Public Access Counselor: Board Didn’t Violate Law, Warns About Perception
November 26, 2013 — TheStatehouseFile.com
INDIANAPOLIS – Indiana’s public access counselor said Monday that the State Board of Education did not violate the law when 10 of its members sent a letter to legislative leaders without meeting in public to do so.
But Public Access Counselor Luke Britt also warned in an advisory opinion that “final decisions are mean to be open and transparent” and urged the board and agencies to be careful about following the spirit of the state’s Open Door Law.
“I encourage all public agencies to be especially attentive to the purpose of public access laws to avoid ambiguous situations and arousing suspicions of prohibited activities,” Britt wrote. “Regardless of the intent, the appearance of action taken which is hidden from public view is particularly damaging to the integrity of a public agency and contrary to the purposes of transparency and open access.”
The public access counselor was responding to complaints from four Hoosiers –Tony Lux, Ed Eiler, Cathy Fuentes-Rohrer and Julie Hollingsworth – who sought the opinion as a precursor to a possible lawsuit against the state board.
They filed their complaints shortly after Marion Circuit Judge Louis Rosenberg dismissed a lawsuit brought by state Superintendent of Public Instruction Glenda Ritz, a Democrat, who made similar allegations that the board acted illegally.
Ritz chairs the State Board of Education but was not part of the effort to draft and send a letter that asked GOP legislative leaders to have the nonpartisan Legislative Services Agency calculate A-F school grades, even before the Department of Education had finished working on the data.
The judge said Ritz didn’t have authority to go to court without representation by or permission from the attorney general. Rosenberg did not rule on the merits of the lawsuit.
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.
But in his opinion on Monday, Britt said 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.”
Indianapolis attorney William Groth, who represents the individuals who filed the public access complaints, said Britt’s decision “could be viewed as pointing out a gaping hole” in the state’s Open Door law.
He also called the decision “troublesome.”
The public access counselor “apparently believes that any public agency in Indiana can transact business in secret as long as it does so via email, even where the agency later ratifies that action by majority vote,” Groth said.
Groth said attorneys are reviewing the decision and will meet with their clients before deciding how to proceed.