Also Read: Access counselor: county violated Open Door law
In the roughly 22 years I have been writing for newspapers, I had never filed a complaint regarding public records access or Open Door violations.
That changed in early May.
It was a decision I thought a lot about. Usually, when I see a violation, all I need to do is let the person or board know. The response is usually a thank you, and the problem is corrected.
For a year I waited for the same self correction from the Dearborn County Redevelopment Commission.
But the situation only seemed to get worse.
In June my suspicions were confirmed when the Indiana Public Access Counselor agreed the redevelopment commission violated the Open Door law, more than once.
Most of the time when a public records access or Open Door law violation occurs, it is not with ill intent. Mistakes happen. I try to be understanding and flexible whenever possible.
If I feel a person or board is taking the situation seriously, then I expect the issue will be quickly resolved.
The public deserves to know about the decisions being made in their county government. Elected officials and appointed board representatives should never forget who they are there to represent.
Yet, when I pointed out a late meeting notice from the redevelopment commission earlier this year, the response was not what I expected. Instead of being told the meeting time would be moved to comply with state law, I essentially was told it was a “good faith” mistake. As far as I could tell, the meeting was to carry on as scheduled.
That was frustrating to me. The meeting notice was only a few minutes late, but it was at least the third time I had received a meeting notice late from the redevelopment commission in less than a year. When the notices were not late, they were barely meeting the deadline. I remember one notice I received exactly 48 hours before the start time of the meeting.
According to Indiana Code, news media requesting notice of meetings must be notified 48 hours before the meeting, not including weekend and holidays. Meeting notices also must be posted outside the principal office of the public agency at least 48 hours before the start of a meeting.
Not only do I think the redevelopment commission’s actions are not conducive to allowing the public to attend meetings, it could put an action the redevelopment commission takes in jeopardy. If someone does not like an action taken in a meeting deemed illegal, someone could try to get the action reversed. If the decision was a million dollar decision, that is going to sting in the taxpayer pocketbooks.
Good faith is fine, if it is the first time something has happened. If it keeps on happening, then it just becomes lame excuse. But I still refrained from filing a formal complaint.
Another incident that concerned me was when county redevelopment commission meeting times were changed from about 4:30 p.m. to 8 a.m.
During the discussion, a citizen expressed concern about the early start times, and the availability of the public and media to attend.
I have not been to a redevelopment commission meeting personally since the change has been made. Why? At 8 a.m. in the morning I am dropping kids off at school. One of them is not allowed in the building before a certain time, so an early drop off is out of the question. My guess is a lot of parents would face this dilemma during the school year, making attendance at a meeting very difficult, or nearly impossible.
Also, a meeting can start late and there is no guarantee how long it will last. A person on their way to work could end up being an undetermined amount of time late. If the meetings were at least still in afternoon, they could leave early and the length of the meeting would not be such a big deal.
But when this topic was brought up, I was basically told by one member, that it was the media’s problem if 8 a.m. is not a good time. Well, that really was not the point.
The point was it made access more difficult in general- for the public directly and for the media who try to help relay to the public what is going on when they can not attend.
By law, public meetings do not have to be held at a certain time. In this incidence it is the spirit of the law that I feel was violated.
Am I the only one who feels this way? Apparently not.
A similar issue is addressed in an informal complaint response posted on the Indiana Access Counselor website.
The Indiana Public Access Counselor is the person who responded to my complaints about the county redevelopment commission that I will go into more detail in a moment. A free resource to all Hoosiers, the Public Access Counselor provides advice and assistance concerning Indiana’s public access laws to members of the public and government officials and their employees.
Dated May 9, 2014, Public Access Counselor Luke H. Britt responds to an informal inquiry from Mr. Mark Cherry, regarding the Morgan County Redevelopment Commission.
Basically, Mr. Cherry expressed concern that a redevelopment commission meeting was held at 8 a.m., before the regular business hours of the county, when the public may not be able to attend.
Dearborn County regular business hours are 8:30 a.m. to 4:30 p.m. Do you see a similarity?
In his response, Britt notes:
“I do have some potential concern about the timing of the meeting. Although the ODL (Open Door law) gives public agencies the discretion to set their meetings at any time, the purpose of the ODL is to give the public the opportunity to observe and record. That being said, it may be more practical for the members of a public agency to set the meeting during regular business hours.”
When the concern about the new meeting time seemed to be brushed aside, that is when I started realizing it might take someone from out of the area to get through to the board. When I brought up an issue, or someone else brought up a possible public access or Open Door issue, it seemed to fall over and over again on deaf ears.
The $10,000 question
Earlier this year I was disappointed again when discussion surfaced about $10,000 the redevelopment commission had in their December expenditures for county administrator Terri Randall. The money was to compensate her for the extra time she had spent helping the redevelopment commission since April 2013 when former county chamber president Mike Rozow, who handled commission business previously, left the position.
The expenditure was not paid because it was stopped by county auditor Gayle Pennington, who told the commission the payment had to be handled a different way according to law.
