JobsOhio exempt from public records

High court: Law doesn’t apply

12/3/2013

COLUMBUS — The private nonprofit JobsOhio economic development corporation is exempt from the state public records laws that apply to government agencies, the state Supreme Court said Tuesday.

The 6-0, two-paragraph ruling dismissed a public records lawsuit brought by attorney Victoria E. Ullman, who once represented the liberal advocacy group ProgressOhio in its separate challenge to the entity’s constitutionality. This ruling does not affect the latter case, which has been argued before the court and is awaiting a ruling.

The court found that “JobsOhio is specifically exempted from the requirements of” Ohio’s public records law.

The top priority of Republican Gov. John Kasich upon taking office in 2011, JobsOhio was set up to take on many of the economic development functions of the former Ohio Department of Development.

The General Assembly largely exempted the new entity from public records laws and the oversight of the state auditor and Ohio Ethics Commission. Among its functions, the entity negotiates economic development deals to create and retain jobs on behalf of the state, using private contributions and the profits generated by Ohio’s liquor monopoly that it has leased for $1.4 billion. Final decisions on negotiated tax credits and state grants, however, still must be approved by state government entities.

The governor and supporters argued that JobsOhio must be free of at least some of the restrictions that they claimed slowed decisions in its government predecessor. They’ve also argued that the corporation deals with sensitive business information that must be protected.

The high court ruling followed the release of JobsOhio’s latest quarterly report, which showed that its job creation during the third quarter of 2013 slowed to 3,835, and retained jobs fell to 6,161 compared to 4,343 and 32,304, respectively, in the previous quarter.

In her suit, Ms. Ullman wrote, “JobsOhio is the functional equivalent of a government agency, or a division of an agency, and is therefore subject to the requirements of [public records law], regardless of attempts to shield it.”

“JobsOhio performs a government function and is funded by a lease of a government asset,” she wrote. “JobsOhio exists only due to its creation pursuant to [state law] and the liquor revenue granted to it. … It was designed specifically to avoid public documents production or any other public scrutiny.”

JobsOhio, however, countered that state law clearly exempts the entity from having to comply with Ms. Ullman’s request.

Among other things, she sought documents related to all donors to JobsOhio and the amounts they gave, internal documents relating to conflicts of interests, and any communications with Mr. Kasich’s office and his campaign. The request was denied.

“This lawsuit, masquerading as a mandamus action to enforce a contrived request for records under [the public records law] is Relator’s weakest effort yet to obstruct and undermine JobsOhio,” wrote Columbus attorney Aneca E. Lasley.

“Relator claims to be pursuing a request for records under … the very statute from which JobsOhio is expressly excepted,” she wrote. “But what Relator is really pursuing is a thinly disguised request for a declaratory judgment on the constitutionality of the JobsOhio statute coupled with a prohibitory injunction.”

A decision on the constitutionality of JobsOhio must wait until the court decides whether ProgressOhio, the conservative 1851 Center for Constitutional Law, state Sen. Mike Skindell (D., Lakewood), and former state Rep. Dennis Murray (D., Sandusky) have standing to sue over the question.

Justice Terrence O’Donnell did not participate. He is not required to state a reason for his recusal, but Mr. Skindell was his Democratic rival in the 2012 election.

Contact Jim Provance at: jprovance@theblade.com or 614-221-0496.