accessible to the public online, alongside Chapters 111 and 121.

3. For the Whistleblower Council Member: Seek advice from independent legal counsel regarding potential rights and remedies. Counsel can provide guidance on the ambiguous status of whistleblower protection for elected officials under ORC § 4113.52, explore potential common law claims, and advise on actions under the Open Meetings Act (ORC § 121.22) if illegal closed meetings occur or if exclusion persists.
4. General: All elected officials and relevant administrative staff in Marion should receive regular training on Ohio’s Sunshine Laws (Open Meetings Act and Public Records Act) to ensure understanding of and compliance with transparency requirements. This can help prevent inadvertent violations and foster public trust.

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