County Environmental Services is tap dancing around Open Meetings and Public Records law to usurp public participation

The Cincinnati Post

Hamilton County Solid Waste: Where the Sun don't Shine.
Hamilton County Solid Waste: Where the Sun don't Shine.State of Ohio, Attorney General, Sunshine Laws

The Ohio Public Records Act is a beautiful thing. It truly shines sunlight on what's really going on.

The Hamilton County Department of Environmental Services (HCES) has been obstructing the progress of a proposal to have rules promulgated throughout the county pertaining to the siting, construction, expansion, and operation of landfills in its jurisdiction for over 6 months. Now, the staff of the department is tap-dancing around the law looking for loopholes to block the public from obtaining information or participating - in any meaningful way- in the process.

Most notably, they have decided, unilaterally and behind closed doors, that,

  • No participant, whether a subcommittee member or not, will be permitted to vote on any issue;
  • Only those named as subcommittee members or "support staff" will be permitted to participate in the discussions; and
  • Public comments are prohibited.

So much for an open and transparent process.

The intent to deny public input is not only extraordinarily obstructive, it may well be illegal and a violation of the Open Meetings Act. The HCES department is determined to keep knowledgeable voices out of the mix. Child Advocacy for Rights & Equity, Inc. (C.A.R.E.) alleges that the reason may lie in the fact that the Solid Waste Policy Committee (SWPC) has one too many people on the board in violation of Ohio law - namely, Rumpke. Staff has refused to remove the Rumpke representative nor provide documentation of an exemption approved by the Ohio EPA, despite the obvious conflict of interest and the legal statute specifying who is permitted on the committee. The statute does not include a landfill operator - for obvious reasons.

Through a public records request, it was discovered that Rumpke has been sent "opposition research" regarding C.A.R.E to, and having inappropriate conversations with, staff seemingly to deny the proposed action of the organization from moving forward and diminishing the integrity and reputation of the organization since June - just weeks after C.A.R.E. first presented the issue at a committee meeting during public comments. At the same time, Rumpke made an $8K donation to the campaign of Cathy Ulrich, a candidate for trustee who, if she wins, will vote on whether to ratify the rules proposed. Rumpke also met privately with select residents of Ditch the Dump, a grassroots organization opposing the Whitewater expansion, and denigrated C.A.R.E.'s leadership and encouraged them to exclude C.A.R.E. from their efforts. Upon learning of this secret meeting, C.A.R.E. leadership recalls telling them,

You're not falling for that, are you? I'm their worst nightmare. That's why they don't want you to work with me. They know, I know what I am doing.

Ditch the Dump stopped working with C.A.R.E and staff at HCES canceled the organization's scheduled 30-minute presentation days, claiming they needed to get the committee "up to speed." Records indicate staff did nothing to educate and inform the committee members about the rulemaking authority the organization sought to present. A legal opinion requested by Commissioner Denise Driehaus from the county prosecutor is still being withheld from the committee members and the public, despite the committee members being the client. Instead, staff provided a summary to them. One committee member protested in an email acquired through the public records request:

I did not find the summary of the prosecutor's opinion that you shared safisfiying, and I wonder what the actual question was he was that he was responding to.

Rumpke, using their position on the committee, had been highly successful at stymying the efforts to get rules passed to regulate the trash industry in Hamilton County. But for, the actions of 3 committee members demanding that the issue be put on the agenda - the proposal would be dead on arrival. One committee member wrote:

This citizen's request for "rules' actually feeds into my concern about how we should respond to the presentation and concerns of Carrie Davis. I have shared this concern with Bob Gedert and Sue Mangess. They concur in my request that the following item be added to the agenda... (writer's emphasis)

Public records show that, a couple hours after this email was sent, Bob Gedert issued a memo to staff and the full committee stating that 3 members of the SWPC wanted rules put on the agenda. Finally, the proposal, made 5 months earlier, was permitted to be discussed. Consequently, a resolution was passed to create a subcommittee to better identify the authority of the SWPC and the Board of County Commissioners and to recommend rules for adoption by the commissioners, as C.A.R.E. had proposed.

Every step is a fight. The composition established by SW staff did not include anyone from environmental interests or representing disadvantaged families impacted by landfill sitings. It was challenged and a "restructured" committee was reportedly in the works. It's unclear who was making these decisions. There are no records provided on the matter. However, nothing came of it, at least publicly. Then, it was learned - after the fact - that about a week ago they held a meeting without public notice, an agenda, or open to the public. The HCES staff tap-danced as fast as they could to justify this breach of law when called out on it, claiming it wasn't really a meeting, it was a "workgroup". Now, claiming staff previously appointed to the subcommittee are actually "support staff" not committee members. Finally, C.A.R.E. referenced a legal opinion stating all subcommittees and "workgroups" are subject to public meetings law.

On Friday, the HCES staff sent notice of the next meeting, added another member solely as "staff support" with no voting powers who works with environmental groups, but labeling her as "public perspective".

The reality is, the SWPC created a "technical advisory council," not a subcommittee. The body of law does not permit "subcommittees," but they do prescribe for a council. All personnel from outside the HCSE and the SWPC are, part and parcel, of the council as provided by statute. Those on staff at HCSE or on the SWPC are the "support staff." It really makes no sense to have a public body that has no voting powers and no procedural apparatus, unless staff intends to usurp the powers of the council. This council, subcommittee, workgroup - whatever you want to call it - does not comport to law. A technical advisory council is required to include " solid waste hauling and disposal industries" (which essentially means a landfill operator), not a waste generator. Additionally, the statute repeatedly specifies that the council should not have representation on the subcommittee which is already represented on the SWPC. Appointees to the subcommittee/council:

may consist of such other members as the policy committee considers appropriate, ... that are not represented by members serving on the policy committee.

All 3 subcommittee members currently sit on the SWPC.

The staff of the HCES demonstrates either a clear attempt to do an end-run around open meetings law or they are woefully uninformed as to the laws of the state pertaining to Open Meetings law, Public Records, and their duties and roles as defined by law as merely to support the governing body, not to dictate the agenda or direction of the committee. In fact, HCES is violating the entire purpose of having a SWPC when they have assumed all the decision-making capabilities of the committee.

It's all smoke and mirrors. And, it's all illegal.

You can attend the following 2 meetings this week. However, at neither is the public permitted to speak.

  • The Hamilton County Solid Waste Rules Subcommittee of the Hamilton County Solid Waste Policy Committee will meet from 1 pm – 3 pm on October 22, 2021. This meeting will be held at Hamilton County Environmental Services, 250 William Howard Taft Road, 1st Floor, Cincinnati, Ohio 45219-2660.  
  • The Board of County Commissioners, Staff Meeting: 138 E. Court Street, Cincinnati, Ohio 45202, 6th floor; note that this is a staff meeting and they don’t take public comment. (Public comments are taken Thursdays) Meeting starts a 1pm.

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