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3/15/2012 8:44:00 AM
Officials sometimes overlook the Indiana Open Door Laws' intent

Noelle M. Steele, Daily Reporter Editor-in-chief

GREENFIELD — At its first meeting this year, the Greenfield City Council chose its president by secret ballot, an action strictly prohibited by Indiana Open Door Law.

Last fall, the Greenfield Board of Works and Public Safety ruled on multiple motions behind closed doors during a police officer’s termination hearing. Indiana law clearly states all votes on official matters must be taken in front of the public.

For decades, the Hancock County Board of Zoning Appeals routinely recorded votes on paper ballots but did not read those votes aloud if the decision was not unanimous.

Votes were recorded and tucked in a file, requiring even those who attended the meeting to later make a special trip to the courthouse annex if they wished to learn how the board members had voted.

Those are recent examples of public officials violating the Open Door Law – some out of ignorance, others out of apathy for Indiana’s rules on transparency in government.

In the best-case scenarios, officials who learn of their errors take quick action to correct them.

In other cases, officials openly admit they knowingly skirted the law and say they see no harm in the violation.

More often than not, violations of the Open Door Law and its companion, the Access to Public Records Act, are not intentional, said Gerry Lanosga, president of the Indiana Coalition for Open Government, a nonprofit advocacy group based in Indianapolis.

“It’s easier for people to be cynical about government officials and think they’re all trying to hide something,” he said. “More often, I think that it’s an ignorance of what the law requires and priorities being what they are.”

When the Daily Reporter questioned the BZA’s longtime voting practices last year, board members admitted they didn’t know what was legally required of them.

There was some argument about whether the board’s longstanding practice was a blatant violation because the votes were made available later in public files.

But experts on public access said at the time that went against the spirit of the Open Door Law, which instructs public officials to give more weight to openness in deciding matters of disclosure.

The BZA agreed. Following the Daily Reporter’s inquiry, the board began reading aloud the votes in any split decision, in spite of discouragement from board attorney Gregg Morelock.

“It didn’t, really, technically, violate the Open Door Law, but maybe there’s a better practice,” Morelock said. “I’m only concerned about a technical violation. A person sitting out in the public may not know that they can access that ballot. If they ask for it, they can always get it, and that’s the part of public access that we complied with.”

In the case of the city council’s secret ballot, city attorney Tom Billings recommended that members of the council take a second vote, at their next meeting, to approve the appointment of the president.

While that technically remedied the first improper vote, it still concealed who originally voted for whom.

At the close of its most recent session, the Indiana General Assembly passed legislation that could result in fines being levied against officials who willfully violate public access laws.

Billings said he knew from the outset that state law prohibits voting by secret ballot but didn’t think the occasion merited his speaking up to educate the new council members.

“I didn’t think that was any big deal,” he said. “We would never do anything of any substantive nature by secret ballot – never.”

Openness in government frequently arises as a campaign issue, with each candidate promising to allow the public more access to the inner workings of the office.

It doesn’t always happen as promised, though some efforts have been more valiant than others.

Complicating matters somewhat is the vague nature of many of the statutes officials are required to follow.

Morelock, who served as the city attorney from 2008-2011, has been at the forefront of multiple debates about the public’s right to know.

Under former Mayor Brad DeReamer, Morelock regularly advised public officials to remain mum on topics involving employee discipline.

The Open Door Law calls for the release of a “factual basis” for any public employee’s suspension, demotion or termination, but the term “factual basis” is not strictly defined.

As a result, in some cases, a detailed reason for an officer’s discipline was provided, and in other instances, no specific information was disclosed.

Part of the reason why, Morelock said, was to protect the city from a potential lawsuit from a disgraced employee.

Also, an employee who was suspended – not fired – should be able to come back to work without fear of reprisal, he said.

“There are policy considerations and legal considerations beyond just the transparency and the public’s right to know,” Morelock said. “It’s an attempt to balance those. Certainly, I was on the more conservative end. It is, to some degree, a gray area.”

Morelock’s stand on the issue was supported by DeReamer, who was frequently quoted as saying he was in favor of transparency except in cases involving city employees facing disciplinary action.

Subjecting an employee to public scrutiny, he argued, was an invasion of his or her privacy, even if the conduct in question occurred on the clock and involved the public interest.

“When I terminated an employee, it was for cause but not for the public to know,” DeReamer said. “The employee needs to get on with his life, be able to obtain another job and support his family.”

Newly elected Mayor Dick Pasco disagreed with DeReamer’s view, saying any incident, good or bad, that occurs on city time is a matter of public concern.

“I’m not worried about embarrassing an employee that does something that embarrasses themselves,” Pasco said. “Just follow the rules. It’s not that hard. If you don’t, then, fair’s fair.”

When a local firefighter was recently facing disciplinary action, Pasco provided documentation of the complaint against the firefighter and recommended that his hearing be open to the public.

In a similar situation late last year, the board of works – of which DeReamer was a member – voted unanimously to close the meeting of a police officer facing termination, despite that officer’s request that the public be permitted to hear testimony.

Restructuring the board of works was one of Pasco’s first moves upon taking office in January. While he still sits on the board as mayor, he increased the number of members from three to five.

That ensures not only a wealth of opinions on issues of public concern, Pasco said, but prohibits a quorum from being formed when two members run into one another at an event and talk about matters coming before the board.

The majority of any board – which in years past was just two out of three for the board of works – cannot legally discuss public business in private.

With five members on the board, two members can now speak privately without being in violation of the Open Door Law.

Government openness has historically been undervalued in Hancock County, Pasco said.

He added that a lack of transparency on the part of public officials, whether by voting secretly or holding closed-door meetings, has resulted in voter apathy. It’s not unusual for example, for governing boards in Hancock County – from school boards to town councils – to hold important votes with virtually no debate first. That raises questions about whether discussion is taking place among members outside their public meetings.

“If people think everybody’s pre-determined, why would they take the time to come (to meetings)?” he said. “I think the taxpayers absolutely have a right to know anything that involves their taxes.”

The public’s understanding of government goings-on is something Pasco says he hopes to bolster over the next four years.

In order for citizens to make educated choices about their leaders, they have to feel welcome to participate in public proceedings and know their voices will be heard if they have concerns, Pasco said.

“I think that’s the way government should work,” he said. “That’s how we’re going to do business.”

Related Stories:
• Laws strive to ensure government is open to those it serves
• EDITORIAL: Shining light on cause of government transparency
• EDITORIAL: Transparency and sunlight
• Indiana earns top grade for state government transparency
• Public access: Getting the word out
• Openness begins with local officeholders

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Editor, John C. DePrez Jr.; Executive Editor, Carol Rogers; Publishers: IBRC and IAR

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