The Indiana Public Access Counselor says that the Marion Common Council violated the Open Door Law as it worked to hire outside counsel to help them draft two pending ordinances that would change the way the city pays claims.
The complainant, Linda Wilk, accused the Council, in a formal complaint, of violating the Indiana Open Door Law, which requires public agencies to conduct and take official action openly, unless otherwise expressly provided by statute, so that people may be fully informed.
“It is the opinion of this office,” Luke Britt wrote in his official response, “that the Marion Common Council violated the Open Door Law by meeting in executive session for an unauthorized purpose and by providing defective public notice for the executive session.”
On April 19, the Council met in executive session at 6 p.m. followed by a regular public meeting an hour later.
During the public meeting, the Council voted to retain the law firm of Taft Stettinius & Hollister as outside legal counsel to assist the Council in making changes to Marion’s process for paying claims.
Wilk – a member of the city’s Board of Public Works and Safety, which currently approves the city’s claims – asserted that the Council’s executive session to discuss hiring the law firm was improper under the Open Door Law.
Additionally, Wilk contended in her complaint that, on March 31, the Council received a letter from Taft Stettinius & Hollister thanking the Council for retaining the firm. Based on the date of letter, Wilk said she believes the the Council took official action outside of a public meeting by deciding which firm to hire.
Council President Brian Cowgill submitted an answer to Wilk’s complaint on May 19. Cowgill confirmed that the Council held an executive session on April 19 to discuss hiring outside counsel in accordance with Indiana Code.
However, he asserted that no action was taken during the Council’s executive session, and the Council discussed the issue during the regular public meeting that night before voting on the issue.
Britt’s office said Cowgill included minutes from the Council’s public meeting to support his claim. He also contended that the March 31 letter from the law firm was merely a proposal, which the Council approved at the meeting.
The Open Door Law requires all meetings of governing bodies of public agencies to be open at all times to allow members of the public to observe and record the proceedings.
“Indeed, the law allows some latitude to a governing body to meet behind closed doors about certain subjects,” Britt wrote. “At the same time, the public is entitled to specific notice as to why.”
Wilk contended that, in part, the Council should not have addressed that subject in executive session.
The Council argued that an Indiana Code authorized the executive session. The statute referenced by the Council authorizes a governing body to meet in executive session to receive information about and interview prospective employees.
“The Council’s argument is problematic because the executive session did not involve interviewing a prospective city employee.” Britt wrote. “Instead, the executive session involved an interview with an independent contractor, which is not authorized by the Open Door Law for executive session.”
Additionally, Open Door Law requires a public notice of executive sessions including the time, date, location, subject matter and reason for the private meeting.
While the notice for the executive session included the time, date and location for the meeting, the subject and reasoning were insufficiently addressed, merely stating, “The purpose of this meeting is to consider hiring outside counsel.”
Britt said that the public notice is defective for two reasons. First, the Open Door Law does not authorize an executive session to consider hiring outside legal counsel. Second, the notice does not reference the specific statute authorizing the meeting.
“Granted, the Council referenced the statute authorizing an executive session to receive information about and interview prospective employees.” Britt wrote, “that statute does not cover interviews with an independent contractor.”
“In other words, even if the Council referenced it on the public notice – which it didn’t – the notice would not be sufficient under the Open Door Law.”
Regarding the letter from Taft Stettinius & Hollister, Britt’s office could not reach a definitive conclusion about what the letter meant in the context of the Open Door Law as neither party filed a copy of the March 31 correspondence.
“Inferentially,” Britt wrote, “it looks problematic. If the Council’s public vote on retaining outside legal counsel was merely a performative act for something the Council already approved in secret, then the Council meandered outside the confines of the law both in letter and in spirit.”
“This office encourages the Council to remain mindful of the requirements of the Open Door Law going forward,” he wrote in closing. “Moreover, the Council should adjust its approach to executive sessions consistent with this opinion.”
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