Friday, August 08, 2014
Ind. Gov't. - " Indiana Civil Rights Commission voted behind closed doors"
Kara Kenney of WRTV6 reported last evening in a story that begins:
The Indiana Civil Rights Commission, an entity dedicating to enforcing laws, has been found in violation of the Open Door Law for conducting votes behind closed doors, according to an opinion issued by a state public access counselor.ILB: Here is a copy of the August 4th PAC opinion. It concludes:
The Open Door Law requires public agencies to conduct their business openly, unless otherwise expressly provided by statute, Call 6 Investigator Kara Kenney reported.
According to an opinion issued August 6 from Indiana Public Access Counselor Luke Britt, the Indiana Civil Rights Commission violated the Open Door Law by not providing adequate notice of an executive session.
The opinion comes in response to a complaint filed by Indianapolis resident Wayne Uhl filed on July 2, who alleged ICRC commissioners take recesses to discuss cases off-the-record before voting on them.
“The transcript suggests this is a common practice of the Commissioners,” read the opinion from Britt. “The IRCC Commissioners do not have an inherent justification for holding closed door discussions about pending cases…. I do not encourage closed-door discussions (even if authorized) unless it is absolutely necessary for the protection of privacy.”
Britt said no votes or decisions are ever to be made behind closed doors as a quorum.
Because “official action” is defined so broadly by the Indiana General Assembly, virtually any discussion on matters of public business by a majority of a governing body’s members would fall under the purview of the Open Door Law. The adjudication of administrative cases before the Commission is certainly public business. As such, any closed door meetings would need to be held pursuant to Ind. Code § 5-14-1.5-6.1 as an executive session.
The ICRC Commissioners do not have an inherent justification for holding closed door discussions about pending cases. A properly noticed executive session would be required. Although they have not asserted it as an argument, Ind. Code § 5-14-1.5-6.1(b)(2)(B) authorizes executive sessions to discuss pending administrative litigation. As you have indicated in your complaint, the ultimate authorities of many public agencies hold administrative review deliberations in the open and do not take matters under advisement. I do not encourage closed-door discussions (even if authorized) unless it is absolutely necessary for the protection of privacy. In any case, a governing body as a collective may never take any final action during executive sessions. Individual members may come to a conclusive determination, but no votes or decisions are ever to be made behind closed doors as a quorum.
If appears as if the ICRC has also recognized the public’s interest in observing these deliberations and has commendably amended their practices to deliberate cases in open meetings. While it is noteworthy the ICRC is remediating the issue, a violation has indeed occurred as you describe in your complaint.
You suggest that if a matter was discussed behind closed doors, any decision arising from such a discussion is void. This is not automatically the case. A final action will only be overturned if voiding a decision is a necessary prerequisite to a substantial reconsideration of the subject matter. See Ind. Code § 5-14-1.5-7. The Public Access Counselor does not make these factual determinations and the decision to remand would only be overturned pursuant to an order from a trial court.
Posted by Marcia Oddi on August 8, 2014 09:50 AM
Posted to Indiana Government