Hello again. How goes your summer so far?
In this edition of Open Doors, we are including a few recent news pieces created through public records or ask the public to participate and become a part of the public record. We also highlight a recent PAC opinion regarding an executive session in Marion, Indiana.
The Indiana Coalition for Open Government helps to ensure a free flow of information in our democracy. We’d love to hear from you.
📰 A Blast of Open Government News
What interesting open government news have you read recently? Let us know. info@indianacog.org.
Here’s what what we know this installment.
Ex-Pence aide seeks Indiana elections office that fired him
Davies, Tom. Chicago Tribune (Online), Chicago: Tribune Publishing Company, LLC. Jun 4, 2022.
Records obtained under Indiana’s public records act showed he was fired in 2009 after eight months in Republican Todd Rokita’s office due to “incomplete” work, “inefficient execution” and a “lack of focus. He refused to agree to a work improvement plan and submitted his resignation when he was fired, according to a termination letter.
Loved to death: Damage leads Hoosier National Forest to propose camping closures
Charron, Cate. Star Press; Muncie, Ind. 22 June 2022: A.3.
The Hoosier National Forest is home to rolling hills, towering trees, waterfalls and dozens of species of fauna and flora. But the public land in some spots is now being overused and damaged.
[…]
The proposal is in the public comment scoping period, so people are encouraged to give feedback on this proposal.
Emails can be sent to comments-eastern-hoosier@usda.gov, and mail can be addressed to 811 Constitution Ave. in Bedford, IN 47421. The USDA asks people to include their name, address and phone number with "Hickory Ridge Dispersed Sites Proposed Project" as the subject line. Comments must be submitted though these avenues to be considered part of the official public record.
No arrests after police search [Fairfield Township] trustee's house
Wilkins, Ron. Journal & Courier; Lafayette, Ind. 24 May 2022: A.1.
[Editor’s Note: The Public Access Counselor’s office issues opinions and not rulings.]
In September, [Taletha] Coles refused to respond to a Journal & Courier request to inspect credit card statements and receipts. A December ruling [21-FC-152] by the Indiana Public Access Counselor's office chided Coles for her lack of response, noting the financial records are public record.
In March, the Journal & Courier filed a lawsuit to get access to the statements and receipts.
On April 24, a court order was published directing Coles to produce the records. She provided some — but not all — of the credit card statements and none of the receipts.
Asked for the receipts, Coles blamed her employees for destroying them. Former employees took exception to Coles' allegations.
✏️ Pro-Tips for Sharpening Your Requests and Participation
ICOG highlights interesting Public Access Counselor opinions and other tips provided by the open government community.
22-FC-68: Alleged Violation of the Open Door Law by the Marion Common Council
This particular Opinion covers a complaint alleging the Marion Common Council violated Open Door Law [IC 5-14-1.5-1] by holding an improper executive session and taking official action on public business without a public meeting. Council President Brian Cowgill filed a response on behalf of the council.
A Summary of the Opinion
On April 19th, the Council met in executive session and then had its regular public meeting. During the public meeting, the Council voted to retain the law firm of Taft Stettinius & Hollister.
On April 28th, Linda Wilk filed the complaint, alleging the Council violated ODL by discussing the hiring of the law firm in an executive session instead of a public meeting.
Wilk also shared that the Council received a letter dated March 31st, 2022, from Taft Stettinius & Holliste, thanking the Council for retaining them.
Council President Cowgill submitted a response to the Public Access Counselor’s Office confirming that the executive session did take place for the alleged reason, no action was taken during the meeting, and that it followed Indiana Code’s 5-14-1.5-6.1(b)(5) [which states the governing body can meet in executive session to receive information about and interview prospective employees].
Cowgill also shared that the Council discussed the issue during the regular public meeting the same evening, prior to voting. The minutes were also included that supported the same. Cowbill insisted that the the letter from the law firm was simply a proposal.
Public Access Counselor Luke Britt pointed out that Open Door Law allows for executive sessions regarding prospective employees, however, the law firm constitutes an independent contractor. ODL does not authorize governing bodies to discuss contractors in an executive session.
For this reason, Britt concludes that the Council should have discussed this entire proposition in a public meeting.
Similarly, Britt shared that ODL requires the posting for executive sessions to include the subject matter reason for conducting the meeting. In their posting, the Marion Common Council stated:
The purpose of this meeting is to consider hiring outside counsel.
The Council failed to cite the specific provision from Indiana Code 5-14-1.5-6.1(b), which lists out the subjects that may be discussed in a close-door executive session.
Sadly, neither party provided a copy of the March 31st letter from Taft Stettinius & Holliste to the PAC office, however, the minutes reflect that the opening line from the letter read:
"Thank you for selecting Taft Stettinius & Hollister to represent the Common Council of the City of Marion.”
Britt continued, sharing that ODL expressly states that a governing body take final action on public business in a public meeting:
Even so, without seeing the letter, this office cannot reach a definitive conclusion about what the letter means in the context of the ODL.
Inferentially, it looks problematic. If the Council’s public vote on retaining outside legal counsel was merely a performative act for something the Council already approved in secret, then the Council meandered outside the confines of the law both in letter and in spirit.
This office encourages the Council to remain mindful of the requirements of the Open Door Law going forward. Moreover, the Council should adjust its approach to executive sessions consistent with this opinion.
And for all of this, the PAC Office concluded:
Based on the foregoing, it is the opinion of this office that the Marion Common Council violated the Open Door Law by meeting in executive session for an unauthorized purpose and by providing defective public notice for the executive
session.
Lessons Learned:
When a governing body meets for an executive session, the notice for the meeting must include the date, time, location, and cite the specific subject from the Open Door Law’s approved topics in 5-14-1.5-6.1(b)
Executive sessions using 5-14-1.5-6.1(b)(5) can only be used to discuss prospective employees and not independent contractors.
When filing a complaint with the PAC Office, be sure to include all supporting evidence.
While traditional minutes are not required for executive sessions, the governing body must certify by a statement in the memoranda and minutes that no other subject matter was discussed in the meeting other than what was already announced, thus providing another document for accountability:
5-14-1.5-6.1(d) The requirements stated in section 4 of this chapter for memoranda and minutes being made available to the public is modified as to executive sessions in that the memoranda and minutes must identify the subject matter considered by specific reference to the enumerated instance or instances for which public notice was given. The governing body shall certify by a statement in the memoranda and minutes of the governing body that no subject matter was discussed in the executive session other than the subject matter specified in the public notice.
Do you have a favorite Public Access Counselor opinion [advisory or informal]? Share it in the comments below or e-mail us at info@indianacog.org