Hamilton County government is using private meetings and marking documents as secret attorney-client communications to keep the public's business out of public view, according to Commissioner Todd Portune.

        Mr. Portune says he will refuse to accept confidential communications in the future because of a rule passed last week saying that at least two commissioners must agree to make such correspondence public.

        Such a policy creates a “chilling effect” on his ability to discuss matters with the public, he said.

        Prosecutors who act as lawyers for the commissioners say the rule protects the public on sensitive issues such as land buys or lawsuits that, if details were revealed, could cost taxpayers.

        The controversy is just the latest confrontation between Mr. Portune, a Democrat, and the Republicans on the commission and in the prosecutor's office over how some of taxpayers' most sensitive, and potentially expensive, business is handled.

        It's also a continuation of a campaign promise Mr. Portune made in the wake of large-scale cost overruns at Paul Brown Stadium, which were hidden from the public for more than six months.

        “For a generation, much of Hamilton County's business has been done behind closed doors, based upon relationships and patronage,” Mr. Portune said. “I think what you have is a situation where people who have benefited from the old closed-door network want that system to remain in business and they are taking steps to forcibly make sure that happens.”

        Mr. Portune has asked prosecutors questions about the new policy: Who makes the decision on whether a communication is privileged? What is the punishment for violating the policy? What is the legal authority for the rule?

        He has received no answers.
       

An openness issue

        First Assistant Prosecuting Attorney Brian Hurley said there is nothing new in the rule the commission passed.

        “The (rule) merely memorializes what Ohio law has said for a long time,” Mr. Hurley said. “Todd looks at it as an openness issue. We do not.

        “The way we view it, there are certain things in connection with lawsuits or the purchase of property that, if not maintained, we'd be subjecting taxpayers to millions or hundreds of millions that they shouldn't be,” he said.

        Commissioner Tom Neyer, who drafted the rule, agreed there's nothing new in it.

        Under Ohio law, county commissioners can meet in private session. They cannot make decisions in private.

        Likewise, Ohio law presumes most government correspondence is public, but recognizes that lawyers may communicate in confidence with officials.

        But there have been abuses of secrecy, said Tim Mara.

        Mr. Mara is a Cincinnati attorney who successfully sued commissioners two years ago after they took a private vote to spend $2 million on Fort Washington Way. A judge ordered commissioners to take a new vote in public.

        Commissioners also admitted to receiving at least two closed-door briefings from construction managers at Paul Brown Stadium on the overruns months before they were made public, and long before any lawsuit was contemplated. Construction managers say there were at least three such briefings.

        “Politicians usually are more concerned about the public reaction to information,” Mr. Mara said. “The problem is that until Portune got there, we had a one-party system and had no way of knowing what was going on behind closed doors.”

        Robert Manley, a local attorney who has represented dozens of governmental agencies, said the law is vague on how a commissioner could be punished for revealing communications without consent of the board.

        “It's pretty hard to know what would happen,” Mr. Manley said.

        Mr. Portune said Hamilton County uses secrecy as a matter of convenience.

        “As matters stand today, the process of executive session is overused, and the assertion of attorney-client privilege on documents is done in such a fashion as to put limits on what the public knows about how the county does its business,” Mr. Portune said.

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