In an informal opinion, Indiana’s public access counselor says it appears the elementary consolidation committee that recommended the closure/repurposing of Meadows Elementary was subject to the Indiana Open Door Law.

If so, and the district failed to provide notice of those meetings, the district violated the Indiana Open Door meetings law.

The Vigo County School Corp. maintains it did not violate the Open Door Law.

Meadows parent Kyle Kershaw requested an opinion from the public access counselor.

In the informal opinion, Indiana Public Access Counselor Luke Britt writes, “The task force appears to be a direct offshoot of the School Board. If so, there can be no question that the task force is a governing body subject to the Open Door Law. Therefore, to the extent the task force meets behind closed doors without the requisite notice being posted, it will be violating the Open Door Law.”

Britt also states, “As an aside, these types of governing-by-proxy arrangements have always been a great curiosity to this office. Not that they exist — delegation of responsibility is not inherently a bad thing — but rather the legal liberties agencies take to keep them secret. This is especially true for committees who discuss controversial subject matters. The secrecy does nothing but invite more suspicion and scrutiny.”

The point of open meetings is to keep the public informed, Britt stated.

“But it has a dual purpose. Those who serve on boards can use public meetings as a platform to demonstrate that a task force’s work is positively benefitting the public, the right people make up the task force, and to communicate that the task force is thoughtfully deliberating the issues at hand,” he wrote. “To do otherwise is usually indictive of poor governance and a disregard of the community it serves.”

At Monday’s school board meeting, Jon Mayes, school board counsel and attorney with Bose, McKinney and Evans, was asked to address the issue.

Mayes said the public access counselor’s informal opinion “assumes some facts that are not true.” Committees the school board creates for input to the board are subject to Open Door, he said.

Other committees or task forces created to provide input directly to the superintendent and administration “are not subject to the Open Door law,” Mayes said. Their work may generate a recommendation that the superintendent takes to the board.

Mayes further clarified Tuesday that “because the committee was appointed by Dr. Haworth (or his designee, Dr. Fenton) and gave the administration team guidance, the Open Door Law does not consider that committee to be a ‘governing body.’ The board of school trustees did not appoint committee members.”

But Britt stated in an email, “Based on the way the law is written, both a school board or the administration can create a governing body that is subject to the Open Door Law. It’s fact-specific and depends on a number of factors but the ODL contemplates either. That’s often overlooked because only the school board committee statute has been litigated.”

The informal opinion examined whether an advisory committee established by a school board is subject to the Open Door Law, and if so, whether the committee’s closed meetings constitute a violation of the law.

Based on information provided to him through Kershaw’s inquiry, Britt states at the start of 2020 the Vigo County School Board approved a strategic plan that called for the creation of a task force comprised of teachers, administrators, staff and citizens to identify a consolidation plan. Beginning in late 2020, this task force was mentioned during various school board meetings.

At one point, the superintendent described the purpose of the task force as helping with decisions regarding closing of buildings in the district and that the board authorized the establishment of the group.

While the task force was established by the school board, “You assert that their meetings were closed to the public, notice for those meetings was never posted, and committee members were apparently warned to not disclose what was discussed in the meetings,” Britt wrote. “Furthermore, when you requested copies of meeting minutes you were told that none existed.”

Britt pointed to two components of the law that impact the committee, including if the committee is appointed by the governing body to take official action on public business. Also, official action can include receiving information, deliberating and making recommendations.

Also, “Identifying a consolidation plan certainly qualifies as taking official action on the school’s public business,” Britt writes.

The Open Door Law requires the governing body of a public agency to conduct and take official action openly, unless otherwise expressly provided by statute, so the people may be fully informed, according to the informal opinion.

As a result, the law requires all meetings of the governing bodies of public agencies to be open at all times to allow members of the public to observe and record the proceedings.

The Vigo County School Corp. is a public agency for purposes of the ODL. The boards councils, and commissions of the school are governing bodies for purposes of the ODL.

“So, unless an exception applies, all meetings of these governing bodies must be open at all times to allow members of the public to observe and record,” Britt writes.

Just prior to Monday’s school board meeting, Meadows parent Brian C. Payne said that because of the issue raised, he believed the board should vote no on any recommendation to close the school.

“Credible transparency issues have been raised about how this administration has opted to make the decisions to save costs through closing elementary schools. VCSC has made an example of how NOT to openly operate a committee,” he wrote.

Several Meadows parents intend to file a formal complaint with the state public access counselor, Payne said.
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