State's Public Access Counselor: It's Perfectly Legal For Boards To Take Action In Secret Through Electronic Communications

Let the word go out to every governmental board throughout the state of Indiana. It's no longer necessary to publish notice and conduct a public meeting to take official actions. You can conduct secret discussions via e-mail and telephone calls to take your official actions. That's what the state's Public Access Counselor Luke Britt is saying in response to a complaint filed against the Indiana State Board of Education after its board members used electronic communications amongst themselves to decide to ask the Legislative Services Agency to calculate grades for the state's schools under the state's A-F grading system, a requirement statutorily delegated to the state's Department of Education. Because no official meeting took place, Britt said no violation of the state's open door law occurred. The Fort Wayne Journal Gazette's Niki Kelly has the story:

First, Britt said the center staff unilaterally drafted the letter. If a majority of the board had directed the staff to draft the letter, then a violation would have occurred, he found.

“For all intents and purposes, this is a meeting of the minds, which just so happened to take place in cyberspace as opposed to a brick-and-mortar building,” he said.

But he noted the state’s prohibition against so-called serial meetings does not count email as participating in a gathering.

“In this instance the email exchange could be interpreted as a ratification of a final decision by vote,” the opinion said. “I do not think it rises to that level but the perception of the public is of significant importance.”

Britt's mention of the actions of the board in this case being "hidden from public view" and "damaging to the integrity of a public agency" is of little solace given his determination that their actions did not violate the open door law. If our state's governor is going to let a law firm that is determined to corrupt every public process in this state by handpicking someone beholden to their firm to run every agency of state government, then the legislature better get busy writing an open door law that has some real teeth and provides no wiggle room. Clearly, the person in charge of protecting the public's interest is not interested in doing that.