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Thursday, February 15, 2007

Ind. Gov't. - "Madison council violated law: Closed meeting rules improper"

Several Indiana papers this morning are running an AP story reporting on an opinion of the Indiana Public Access Counseler. Here is the opinion, dated Feb. 7, 2007, and headed Formal Complaint 07-FC-4; Alleged Violation of the Open Door Law by the Madison Common Council and Mayor.

From the story:

MADISON, Ind. -- The state public access counselor says the Madison City Council violated the Open Door Law when it held an emergency meeting to buy land for an industrial park.

But Mayor Al Huntington said the decision was prompted by the need to move fast or lose the deal.

Huntington said the meeting was called after the seller threatened to raise the price if the city didn't close on the 62 acres by the end of the year. Facing the deadline, Huntington scheduled a meeting on Dec. 31 to finalize the deal.

"If we didn't move fast, then we could possibly not buy the property for the right price, which means it could have been costly to the city," the mayor said.

Hanover resident Warren Auxier filed a complaint with Indiana Public Access Counselor Karen Davis.

He said that Madison did not provide the required 48-hour notice and that the meeting did not meet the definition of an emergency, which is not subject to the notice.

The complaint also contended that the City Council should not have had a meeting behind closed doors to discuss strategy because the council had already executed an agreement to purchase the property.

City Attorney Rob Barlow denied that an agreement was in place before the closed meeting.

Davis agreed with Auxier on all three allegations. She noted that "it is difficult to ignore the impression that the city is taking inconsistent positions."

"How could the city lose the 'benefit of its bargain' if no bargain has been struck at the time that the city convened" the closed meeting, Davis asked in her written opinion.

It appears that the Public Access Counseler's website is being updated more frequently. The most recent official advisory opinion posted today is: 07-FC-9; Alleged Violation of the Open Door Law by the Centerville Center Township Public Library Board of Trustees. It is dated Feb. 12th.

It involves the issues including whether the library may may require individuals attending the meeting to sign-in, whether adequate space should be provided for the public to observe the meeting, and whether tape recorders may be prohibited. Some quotes from the opinion:

There are no provisions in the Open Door Law for a sign up sheet, but sign up sheets are not prohibited. If a person wishing to attend a meeting prefers to not sign a sheet indicating attendance, the person may not be denied access to the meeting. Your complaint does not allege that anyone was asked to leave, but you allege that members of the public were told by someone not a member of the Board that the sign up sheet was mandatory. The Board denies that the public was told it must sign the sheet. A voluntary sign up sheet may be used so long as the public is informed that signing up is not mandatory in order to attend the meeting. Requiring that a person who wishes to address the Board during the meeting sign up in advance or at the meeting does not violate the Open Door Law, since the Open Door Law does not provide the public with a right to speak during a meeting, only to observe and record the meeting.

A governing body should provide adequate room for the public to observe and record a meeting. If attendance at a meeting is unanticipated or is greater than normal, it is not per se a violation of the Open Door Law to not be able to accommodate every single person who wishes to observe a meeting. However, now that attendance at meetings has been higher than usual, the Board should make every effort to try to accommodate those who wish to attend. We have said that having an overflow area with a visual or auditory means for observing the meeting is sufficient to accommodate unexpected attendance. The Board has said that it will no longer use its small Board room, but will use the largest room in the Library for meetings in the future.

Because the Open Door Law specifically provides that the public has the right to record a meeting, a governing body may not ban the use of tape recorders. Because a meeting is a gathering of the governing body, it is essential that members of the public be allowed to record what the Board is saying. The Board denies that you were told you could not tape record the December 13 meeting. If the Board told you that you could not tape record the meeting yourself because the Board was recording the meeting, this would have been a violation of the Open Door Law.

Posted by Marcia Oddi on February 15, 2007 08:31 AM
Posted to Indiana Government