The Indiana Public Access Counselor found Shelby County Commissioners in violation of the Indiana Open Door Law after a formal complaint was filed.

The complaint was made after the Commissioners voted in September to mandate masks in county buildings and all Shelby County schools.

Public Access Counselor Luke Britt wrote in his decision that the Commissioners violated the Open Door Law based on the fact that all three members attended a conference call with local stakeholders, including other public officials.

The Sept. 5, 2021 meeting was coordinated by MHP Medical Center to discuss the response to the local COVID-19 outbreak.

Following that meeting, the Commissioners voted 2-1 to adopt a resolution mandating masks during their Sept. 13 weekly meeting. The mandate began at the following morning.

The following day, a complaint was filed by Natalie Coffey claiming the board violated the Open Door Law. Coffey contended that it violated the law by holding an improper executive session before it adopted the resolution, according to the ruling released by the Public Access Counselor. In the complaint, Coffey said the board participated in improper ex carte communication with the mayor’s office, the Shelby County Health Department and other officials.

She based her complaint, at least in part, on comments made by other officials to local newspapers about the mask mandate, according to the ruling. And she argued that comments made by Mayor Tom DeBaun and the Shelby County Health Department indicated the mandate had been secretly planned for awhile.

On. Oct. 12, the Commissioners filed a response, denying those allegations. They acknowledged that all three participated in the conference call, which was meant to provide an update on the COVID-19 outbreak in the county and how it was affecting the community, in particular the hospital.

During that meeting, MHP and county health department representatives discussed their recommendations to stakeholders.

However, the Commissioners said they took no action during that meeting.

The Commissioners went onto say they did not discuss or act on the mask mandate resolution until the Sept. 13 public meeting, according to Britt’s decision.

During the Sept. 13 meeting, the Shelby County Health Department presented a Public Health Order, which the Commissioners adopted.

In his decision, Britt wrote that Coffey did not provide additional evidence beyond the media accounts to support her complaint. But he added that he did not agree with the Commissioners’ assertion that they were not in violation because they participated on an individual basis.

“For purposes of the ODL (Open Door Law), when the majority of a governing body (i.e. two or more commissioners) gather for purposes of taking official action on public business, it constitutes a meeting,” he wrote. “Meetings must be open to the public unless an exception applies under the law.”

He went on to write that while the Commissioners contended they took no action on any of the discussed items or recommendations, they should remember the Open Door Law includes actions such as receiving information and deliberating.

The discussion would not qualify as an administrative function meeting because what they discussed was “well beyond the routine, operational and day-to-day issues facing a county executive,” he wrote.

He also wrote that the Commissioners could have sent one delegate to observe or participate for a brainstorming or listening session, which would not have been a violation of the Open Door Law.

“During these emergent, trying times, it is all the more imperative that the public is privy to the conversations that lead up to decisions affecting them directly,” Britt wrote. “While the later discussion and ratification of the mandate at a later public meeting is somewhat of a salve, the damage had already been done in fostering suspicion, regardless of intention.”

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