I truly believe the only reason this $10,000 was ever discussed in a public meeting is because Pennington stopped it from going though as an expenditure. I do not remember the $10,000 ever being discussed in a public meeting prior to December. The issue of whether the $10,000 was ever discussed by the redevelopment commission in a public meeting was one of the subjects I asked an opinion on from the public access counselor.
I made a public records request to the county, asking for the official county redevelopment commission public meeting minutes from the time Randall took over duties after Rozow left, through the commission’s December meeting. I did not see a discussion on the $10,000 anywhere. I looked through all the reasons given by the commission for executive sessions for the same time period.
Executive sessions are meetings that, by law, may be closed to the public, if it falls in a certain category allowed by law. A board is required to state exactly which one of those reasons an executive session is being held. None of the reasons given fit a discussion regarding the $10,000.
In an addendum to his original opinion, Britt agreed the circumstances surrounding the $10,000 was a violation of the state Open Door law.
County council eventually approved a salary boost for Randall in March, in a vote that broke with a 12-year precedent. Usually council required at least five votes to pass a salary change. But then a motion “failed” with only four votes.
The decision was made in that moment to go by the letter of state law- changed 12 years ago- so the motion for the salary boost could pass with a simple majority of four votes.
After some research it was discovered that council faced a similar situation in 2005, according to official county council meeting minutes.
During the county council’s March 22, 2005, meeting, members voted on whether to award the recently replaced county coordinator a severance package. The vote count? Four ayes. The minutes then state it was not certain if four or five votes were needed for the motion to provide the severance to pass.
Fast forward to the May 24, 2005, county council meeting minutes, when an answer to the question was provided.
“(Then council president) Charlie Fehrman stated that after reviewing with the county attorney employee severance, it was clarified that the issue requires five votes since it is attached to salary and since there were only 4 votes that motion died.”
Two very similar votes, two different outcomes.
I asked if this type of situation could open the county up to liability. I never received an answer.
In addition to bringing up the issue with the public access counselor, I also spoke with someone at the state board of accounts. Basically, since the county fixed the problem retroactively, including the commissioners adding redevelopment to the county administrator’s duties months after the work started taking place, the issue has been resolved on paper.
But, again, I still have a real problem with the apparent secrecy in which this issue initially developed.
If Pennington had not stopped the expenditure, however, there probably would have been other violations.
I hope everyone gave Pennington a big thank you for spotting the problem, and putting a stop to it before it went any further down the wrong path. She deserves it.
Keep to the topic
My other complaints filed with the public access counselor centered on executive sessions.
According to official meeting minutes from the redevelopment commission, I contended topics were discussed, not covered by the reason given for holding the meeting.
Basically the reason given for holding a closed door executive session Monday, Sept. 9, was to discuss strategy with the respect to purchasing real property. Yet, topics of discussion, according to redevelopment commission minutes, included Randall asking permission to send an incentive offer to ‘Project C’ and asking the former Dearborn County Economic Development Initiative to assist with funding for extending waterlines out to Projects Millings and also improvements to the Hirlinger entrance.
These did not seem to be about the purchase of real property. Only the topic given for an executive session may be discussed during a particular executive session.
Then during an executive session held Thursday, Nov. 21, the reason given for the meeting was again to discuss strategy with the respect to purchasing real property. But meeting minutes show Randall was given permission to submit three grant requests to the City of Lawrenceburg’s Regional Economic Development Program.
From my research it appears the grant requests were for a county wide visioning study, a county wide economic redevelopment coordinator, and money for the county redevelopment commission. None of these reasons falls under “strategy with respect to purchasing real property.”
I also contended the redevelopment commission had not kept executive session memoranda as required by law. The memoranda, in addition to basic items such as the time and date of the meeting, is supposed to include a certification that the governing body did not discuss anything in executive session other than the subject matter specified in the public notice.
That last part is what is important to me. I want the commission or its representative to state, on the record, that nothing was discussed in executive session that was not covered in the public notices.
In his response Britt stated, “The Commission does not dispute the executive session discussion topics fell outside the noticed subject matter. Strategy with respect to purchasing real property does not include funding to extend waterlines, property improvement, or grant money pass-through. These matters should either be discussed in public or placed on an executive session notice, if applicable. The Commission should be particularly mindful of the added scrutiny which comes with closed door meetings and make every effort to be as transparent as the law requires, if not more so.”
Later on he continues, “The Commission concedes the memoranda are absent, but argues it was an inadvertent mistake. While I appreciate the acknowledgment and candor in its concession, a public agency cannot be ignorant of the laws protecting public access. In fact, access is one of the essential responsibilities of government as they are the stewards of the citizenry’s resources. I trust that pursuant to these recommendations, the Commission will comply with the Open Door Law in the future. While good faith efforts may be acceptable in the private sector, public servants are held to a higher standard when it comes to transparency and access.”
And that paragraph strikes at the very heart of why I filed the complaint. I could not have worded it any better.
Britt did disagree with me on one point. When I filed the complaint I was not sure if I should list the missing memoranda as an Open Door law or a public records act violation, so I indicated both. Britt stated that I was not denied access to the missing memoranda, because, well, they do not exist. Therefore, the county could not deny giving me a record that did not exist. Instead he classified it as an Open Door violation.
