County, city committees: Open Door Law is a numbers game

Two three-person committees were disbanded by the Monroe County council last Tuesday. One was an “executive committee” established at the start of the year.  The other was a “COVID‐19 budgetary and fiscal review committee” created at the end of March.

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A seven-member county council is a governing body under Indiana’s Open Door Law, and a three-member committee can be, too, if it’s appointed by the council  and it’s been delegated authority “to take official action upon public business.”

Councilors aren’t against the idea of subsets of Monroe County’s fiscal body working on public policy issues. But they want to avoid inadvertent violations of Indiana’s Open Door Law (ODL).

Councilors received a five-page memo, dated April 27, from the county’s legal department  with an overview of the ODL requirements and exemptions.

Last Tuesday’s vote made it about a month after the memo was issued, when the council decided to dissolve the two committees. But one member of the budgetary committee, Marty Hawk, had already resigned—around the time the memo was given to councilors.

Several new committees were established by Bloomington’s city council at the start of the year, on a 5–4 vote. It generated enough controversy that councilmembers continue even now on occasion to conduct implicit debate about the existence of standing committees, when they’re deliberating on other topics.

Do the county council’s committees pose risks for ODL violations that the Bloomington city council’s new standing committees don’t? Not inherently. But the numbers work against the county council and for the city council when it comes to ODL violations.

What’s the potential risk for a committee to violate the ODL? It depends on its size.

A three-member subset of the county council is the biggest sub-group that doesn’t amount to a quorum on the seven-member council. That means if a three-person gathering of councilors took place without providing public notice under the ODL, it wouldn’t be a problem—because such gatherings would not constitute a “meeting” of the county council.

But what if a three-member group is formally appointed as a committee by the council, and given some authority to take official action, like deliver a recommendation on which the full county council is supposed to rely for its future decision making? That committee then becomes a “governing body” under the ODL, subject to the requirement that its meetings be noticed to the public, according to the county legal department’s memo.

The risk for a three-person committee is that any two of its members make a quorum. So just two committee members getting together to talk about their committee work, without giving notice to the public, would count as a violation of the ODL.

The nine-member Bloomington city council is big enough to establish committees as large as four members, without those committees making a quorum of the whole council. The several new four-member committees of the Bloomington city council don’t risk violating the ODL, if just two councilmembers get together to deliberate on committee topics. That’s because the two of them wouldn’t make a quorum of the four-person committee.

So at last Tuesday’s meeting, county councilor Marty Hawk supported the disbanding of the three-member budget committee to which she’d been appointed, along with councilors Eric Spoonmore and Geoff McKim.

Hawk alluded to the fact that she wouldn’t be able to talk to her colleagues on the committee, without giving 48 hours notice to the public. Hawk said, “I certainly don’t want to be told, Oh, now you a part of a committee, you can’t talk to anybody. Well, I will happily resign from every committee, because I certainly don’t want to be told I can’t talk with my colleagues…”

At the county commissioners meeting held on April 29, the day after the legal department’s memo was issued, Hawk foreshadowed the county council’s action to disband the budget committee about a month later.

During public comment time to the commissioners, Hawk said, “I understand there’s some concern about whether or not there’s only three people on a budget committee or whatever. I’m willing to step down from that committee. I don’t want to be a part of a problem. I want to be a part of the success of this county, I love it, …I want the best for this county.”

This week, Hawk described to The Square Beacon her approach to work with her colleagues on budget issues, before and after the committee had been formally established, as basically the same—she would talk to her colleagues about issues of concern. After getting the legal department’s memo, she said she resigned from the budget committee.

About Tuesday’s vote, McKim said the work that the committee had been assigned to do still needs to be done. The consensus among councilors on Tuesday was a recognition that even if the committee were disbanded, the focus on COVID-19’s budget impact needs to be a priority. They agreed the work could be prioritized, even it is done at sessions attended by all seven councilors.

After Tuesday’s meeting, county council president Spoonmore told The Square Beacon that the council’s concerns with the public noticing requirements of the Open Door Law was part of the spectrum of ODL considerations that factor into how the council is “conscious of how the public expects us to do business.” It was simpler to meet that expectation by disbanding the committees, Spoonmore said.

The spectrum of ODL considerations covered in the county legal department’s memo includes the idea of “serial meetings.” They’re described this way in the memo:

Serial meetings—which can be held in person, by phone, or by email—are small group meetings or discussions, held within a week, on the same subject, and when strung together or added up include a quorum of the governing body.

