Kowalski censured for alleged disclosure of privileged documents 

by Judy Stringer

Oct. 15 city council meeting

Following a 15-minute closed-door recess to review evidence and a 45-minute open-meeting discussion, Hudson City Council voted 4-2 to censure council member Nicole Kowalski – the second time it has done so.

Council President Chris Foster made the censure motion during the council comment period, saying that Kowalski acted unlawfully when she emailed Hudson resident Don Reed records protected by attorney-client privilege.

The information in question is 46 pages that Foster provided to council on Dec. 6, 2022, as evidence for Kowalski’s first censure. Four days after that censure, Kowalski filed a lawsuit against the city of Hudson and Hudson City Council, which asked the Summit County Court Of Common Pleas to vacate the censure and compel the city to release unredacted copies of the Dec. 6 evidentiary documents.

Judge Tammy O’Brien dismissed the first part of that suit in February 2024, citing “lack of subject matter jurisdiction.” Then, on July 12, O’Brien ruled that the Dec. 6 records Foster provided are protected by attorney-client privilege and not subject to the Ohio Public Records Act.

“This body could actually refer this to a prosecutor and potentially prosecute this out,” Foster said of his motion. “I think the censure coming from this council is saying – I think it’s our duty to say – that this type of behavior can’t be tolerated and shouldn’t be tolerated, and it is a censure without penalty.”

Kowalski noted that this marks the third time Foster has sought to censure her.

“And, Mr. Foster, what I would like to say to you is you can censure me 100 times. I am not going to leave this dais until you either remove me or you take me out at the ballot box,” she said.

Kowalski added that it took two years for the court to rule on the attorney-client privilege aspect of the case, because council had waived privilege on the records in question during the Dec. 6, 2022, discussion, and it was unclear how broad that waiver was.

“Why would anyone think it would be an issue to then share documents in which the governing body had just waived privilege?” she asked.

“I recognize we can all make mistakes. Things do happen,” said council member Karen Heater, who voted in favor of the censure. “Not once have I heard any consideration that ‘You’re right. I did send this. I shouldn’t have done that.’ … It’s just continual denial.”

Council member Skylar Sutton and Chris Banweg also supported the censure, citing the court’s finding.

Several times during the Oct. 15 censure discussion, council member Patricia Goetz stated that she believes the censure motion violated the state’s open records statute, as it was not on the agenda for public disclosure.

City Solicitor Marshal Pitchford said it was his opinion that “bringing forth this motion under council comments during a regularly scheduled meeting is in no way, shape or form a violation of the Open Meetings [Act].”

Kowalski stressed that she had no prior notice of the censure proceedings this time or on Dec. 6, and no opportunity to prepare a defense prior to either meeting. She also repeated the claim that she has been personally targeted by Foster.

Council member Mike Bird, who along with Goetz voted against the censure, said he questioned the timing, given the alleged violation occurred two years ago and the judge’s latest ruling was passed on July 12.

Rec center inquiry

In its legislative agenda, council approved seven ordinances related to the sale of bond anticipation notes for financing a number of upcoming projects, including construction of a public works facility on Hudson Drive, construction of a new clubhouse at Ellsworth Meadows Golf Club and the development of multipurpose trails on Boston Mills and Valley View roads.

In addition, Foster appointed Banweg, Heater and Bird to a newly created ad hoc committee that will explore the “financial viability” of a city recreation center. ∞