As redevelopment becomes more and more of a hot topic in the county, with millions of dollars being spent and/or offered in incentives to lure businesses and jobs, sometimes at the expense of schools, it has become increasingly more vital that the action of these boards be scrutinized. The public needs to be aware of the decisions being made.
In the opening letter attached to the 2014 State of the County Report released through the county commissioners, it states, “Whether it’s forging new partnerships, promoting economic development, or managing the day-to-day operations of the county, you can rest assured the trust you have placed in us is not taken lightly. We have much work ahead of us and remind you that our door is always open to hear your ideas and feedback as this truly is your government.”
I hope going forward, that statement proves to be true.
For more go to www.thedcregister.com, click on opinion in the menu bar above the photo slideshow. There you will find links that includes the letters I wrote to the public access counselor, the county’s response, the public access counselor’s advisory opinion, his addendum to the opinion regarding the $10,000, a copy of the State of the County report and a proposed public records access form recently suggested by the county attorney.
Denise Freitag Burdette is assistant editor of The Journal-Press and The Dearborn County Register.
Other Related Links:
Copies of the complaint, response, advisory opinion
Give 2 cents’ worth on county record request form
State of the County Report
Co. council skirts vote precedent
What you need to know
The following are a sample of questions and answers found on the Indiana Access Counselor website and/or public access handbook.
PUBLIC RECORD ACCESS
What records are available to the public, and what records are confidential?
Any record that is created, received, retained, maintained or filed by or with a public agency is a “public record.” This includes records created for or on behalf of a public agency by an outside contractor. All public records must be disclosed unless exempted from disclosure by law. The Public Access Counselor does not maintain a list of all records that are confidential, since records are declared confidential in different areas of state and federal law as well as administrative rules of public agencies and rules of the Indiana Supreme Court.
How much can I be charged for a copy of a record?
For a record from state agencies, the current fee allowed is .10 cents per page for 8 ½ by 11 or 8 1/2 by 14 inch sheets of paper. Other agencies may charge only the actual cost of copying, which includes only the cost of the paper and the per-page cost for use of the equipment to reproduce the record. The agency cannot charge anything to allow you to inspect the record. Also, the agency cannot charge a fee to search for the record or any fee to examine or review a record to determine whether the record is disclosable. The fee must be uniform throughout the agency and uniform to all purchasers.
Do I have to tell the government why I want the record?
You are not required to state the purpose for the record or the reason you want the record, but there are exceptions. Some records are available only if you can show certain reasons why you qualify for the record such as a limited criminal history of a person. In that case, the public agency would not be in violation of the law if it asked you to establish why you qualify for the record. Very few records fall within this exception.
How long does the agency have to give me the records I requested?
There is no specific timeframe when the records have to be produced. However, the agency should produce the records in a reasonable time. What is reasonable may depend on factors such as how many records you requested, whether the records are old and stored off-site, and whether the records must be redacted to take out confidential information.
The public agency must respond to your request within 24 hours if you telephoned the agency or went to the agency to request the record. If you mailed, email, or faxed the request, the agency must respond within seven calendar days. The response could be an acknowledgment that the agency has received your request and how and when the agency intends to comply. If the agency knows some of the records you requested are exempt, the agency should tell you why the agency will deny the record.
OPEN DOOR LAW
What government meetings are open to the public?
Generally, all meetings of the governing bodies of public agencies must be open at all times so members of the public may observe and record them. Although this general rule may appear to be straightforward and easy to apply, it contains several words and phrases which are given a specific meaning by the ODL. Additionally, several types of meetings are not required to be open to the public.
What is a meeting?
“Meeting” means a gathering of a majority of the governing body of a public agency for the purpose of taking official action upon business. I.C.§ 5-14-1.5-2(c).
What is significant about executive sessions?
Executive sessions are significant because the ODL permits governing bodies to meet privately under certain circumstances. “Executive session” is defined in I.C. § 5-14-1.5- 2(f) and means a meeting from which the public is excluded, except that the governing body may admit those persons n ecessary to carry out its purpose. The ODL sets out the specific matters about which a public agency can hold an executive session. These include instances like government strategy discussions with respect to collective bargaining and litigation, interviews of prospective employees, job performance evaluations, and the purchase or lease of property by the public agency.
May a meeting be set at any time?
The ODL does not define any particular time for a meeting as inappropriate. However, a public agency may not delay the start of a meeting to the extent the delay frustrates the public’s right to attend and observe the agency’s proceedings.
What kind of notice is required?
*Forty-eight business hours in advance
*Date, time and place where Governing Body will meet
*Not required to be published in newspaper unless that is required under some other statute
*Annual notices are permitted
*Emergency meetings are exception to 48 hour notice requirement
*Must post at principal place of business or meeting location
*2012 legislation concerning local public agencies allows the adoption of policies to provide additional notice (website, e-mail, annual notices for non-media).
When can a governing body take final action on an item which is the subject of an executive session?
Final action (i.e. a vote) must be taken at a meeting open to the public.
For more information
Indiana Public Access Counselor