Gard Column

  SEA 103:  Serial Meetings and Public Access Issues

            “If at first you don’t succeed, try, try again”

 

            “The third time is the charm” 

 

Both of these clichés apply to my efforts to pass legislation to address the proliferation of serial meeting and other public access issues.

 

As a former city council member I have often seen how local officials use a loophole to avoid the intent of the open door law which is to do public business in view of the public.  In addition to units of local government, serial meetings have been used by entities such as the Indiana University Board of Trustees, the White River State Park Commission and local school boards

 

In 2005 and again in 2006 I introduced legislation to prohibit the use of serial meetings as well as spell out who can and who cannot use telephone or the Internet to participate and vote in an official meeting.  The Indiana Senate passed the legislation by a 49-0 vote in 2005 and 48-2 the next year.  Both years the House of Representatives refused to give the legislation a committee hearing, thus killing the bill.

 

Finally in this 2007 session, with the help of the Hoosier State Press Association (HSPA), we found a House member, Rep. Russ Stilwell (D-Booneville), interested in passing the bill.  In fact, he introduced a similar bill but in the end we decided to work with SB 103.

 

By far the most difficult part of the legislation to draft was the serial meeting provisions.  With the goal of making sure that public business is done in view of the public, we recognize that local elected officials often work, socialize and live together and cannot be restrained from casual conversation and often being in social situations where there is communication between officials.

 

Serial meetings could be described as “mini-meetings” in person or by electronic means within a seven-day period on the same subject.  While each “mini-meeting” would have less than a quorum, the total of participants in a series of “mini-meetings” could represent a quorum of the governing body.  This will now be a violation of law.

 

In trying to avoid unintended consequences with the legislation, Rep. Stilwell, the HSPA’s Steve Key and I had countless hours of discussions with individuals representing the interests of local government.  In the end we did not have opposition from the Association of Indiana Counties, the state funded universities, the Schools Boards Association and other interest groups.  The only local government organization that never came on board was the Indiana Association of Cities and Towns.  At every turn in the discussion, up until the very end, they continued to bring up new objections.

 

Important exemptions from constituting a serial meeting gathering for the governing body of a public agency include:

n      a social or chance gathering;

n      on-site inspections of a project, program or facilities;

n      traveling to and from meeting; and

n      a gathering to discuss an economic development prospect that does not include decision, recommendations or final action on financing and incentives.

 

This year, for some reason, legislators were much more critical in their work on the bill during committee hearings in the Senate.  To address a ground swell of concern by economic development directors over the unintended consequences for economic development, limited exceptions for some local economic development organizations (LEDOs) were carved out.  If a LEDO has a contract with a public agency to provide economic development services for them, the LEDO is exempt from the Open Door Law.  Final offers of financial incentives to be paid by a governing body must be made available to the public.  While governing bodies may negotiate with economic development prospects in executive session, offers of incentives must be made and decided in a public meeting.

 

The second part of the legislation was far less controversial than the serial meeting provisions.  I feel strongly that technology is no substitute for an elected official’s actual presence at a local public meeting.  Our laws have not been able to keep up with the advances in technology and its use as a substitute for being physically present at meetings of governing bodies.

 

The legislation states that unless statutory authorization is expressly given, a member of a governing body who is not physically present may not vote by electronic means on final actions taken at that meeting.  While a member of the body may participate in discussion electronically, that individual cannot be counted as present at the meeting and it must be noted in the memoranda of the meeting that the individual participated by electronic means.

 

Legislators recognized that there are some public bodies that because of the nature of the bodies’ responsibilities and that some members live far apart geographically, electronic participation is acceptable in some circumstances.  There are specific criteria for these meetings.

 

Exceptions to electronic participation were made for:

n      a board of trustees from a state university in some situations

n      the governing body of the Indiana Municipal Power Agency under some situations

n      a board, committee or commission administered by the Indiana professional licensing agency

 

Senate Enrolled Act 103 is comprehensive and is a huge step forward in making sure that loopholes in Indiana’s Open Door Law are closed and that public business is done in view of the public. Over the three years that this legislation was considered legislators became more engaged in scrutinizing the provisions to make sure that it would not result in unintended consequences.  Negotiations were constructive and the assistance of both Rep. Stilwell and Steve Key was crucial in passing the legislation.