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Wednesday, November 13, 2013

Ind. Gov't. - "Dismissal of Ritz’s lawsuit leaves underlying question unanswered"

Updating this ILB entry from Nov. 8th, the Fort Wayne Journal Gazette has this good editorial this morning:

Attorney General Greg Zoeller should address the question left unanswered when Glenda Ritz’s lawsuit against the Indiana State Board of Education was dismissed. If board members took official action in pursuing an end run around the state superintendent, how can they also claim not to have violated the open meetings law?

Zoeller himself should be eager to see the question resolved. He has proved himself a champion of open government. He received the Hoosier State Press Association’s annual Frank O’Bannon Sunshine Award for a ruling in a lawsuit challenging the South Bend Tribune’s right to publish an audiotape of a call to the Department of Child Services hotline. The prior restraint created by the state’s injunction would violate the newspaper’s First Amendment rights, he said, clearing the way for release of the audiotape and subsequent improvements in child protection.

On Friday, a Marion County judge ruled that only the Indiana attorney general – Zoeller – can represent an elected state official in court, dismissing the suit filed by the state superintendent charging the state board of education violated the Indiana Open Door Law. An attorney representing the state superintendent, in the hearing before the Marion County judge, noted that Ritz’s office had asked Zoeller to file the lawsuit – or to allow her to hire outside counsel – but he refused.

That leaves Hoosiers with a troubling question: Can an appointed board simply sign a letter to take official action not approved at a public meeting? If it can, what are the implications for open government?

Ed Feigenbaum, editor of Indiana Legislative Insight, points out that an attorney recently advised the Central Indiana Regional Transit Authority that its plan to issue a recommendation after receiving more information outside a meeting would not be a legal action.

A complaint related to the Ritz matter was filed with the Indiana Public Access Counselor and could address the State Board of Education case. The complaint was made by Julie Hollingsworth, a member of the Fort Wayne Community Schools board, along with Bloomington parent Cathy Fuentes-Rohwer and former superintendents Ed Eiler of Lafayette and Tony Lux of Crown Point. They allege that 10 of the State Board of Education members violated the Indiana Open Door Law “by meeting and conducting public business in secret” in drafting a letter requesting legislative leaders to pursue release of the A-F school letter grades.

“To take this official action, the individual board members would have had to consult with and receive information from one another, deliberate, make recommendations, establish policy, make decisions or take final action,” according to the complaint.

The public access counselor, Luke Britt, hasn’t yet issued an opinion. But because his office has quickly addressed recent complaints, a ruling should be available soon. His opinion, though, would simply be advisory.

Aside from the confusion of legal standing, Hoosiers need clear direction on the State Board of Education’s disputed action. Unchallenged, it invites boards and commissions across Indiana to conduct business outside public view. Zoeller has stepped up to ensure transparency and protect taxpayers from unnecessary legal costs in other cases. He should do so again.

Posted by Marcia Oddi on November 13, 2013 10:30 AM
Posted to Indiana Government