A 1980 article in the Valparaiso University Law Review states that the political party caucus exemption in the Open Door Law (ODL) here in the state of Indiana is “a major potential weakness in the act, and is virtually impossible to police.”
The same article mentions that there have been few problems with the caucus at the local level, either because it is not abused or else is used discretely enough to avoid criticism.
At lot has happened since 1980. But the law review article also mentions, as a point of curiosity, that up to that point there had been “few complaints by the press.”
Consider this column to be a complaint by the press.
Here’s the complaint in a nutshell. I believe the lack of public discussion, for over a month, by Bloomington’s city council about a proposed local income tax increase could be due to the council’s use of the caucus exception in the ODL. And I think that’s plausible, because I know for a fact that the council used the caucus exception to deliberate on its choice of officers at the start of the year.
Here’s the complaint in more detail.
On Jan. 1, Bloomington’s mayor, John Hamilton, sparked a lot of community discussion when he announced that he wanted to see another 0.5 percent added to the countywide local income tax. He proposed using Bloomington’s roughly $8-million annual share to pay for climate action initiatives.
It’s the city council, not the mayor, that has to enact the local income tax increase.
But in better than a month that’s elapsed since the mayor’s announcement, Bloomington’s city council hasn’t deliberated on the issue. The topic has not appeared on a regular meeting agenda. Nor has it appeared on a work session agenda.
No councilmember has used their report time at the start of meetings to talk about work they might be doing on the income tax proposal—individually or in collaboration with other councilmembers.
That’s remarkable, given the timeframe that was sketched out in the mayor’s New Year’s Day speech: 100 days to form a “green ribbon” panel; and six months for the city council to enact the income tax.
In contrast, the city council’s counterpart in Monroe County government, the county council, discussed the local income tax at its first meeting of the year.
Here’s one key takeaway from the county council’s discussion: County councilors are not remotely interested in being the governmental entity that puts forward the necessary ordinance to enact a higher income tax.
That was not a surprise, because 58 of the 100 votes on the tax council are controlled by Bloomington. So it makes sense that it would be Bloomington’s city council, as opposed to governing bodies in Monroe County or Ellettsville, that initiates the required ordinance.
Why haven’t we heard anything from Bloomington’s city council at its public meetings about the possible increase to the income tax? The only passing reference I’ve heard to the possible tax increase at a public meeting was from councilmember Isabel Piedmont-Smith at the first meeting of the year, on Jan. 8.
In some brief remarks on her expectations for the year, Piedmont-Smith mentioned that she was looking forward to working in collaboration with the mayor and others on the local income tax proposal.
One possible explanation for the silence: Bloomington’s city council has been discussing the local income tax in closed caucus gatherings, shielded from public view, instead of at its public meetings.
I think that’s a plausible explanation, only because the Bloomington city council’s first decision of the year looks like it was reached somewhere different than at a public meeting—at a closed party caucus.
That decision was about its choice of officers for the coming year—president, vice president, and parliamentarian. The decision was: Steve Volan as president; Jim Sims as vice president; and Isabel Piedmont-Smith as parliamentarian.
A public vote was taken on the officers at the council’s first meeting of the year, on Jan. 8. The way the public vote was handled, as well as councilmember responses to my questions about it after the meeting, would lead a clear-thinking person to conclude the council had reached a decision about its officers for the coming year before the public vote was taken on Jan. 8.
The way the Jan. 8 vote was conducted was by itself enough to raise suspicion, that surely the decision must have been made beforehand. It appears to be merely the ceremonial affirmation of a decision already made. The CATS video of the city council’s Jan. 8 meeting shows that the entire transaction, over which last year’s president Dave Rollo presided, took around 40 seconds. It concluded in a unanimous voice vote.
It’s hard to escape the conclusion that the vote was not pre-wired, with every element scripted, down to the person who would make the motion to approve the slate of officers, and who would second the motion.
It was councilmember Sue Sgambelluri who moved the slate of officers, by reading aloud from a sheet of paper. I asked her immediately after the meeting where the names on the sheet came from. Her response to that question, and a couple of followups, included several points: The names on the slate came from a discussion held in a “caucus” on Jan. 2, attended by all councilmembers, in the back room of Crazy Horse, a downtown Bloomington restaurant.
