Members of public bodies may be required to testify about discussions held in executive session, according to a recent appeals court decision. The court found that public bodies have to be able to show their discussion topics were proper for executive session, and cannot claim a general “executive session privilege” to avoid offering that proof.

In February 2025, a resident of the Village of Batavia filed a lawsuit against the Village claiming it was violating the Open Meetings Act by discussing improper subjects in executive session. As part of the discovery process in that case—the opportunity for each side to get information from the other side during litigation—the resident posed questions to Village Council members about their conversations during executive session. The Council members refused to answer on the grounds that the information was privileged, both under a general executive session privilege and under the attorney-client privilege, because the Village’s lawyer was present for the discussions.

This month, in Rosenhoffer v. Batavia, the 12th District Court of Appeals ruled there is no general executive session privilege, and that the Village would have to submit the answers to the resident’s questions to the trial judge for the judge to decide whether the information was protected under the attorney-client privilege, or otherwise confidential.

The appeals court acknowledged that Ohio law specifically prohibits public officials from disclosing confidential information, but found that nothing in the Open Meetings Act automatically makes the information discussed in executive session confidential. The appeals court also found that just because an attorney is present at an executive session, does not mean the discussion was protected by the attorney-client privilege. Only conversations in which the client seeks legal advice and/or the attorney provides legal advice are privileged.

This decision, combined with others like it in recent years, means that school board members cannot assume the general topics of discussion at their executive session conversations will be confidential. That aligns with the Open Meetings Act requirement that boards publicly state their reasons for going into executive session. Essentially, the courts have said public bodies can be required to prove—via testimony under oath—that they were only in executive session for those limited permissible purposes. In any litigation over the use of executive session, school boards will have to provide enough information to prove their conversations were limited to proper purposes. Boards can still claim confidentiality (for attorney-client privilege, bargaining strategy, etc.), but courts will review those claims and make case-by-case decisions about what must be disclosed.

Boards, superintendents and treasurers should review the requirements for executive session discussions and consult with counsel if they have any questions or concerns.