Indiana Public Access Counselor Luke Britt came down pretty hard on the State Board of Education for its recent end-run around the Indiana Open Door Law. But he concluded it didn’t violate the law.
Britt also suggested the legislature may want to close a loophole that let the education board take action on a controversial issue – Indiana’s A-to-F letter grades for schools — without public discussion of what it was doing.
“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,” he wrote. “Regardless of 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 dispute concerns an Oct. 16 letter from 10 of the 11 board members to legislative leaders, asking them to direct the Legislative Services Agency to calculate school grades, a task normally handled by Indiana Department of Education staff. Elected Superintendent of Public Instruction Glenda Ritz, who chairs the state board, wasn’t consulted and didn’t sign the letter.
Ritz sued, arguing the signing of the letter constituted an illegal secret meeting. But a judge ruled Ritz’s lawsuit was invalid because only the attorney general can sue on behalf of a state official. Tony Lux, Ed Eiler, Cathy Fuentes-Rohwer and Julie Hollingsworth took up the torch and filed a complaint with the public access counselor, an appointed state official charged with making sure public-access laws are followed.
State Board of Education members said they didn’t meet to sign the letter but discussed and agreed to its language by email. According to information provided to the public access counselor, the letter was drafted by staff at the Center for Education and Career Innovation, a new state agency created by Gov. Mike Pence, and circulated by email to board members.
Britt called that tactic “a meeting of the minds, which just so happened to take place in cyberspace as opposed to a brick-and-mortar building.” But the Open Door Law defines a meeting as an actual gathering of a majority of the members of a public body. State law recognizes that boards can meet by teleconference or phone but not by email.
But even if the law allows email deliberation and decision-making, that doesn’t mean it’s a good idea. It affronts the very purpose of the Open Door Law: that “the official action of public agencies be conducted and taken openly, unless otherwise expressly provided by statute, in order that the people may be fully informed.” As Lesley Weidenbener of Statehouse File wrote, why would boards choose to address any controversial issue in public “if the members could take care of business through email?”
The public access counselor’s opinions don’t have the force of law, but it’s now unlikely a judge would rule against the education board. So from the perspective of transparent government, it’s disappointing the ruling went the way it did.
On the other hand, Britt called forcefully for public officials to abide by the spirit as well as the letter of the law. And he put the ball where it belongs: in the state legislature’s court. When a gaping hole appears in a law that’s supposed to protect public access, it’s up to lawmakers to close it.