Open Door Bedevils Commissioners Administrative Work Can’t Edge Into Policy

The (Fort Wayne) Journal Gazette — Indiana’s Open Door Law says elected officials have to make their decisions in a forum where the public can see what’s happening. But what happens when the officials are county commissioners, who have to run the day-to-day operations of a county and often have to make quick, spontaneous decisions? Some government watchdog groups argue citizens are locked out of their own government process. County officials believe they are well within the law and wouldn’t violate the public trust anyway.

 

Open Door bedevils commissioners Administrative work can’t edge into policy

The Journal Gazette
By Dan Stockman

(March 7, 2004) Indiana’s Open Door Law says elected officials have to make their decisions in a forum where the public can see what’s happening.

But what happens when the officials are county commissioners, who have to run the day-to-day operations of a county and often have to make quick, spontaneous decisions?

Some government watchdog groups argue citizens are locked out of their own government process. County officials believe they are well within the law and wouldn’t violate the public trust anyway.

What both groups agree on is Indiana’s form of county government makes it nearly impossible to fully comply with the state’s Open Door Law.

“It’s an anachronism. It’s outdated, and it needs to be changed,” said Marian Pearcy, president of the Indiana Coalition for Open Government.

Public access to government is vital because citizens cannot run their democracy if they cannot see what is happening. Without access, for example, Allen County’s upcoming decision on charging septic tank owners annual fees and requiring annual inspections could be made in secret. Debate on future tax increases could be raised and settled in private.

But the idea of transparent government runs smack into the county commissioners’ office, which creates a county executive of three elected people — Linda Bloom, Marla Irving and Ed Rousseau in Allen County. In addition to their legislative duties, they run the day- to-day operations of the county, like a three-person mayor’s office would run a city.

But the state’s Open Door Law requires that elected officials decide things at forums open to the public; to enforce that idea, the law demands public notice 48 hours before a meeting so people can attend.

Under the law’s definition of a meeting, any time two commissioners talk about county business they could be having a “meeting,” where notice would be required.

That could make any time the commissioners are in their offices a meeting, and keeping up with the notice requirements would make day- to-day business almost impossible.

“You can’t work in that close of quarters and not talk,” Irving said. “I don’t know how you would function daily without having to talk to someone.”

Rebecca Daugherty said the problem is not the Open Door Law. Daugherty is the Freedom of Information Service Center Director for the Reporters Committee for Freedom of the Press, an Arlington, Va.,- based advocacy group.

“If citizens are going to exercise any oversight over what their governors do, they have to be able to know what they do,” Daugherty said. “You gotta watch these people.”

The question is not a new one. County officials and reporters have wrestled with it for years, and courts have been weighing in since at least 1986. Indiana law does provide an escape clause for county commissioners, noting that meetings for “administrative functions” are exempt from the notice requirements.

But some counties, including Allen County, have tried to go further in protecting themselves from the notice requirements by declaring they meet “in continuous session.”

Under that theory, the commissioners give notice once at the beginning of the year that they will be meeting whenever the office is open. The yearlong meeting theoretically never ends, and the notice requirement has theoretically been met.

The Allen County commissioners passed their annual notice that they meet in “continuous session” at their first meeting of the year, Jan. 7, saying they are always meeting “at all times during 2004 when the offices of the Board of Commissioners are open to the public.”

But the state’s public access counselor has twice ruled that state law does not allow county commissioners to meet that way.

In October 1998 and again in March 2000, the office issued opinions saying the practice is prohibited. In one case, it ruled the meeting in question was legal, even if its defense didn’t hold up, because it dealt only with administrative functions exempt from the Open Door Law. The other meeting it declared a violation.

“The Commissioners … do not meet in continuous session as contemplated under Indiana Code,” the opinion said.

Even the administrative meetings that don’t require notice “must still be open for the public to attend and observe them,” the opinion said.

Allen County Attorney Bill Fishering, however, said the “continuous session” statement simply gives the county more protection under the Open Door Law.

He dismissed the public access counselor statements.

“I’ve not read their opinions,” Fishering said. “I haven’t seen a court opinion that says I can’t meet in continuous session.”

Not everyone is convinced.

“Allen County needs to have a letter sent to the public access counselor and they’ll have to respond,” Pearcy said.

She said there is no question the ruling would go against Allen County.

Even the escape clause for county commissioners creates problems, Pearcy said, because there is no way to ensure commissioners are confining their discussions to administrative functions and not making decisions on policy.

But commissioners say they know the law and do not overstep the guidelines.

“We’ve been real good about that,” Rousseau said. “It’s always on top of my mind not to be fooling around. … We’ve operated under these rules for quite some time, and I take it seriously.”

Fishering said the practice began nearly 20 years ago. Since then, the law was changed to say the notice requirements do not apply to county executives if the meetings are conducted “solely to receive information or recommendations in order to carry out administrative functions, to carry out administrative functions, or confer with staff members on matters relating to the internal management of the unit.”

The only other guidance it gives is a warning that administrative functions do not include the awarding of contracts, entering into contracts or anything else that would bind a county.

“We don’t do any official business without the proper notification,” Irving said. “I don’t ever remember a time when we have stepped over our bounds on that. … I think we’re pretty careful.” Daugherty said the issue is that citizens need to know what their government is up to. “If they aren’t notified as to what the commission is doing, they can’t make that choice as to whether they have an interest or not,” she said. “If no one shows up, fine.”