Serial meetings, Bloomington city council

The potential of committing serial meeting violations was pointed out to Bloomington city councilmembers by deputy attorney/administrator Stephen Lucas in a March 17 email message:

Also, councilmembers should be mindful about unintentionally holding unnoticed serial meetings under the ODL. As a reminder, a serial meeting occurs when members of a governing body participate in a series of at least two meetings and all of the following conditions are met: [list of conditions] …

Responding to Lucas’s email message, council president Steve Volan wrote:

Stephen [Lucas], by the criteria described above, we’ve literally been in serial meetings for the past couple of days. Every member is scrambling to “receive information,” and is doing so through multiple media. I must say that even now I am not clear on what is and isn’t allowed, based on conflicting guidance and this very confusing situation.

Lucas’s advice on serial meetings had come in response to an email thread, where communications strategies among councilmembers were discussed. This was just around the time when COVID-19 countermeasures were starting to be implemented. In an email message to other councilmembers, Volan had suggested  establishing a daily conference call for councilmembers, proposing such a call that same day. In his response, Lucas advised that such calls would need to be noticed to the public under the ODL.

The council produced Volan’s email to The Square Beacon in response to a records request under the Access to Public Records Act, because it included the word “caucus” which one of the keywords specified in the request. Much of the material was redacted under the “deliberative material” exemption. After the redacted versions were sent, Volan forwarded the emails to The Square Beacon—so, those versions are not redacted.

Based on the origins of the serial meetings prohibition and its intent, it’s not obvious if Volan’s conclusion is accurate that the council had been having serial meetings.

A lot of scenarios would be allowed under the ODL serial meetings prohibition that might not, at first glance, seem permissible. Allowed is a one-by-one “polling” of other councilmembers on a topic, even within a week of a full council meeting. That’s because the full council meeting wouldn’t count as a gathering of at least three, under the definition of the serial meetings prohibition. That’s because the prohibition counts only sub-quorum gatherings in its calculus.

As as example of that kind of allowable scenario, Volan reported at last week’s city council meeting that he asked every councilmember individually what process they wanted use to fill the upcoming vacancy for the attorney/administrator position. That would not have been a violation of the serial meetings provision, even if the two-person gatherings had come within a week of the full council’s meeting.

On top of that, the polling Volan did came at the end of March and beginning of April, he told the administration committee the Friday before. That would remove even the four-member administration committee from the mix that could count as a gathering under the serial meetings definition. The potential violation would come from the idea that a complete set of one-one-one meetings, held within a week of a four-members committee meeting—a sub quorum gathering—would math out to a serial meetings violation.

That kind of calculation was not among the scenarios contemplated when the serial meetings part of the ODL was drafted, according to Steve Key, who’s general counsel for and a registered lobbyist for the Hoosier State Press Association. Key told The Square Beacon that he lobbied the legislature on the serial meetings law and followed the legislature’s work on it. The idea that a properly-noticed public meeting of a sub-quorum committee would be a part of the mix of gatherings counting towards a serial meeting was not contemplated when the legislation was developed, he said.

The kind of serial meetings that were meant to be ruled out, Key said, were the kind that the Indiana University board of trustees had held in order to discuss the firing of basketball coach Bob Knight with then university president Myles Brand.

They’d divided eight trustees into two groups of four. Brand met first with one group, then the other, and said in a deposition that deliberately gathered with fewer than a quorum of the Trustees “to exclude any impropriety with respect to the Open Door Act.”

Key pointed to a clause elsewhere in the ODL that excludes from the definition of “meetings” any chance gatherings that are “not intended to avoid this chapter.” So a potential serial meetings violation should be analyzed in a way that includes some notion of intent, Key said.

That would mean a series of gatherings that can be calculated as a “serial meeting” is not correctly analyzed as a serial meeting under the ODL, if the fact of the series of gatherings taking place happened “by chance.”

For example, say two councilmembers gather to deliberate on some subject matter on a Tuesday, and a different set of three councilmembers gather to deliberate on the same subject matter the following Wednesday—unaware that the other two councilmembers had gathered. Then that “serial meeting”—consisting of two gatherings—could be analyzed as happening by chance, not intended to circumvent the ODL’s requirements.