Education Board Faces New Lawsuit
December 5, 2013 — TheStatehouseFile.com
INDIANAPOLIS – Four Indiana residents have filed suit against the State Board of Education, saying members acted illegally when they requested help from legislative leaders without doing so in a public meeting.
The lawsuit – filed in Marion Superior Court – comes just days after an administrative ruling found that the education board members did not “definitively” break state law.
William Groth, the attorney who filed the suit, said his clients – Ed Eiler, Tony Lux, Julie Hollingsworth and Catherine Fuentes-Rohwer – believe that board members “violated both the letter and spirit” of the Open Door Law when they decided through email to send sign a letter asking House and Senate leaders to get involved in A-F grading for schools.
“They also strongly disapprove of the use of email communications to transact official governmental business in secret and out of the spotlight of public scrutiny and in an effort to circumvent the ODL’s notice and transparency requirements,” Groth said.
The state’s Open Door Law requires government boards or commissions to have a public meeting to vote, take other action or even to receive information.
Eiler, Lux, Hollingsworth and Fuentes-Rohwer filed complaints with State Public Access Counselor Luke Britt, accusing the board of violating the law. In an advisory opinion, Britt said last week that he found no evidence that a majority of the State Board of Education met to approve the letter to legislative leaders. The board’s staff – housed at the state’s Center for Education and Career Innovation – say they crafted the letter and distributed it by email to board members for signature.
Britt said it’s not clear whether a majority of board members directed the staff to write the letter. And he said state law exempts email from a ban on so-called serial meetings, in which members gather privately in small groups to reach consensus outside public view.
Still, Britt said that “even through email, a perceived proactive ratification of an action concerning public interesting is leaning against the public policy intentions of openness and transparency.”
“I firmly believe the call-and-response nature of the email exchange amounted to an endorsement of the action,” he wrote, “but I cannot say it is a vote in the traditional sense.”
Earlier this fall, state Superintendent of Public Instruction Glenda Ritz – who chairs the board but had no prior knowledge of the letter and email conversation – filed a lawsuit alleging a similar violation of the Open Door Law. A judge threw out that suit, saying she didn’t have the right to file it without representation from the attorney general or his permission to use other attorneys.
However, there was no decision on the larger public policy questions. That led to the lawsuit from Eiler, Lux, Hollingsworth and Fuentes-Rohwer.
Lou Ann Baker, a spokeswoman for the Center for Education and Career Innovation, declined to comment about the new lawsuit on behalf of the board. She said she had not yet seen the suit and any comments would be premature.
Earlier in the day, Britt told the State Board of Education members that they had come close to violating the law. His comments came during an orientation session in which Ritz and board members had planned to try to iron out their differences, which have made recent meetings tense and somewhat unproductive.
But arguments over the scope of the session and what members were and weren’t allowed to talk about plagued the discussions. Board members told Ritz they had wanted her to advertise the meeting as a public session that would have allowed business to take place.
Ritz said that wasn’t the impression she had from talking to Gov. Mike Pence, who appoints the board.
“I had a conversation with the governor and the governor and I said that we thought the best forum to begin to build relationship was to have an orientation,” she said. “I’m simply doing what the governor suggested to me in our private meeting.”
Britt told members that meant they couldn’t talk about anything other than general board operations – and couldn’t approve any changes to their structure or governance.