Sgambelluri described how councilmembers Steve Volan and Jim Sims each presented their visions for priorities and values that would guide the council’s work this year. Other councilmembers then expressed preferences for the visions of the two councilmembers who wanted to serve as president.
Asked to confirm that a decision had been reached as a result of the caucus procedure, both Sgambelluri and Volan, whom I asked a few minutes later, denied that the Crazy Horse backroom deliberations meant the council reached a decision on its officers at the caucus.
I disagree with Volan and Sgambelluri—but I’m at a severe disadvantage in any argument, because I did not attend the closed, backroom meeting. Still, I think any reasonable understanding of what it means to “reach a decision” fits Sgambelluri’s description of what the city council did at its caucus gathering on Jan. 2.
I think the expression of a preference by every councilmember for one candidate’s vision or another’s should be correctly analyzed as nothing more than a kind of private voting scheme, a process that councilmembers have apparently convinced themselves was not a vote.
Whatever label councilmembers want to put on it, the caucus process allowed someone at its conclusion to write down names, which happened to reflect exactly the unanimous will of the council on Jan. 8—even while the will of the council had not been unanimous at the start of the caucus. I don’t think it’s even a close call: The procedure Sgambelluri described was a private vote, the outcome of which councilmembers respected at their public vote.
What’s the big deal? What about the exception for partisan caucuses in the Open Door Law? In short, yes, the caucus exception is potentially applicable, but not always.
Indiana’s ODL defines a caucus as a gathering of members of a single political party, “which is held for purposes of planning political strategy and holding discussions designed to prepare the members for taking official action.”
All nine city councilmembers in Bloomington were elected as Democrats. So the entire council can gather under the ODL’s caucus exemption, as long as they stay within the confines of the law, which turn out to be pretty generous.
But not even the ODL’s exception for caucuses, like the one held in the back room of Crazy Horse, allows a group of public officials to reach a decision during the caucus.
In a frequently cited Indiana Supreme Court case, Evansville Courier v. Willner (1990), the court affirmed a key part of the lower court’s ruling. The Supreme Court affirmed that when a governmental body reaches a decision at some gathering, even if no formal vote is taken, then the reaching of that decision is correctly analyzed as an official action under the ODL, which means the gathering is a meeting, and cannot be closed under the ODL’s caucus exemption.
It disturbs me that the city council started off the year by shielding from public view its deliberations on an important matter of public business. That should be disturbing to anyone, even someone who believes that the backroom Crazy Horse caucus didn’t violate the ODL. The fact that deliberations by the whole council on public business were shielded from public view is indisputable.
It should disturb every member of the local Bloomington press that the council tried to shield from public view the fact that it was not unified in its choice of president for the coming year. How is the press supposed to report on the deliberations of the city council if only some of them are public?
More troubling still is that Volan, when I asked him about caucus frequency, characterized such caucus gatherings as taking place as often as monthly, not necessarily on a set schedule. Sometimes the mayor attends, sometimes not, he said.
In the year I’ve lived in Bloomington, I’ve heard a lot of talk from councilmembers about how they make their work as transparent as they can.
But apparently, it’s just not true. What’s true is that they make their work as transparent as the law requires. But even that is only maybe true: It’s impossible for me, or anyone else who isn’t in the room, to confirm that the council’s conduct at a caucus gathering does not cross the line into decision making.
Making their work as transparent as they can would mean that councilmembers forgo the option to conduct deliberations behind closed doors under the caucus exemption in the ODL. Making their work as transparent as they can would mean conducting all their deliberations in public, including the kind that they’re currently conducting in caucus gatherings.
Based on a cursory review of the summaries available on the open government guide hosted by the Reporters Committee for Freedom of the Press, most states don’t even have an exemption for local caucuses in their open meetings laws. Indiana is one of just a handful.
Somehow, other local governments across the country manage to discuss their public business in public, without regular appeal to closed door caucus meetings in literal back rooms.
For example, Michigan’s law on open meetings has an exception just for caucuses of the state legislature. Maybe the Indiana General Assembly could consider eliminating the ODL’s local caucus exemption in 2021.
In the meantime, I don’t imagine I’m the only Bloomington citizen who thinks this Wednesday’s regular meeting (Feb. 5) of the Bloomington city council would be a great chance for some or all councilmembers: Give us an update on the council’s discussions about the mayor’s local income tax proposal.