A man walks by a billboard for a drug recovery center. (Photo by Spencer Platt/Getty Images)

The budget rider seeks to overturn a unanimous Ohio Supreme Court decision last month that determined OneOhio Recovery Fund is subject to public records law

BY: NICK EVANS – Ohio Capital Journal

Last month, the Ohio Supreme Court ordered OneOhio Recovery Foundation to hand over public records. If the state Senate gets its way on the budget, the non-profit managing opioid settlement proceeds might never have to do so again.

The Senate’s version of the budget orders the OneOhio board to hold meetings in public, but it also includes a provision specifying the organization is not a state entity. Because it’s not a public office, it would be exempt from requirements — like complying with public records requests.

Moreover, by excising OneOhio board members from the definition of “public official,” one advocate contends, they might not be subject to bribery laws.

The court case

That runs directly counter to the Ohio Supreme Court’s unanimous opinion. The case stemmed from the board’s first meeting in June of 2022. Dennis Cauchon, who heads up the drug policy organization Harm Reduction Ohio, tried to attend the meeting, but organizers forced him to leave. Cauchon then filed a public records request seeking any documents the board prepared for that meeting as well as any prior meetings they hadn’t announced.

Despite provisions in its founding document ensuring meetings and documents remain public, OneOhio turned Cauchon down. In court, OneOhio argued that as a private nonprofit they aren’t subject to public records law.

The court applied a four-part test and determined that OneOhio is the “functional equivalent” of a public office. The justices concluded “the foundation is performing a historically governmental function — the disbursement of public money.”

They flatly rejected OneOhio’s contention there isn’t “even a hint” of government officials controlling its day-to-day operations. The ruling notes the governor appoints the executive director, and various government entities appoint all 29 of the board members.

“The Foundation’s May 16, 2022 board meeting was organized by the interim director of RecoveryOhio (an organization commissioned by the governor) and was held at the Ohio Department of Public Safety, where RecoveryOhio typically holds its meetings,” the opinion stated, adding. “The attorney general’s office paid for the Foundation’s startup operating expenses.”

The budget rider

State senators inserted language in the recently approved budget that would override the court’s ruling. The provision is notable for its series of definitions laying out what OneOhio isn’t. According to the Senate, it isn’t a state agency, executive agency, public office, state entity, or public employer. Similarly, board members are not public employees or public officials.

In an emailed statement, OneOhio spokesperson Connie Luck applauded the Senate’s move.

“We support the Senate’s budget language,” she wrote. “Along with the recent decision by the IRS to grant the foundation 510c3 status, these actions confirm the OneOhio Recovery Foundation is a private, nonprofit organization.”

Notwithstanding the supreme court decision last month ordering the OneOhio to hand over public records, she added, “the foundation supports a broader public mission and will continue to operate as arguably the most transparent organization in the state of Ohio.”

But the string of un-definitions in the Senate’s budget would put OneOhio’s operations in a black box. And that worries Cauchon.

“$1.1 billion is a lot of money,” he said, “and it is profoundly important to reducing overdose death in Ohio.”

“You have a right to know how (the) government is spending government money,” Cauchon continued. “It’s kind of an absurd concept that they can get $1.1 billion, and keep it secret, how it’s done. From them, all the public needs to know is what they announce they’ve spent the money on.”

Long-term implications

OneOhio will likely be around for decades. Settlement money has already begun to arrive, according to recent reporting from Kaiser Health News. It will continue trickling in through 2038.

In all, Ohio will receive $2 billion, 55% of which will go to OneOhio. It’s a substantial pot of money, and many service providers will be clamoring for their share. But without oversight, Cauchon calls it “a petri dish for corruption.”

He points to one of the public official provisions. It references the statute dealing with “offenses against justice and public administration.” Among the crimes in that chapter are bribery, theft in office and unlawful interest in a public contract. By carving out board members from the chapter’s definition of “public official,” Cauchon argued, they wouldn’t be subject to bribery charges.

“The county commissioner serving on OneOhio is not considered a public official for the Bribery Act,” Cauchon offered as a hypothetical example.

That said, the same statute exempts JobsOhio board members from the definition of public official, as well. The difference, Cauchon noted, is the JobsOhio statute includes explicit prohibitions on bribery and conflict of interest. The Senate budget rider didn’t include any similar provisions for OneOhio.

Cauchon argued even if lawmakers now don’t intend to abuse those changes to steer contracts and reward allies, eventually somebody will.

“My concern early on was that it would be a nudge or a wink, but now it doesn’t have to be a nudge or a wink. You can just do it. It’s unambiguously legal,” he said.

“And there’s no way for anyone to find out,” he added, “because you have no right to know who got any contract, who got how much money, how the decision was made. It’s a beautiful design if that’s your goal.”

Follow OCJ Reporter Nick Evans on Twitter.