On August 4, 2025 the Ohio Ethics Commission (OEC) issued an opinion stating that public officials or employees could use frequent flyer miles and other rewards earned during official business for their own personal use. The entire opinion may be found here: Adv. Op. No. 2025-02.  

In prior opinions, the personal use of frequent flyer miles while permitting public officials to use credit card points and hotel rewards was restricted. The revised interpretation will bring Ohio in line with similar federal guidance. All rewards programs will now be treated the same by the OEC. The Commission expressed its hope that the new interpretation will clear up confusion for public agencies and reduce administrative burdens associated with enforcing the rule.

Under the revised standard, Ohio public officials or employees may use frequent flyer miles, credit card rewards, hotel points, or other rewards earned while on official business in their personal life, provided that:

1. The rewards are earned in the same way as members of the public would have earned them; and
2. The rewards do not impose additional costs on the public agency.

However, a public official or employee is still prohibited from choosing an airline, vendor, a conference, event, or service based on whether it provides frequent flyer miles or other rewards points.

Under Ohio’s conflict of interest laws, public officials are prohibited from soliciting, accepting, or using their authority or influence to secure any financial benefit for themselves. R.C. 102.03(D) and (E). While frequent flyer miles constitute a “thing of value” for Ohio ethics law purposes, the OEC does not believe the value is significant enough to impair the public official’s independent judgment. Because the frequent flyer miles are broadly available to all passengers, are uniformly accrued, and are not being offered to officials for performing their official duties, the OEC maintains that the programs do not create a “substantial and improper influence” upon the public official’s judgment.

Similarly, public officials may not have an interest in the profits or benefits of a public contract, and the public agency’s purchase of a flight would be a public contract. R.C. 2921.42(A)(4). Public officials would have an interest in the contract with the airline based on the frequent flyer miles they are receiving, but the OEC points out that the benefit is relatively small and that it would be more administratively efficient to allow officials to use these programs compared to the cost of preventive measures. To minimize the risk to the public, the OEC’s new position still prohibits public officials from selecting a specific airline based on the frequent flyer miles they would receive from the flight.

What does this mean for your district? School board members and district employees may now keep and personally use frequent flyer miles earned during official travel, and Ohio law no longer differentiates between airline miles and other rewards programs such as credit card or hotel points. However, public officials and employees are still limited in the selection process, as the Commission specifically notes that vendors may not be selected based on the rewards provided, and there must be no additional costs imposed on the district.

State ex rel. Platt v. Montgomery Cty. Bd. of Elections, Slip Opinion No. 2025-Ohio-2079.

The Ohio Supreme Court ruled in June that some emails were improperly withheld by the Montgomery County Board of Elections (“Board of Elections”) in response to a public records request. However, based on the specific facts at issue, the Court also ruled that an email sent by a Board of Elections member from his personal email account was not a public record. This appears to be a marked change from previous Ohio Supreme Court decisions on public records and will be a case to take with caution.

In December 2023, Mary McDonald filed a petition to be on the March 2024 primary election ballot as a Republican challenger for a seat on the Montgomery County Board of Commissioners. The Democratic candidate for the seat was the unopposed incumbent Debbie Lieberman. Mohamed Al-Hamdani, the chairman of the Montgomery County Democratic Party, along with Brenda Blausser from the City of Trotwood, challenged McDonald’s placement, alleging McDonald was not qualified to be on the ballot because she was an elected member of the Montgomery County Democratic Party Central Committee and had not resigned from that office.

Al-Hamdani was not only the party chair but also a partner of the law firm Flanagan, Lieberman & Rambo. Another partner in the firm, Dennis Lieberman, the husband of Debbie Lieberman, was McDonald’s would-be opponent in the general election.
The Board of Elections conducted a protest hearing where the lawyer representing the protestors referred to a “legal memorandum from the county prosecutor’s office,” and said he received the memo from Dennis Lieberman. At the hearing, it was stated that the memo was a legal opinion requested by the Board and was not to be disclosed because it was covered by “attorney-client privilege.”
After hearing the protest, the Board deadlocked 2-2 on whether to place McDonald on the ballot. Secretary of State Frank LaRose cast the tie-breaking vote to allow McDonald to be on the primary ballot, and she was selected as the Republican candidate. She went on to defeat Lieberman in the November 2024 general election.

The Board of Elections director called for a full investigation into the leak of the attorney-client privileged memorandum. The investigation found the memo was emailed to the four Board members. One of the Board members then forwarded the email to his personal email account, and it was then forwarded via the personal email account to Al-Hamdani, who sent it to Dennis Lieberman, who forwarded the memo to the attorney representing the protestors at the hearing.
At issue before the Court was a records request that came to the Board of Education for emails “to or from any member of the Montgomery County Board of Elections … wherein… the foregoing-referenced “legal memorandum from the county prosecutor’s office” … was sent or received.” The legal memorandum was not requested.

The focus of the requester and the Court was on three emails sent on January 10, 2024, that the Board’s investigative report refers to:

1. the email sent from the prosecutor’s office to the Board members, which transmitted the memo concerning the protest to McDonald’s candidacy;
2. the email one Board member sent from his Board email account forwarding the memo to his personal email account; and
3. the email the Board member sent from his personal email account forwarding the memo to Al-Hamdani.

In its decision, the Ohio Supreme Court found that the emails #1 and #2 above were public records, while the attachment (e.g. the legal memo) was not a public record. The Court acknowledged its previous decisions, finding that a communication does not have to contain purely legal advice to be protected from disclosure by the attorney-client privilege. If the communication “would facilitate the rendition of legal services or advice,” then the communication does not have to be released, the opinion stated. After reviewing the email, however, the Court found the only legal advice the prosecutor provided was in the attached memo, not the email itself. “The email did not reveal any client confidences or contain any substantive text relating to the legal advice from the prosecutor’s office to the board.”

However, the Court appears to have shifted from its prior decisions when it ruled that email #3 was not a public record. The Court acknowledged that “[e]mail messages are records for purposes of the Public Records Act if they were ‘created or received by or coming under the jurisdiction of [a] state agenc[y]’ and ‘serve to document the organization, functions, policies, decisions, procedures, operations, or other activities of the office.’” The Court did not find any evidence that the email from the Board member’s personal email account was created by the Board or fell under its jurisdiction. It was not a public record, in the Court’s opinion, because it was not “’kept by any public office,’ R.C. 149.43(A)(1).”

The Court found the board violated the Public Records Act and awarded the requester the maximum $1,000 in damages, court costs, and the opportunity to seek attorney fees from the board.

What This Means for Your District:
This case could note a marked shift from the Ohio Supreme Court’s prior decisions impacting public records that are contained within personal email accounts and/or personal cell phones.

This is a case to apply with caution. There is no clear indication that this is a full change from the Court on public records, or if this was a fact-specific decision. Litigation challenges are expected to flesh out the full extension of this decision on records within personal emails and personal cell phones. Please feel free to contact your Ennis Britton attorney to discuss the implications your school district may have with its records, or any applicable records requests, considering this case.