Henry County officials have again broken state rules on government transparency, according to Indiana Public Access Counselor Luke Britt.

Britt’s formal opinion is that the Henry County Planning Commission violated Indiana’s Open Door Law during the planning commission’s Oct. 7, 2021 executive session.

During that closed meeting, the Henry County Planning Commission voted to hire a new Zoning Administrator.

Emails between planning commission members outline discussion about the applicant, Cody Lewis, and the board’s vote to offer him the position. Lewis ultimately turned the job down.

Government watchdog Kris Bilbrey filed a formal complaint with the Public Access Counselor on Oct. 21, the day of the October public meeting of the Henry County Planning Commission.

The planning commission’s attorney, Sean Row, replied to the complaint in a Nov. 16 letter that “no ‘final action’ as described in Indiana Open Door Law took place at the executive session held on October 7, 2021 and, thus, no violation occurred. Further, as the Applicant withdrew from consideration prior to the next meeting and prior to any hiring process being completed, Henry County Planning Commission further asserts that this complaint is moot.”

Britt issued his formal opinion Jan. 28 that the Henry County Planning Commission broke the law when it voted and made a job offer outside of a public meeting and that it also did not follow proper public notice procedures about the executive session.

Violation explanation

The Indiana Open Door Law is officially Indiana Code 5-14-1.5.

The intent of the Open Door Law is that “the official action of public agencies be conducted and taken openly, unless otherwise expressly provided by statute, in order that the people may be fully informed.”

Because the Henry County Planning Commission falls under the rules of the ODL, its meetings must be open at all times to allow members of the public to observe and record, with specific exceptions.

The Open Door Law allows government boards like the planning commission to meet in closed executive sessions. There is a specific list of acceptable reasons for an executive session listed in the law under section 6.1.

The ODL requires that public notices for a closed executive session state the reason for the meeting with specific reference to the listed accepted instances in the law itself.

The Henry County Planning Commission posted notice for their Oct. 7 executive session on Oct. 5 with the purpose “Discussion of personnel issues.”

“‘Discussion of Personnel Matters’ is not an appropriate justification for an executive session,” Britt stated in his formal opinion. “In this case, the proper justification would have likely been to receive information about and interview prospective employees in accordance with Indiana Code section 5-14-1.5-6.1(b)(5).

“Insofar as decision making is concerned, it is the opinion of this office that a preferred candidate can be identified – the Open Door Law allows for some preliminary decision-making in executive session. A vote on a final employment offer, however, should not happen until a subsequent public meeting,” Britt continued. “Emails submitted by Bilbrey written by a planning commission member indicate a vote was planned and actually taken at an executive session. This is a blatant violation of the Open Door Law.”

Britt said the closed door vote was a violation of Indiana’s Open Door Law regardless of the fact that Lewis did not accept the job offer.

“The Commission should be mindful of this going forward because the Open Door Law prohibits final action in executive session,” Britt stated, citing Indiana code section 5-14-1.5-6.1(c).

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