Complaint filed: City’s plan commission violated Open Door Law, says Bloomington resident

In a formal complaint filed with Indiana’s public access counselor (PAC) on Friday, Bloomington resident Andrew Guenther has alleged that the city’s plan commission violated Indiana’s Open Door Law (ODL) when it held a lunch session on Feb. 8.

The apparent purpose of the Feb. 8 meeting, and others like it in the past, was to give plan commissioners a preview of cases that would be appearing on the next month’s regular meeting agenda.

Guenther’s specific complaint is that no notice of the lunchtime meeting was given to the public as required under the ODL.

Guenther’s conclusion that the plan commission posted no public notice of the Feb. 8 meeting, as required under the ODL, is based on the fact the city of Bloomington has not provided a copy of the public notice, in response to a records request he made under Indiana’s Access to Public Records Act on Feb. 16.

The formal complaint filed with the PAC alleges similar violations of the ODL, on a monthly basis, for the last four years. During that period, the plan commission allegedly met on the day after a regular monthly meeting to preview upcoming petitions, without posting required notice.

A gathering attended by a quorum of a public body just to receive information is still a “meeting” as defined by the ODL. Meetings are defined as gatherings of at least a quorum when “official action” is taken. The ODL includes “receive information” as the first on its list of items in the definition of “official action.”

According to the notice of complaint sent to the city of Bloomington by the office of the PAC and cc-ed to Guenther, Bloomington’s plan commission has until March 28 to respond to the complaint.

The PAC will eventually issue an opinion in the case, which will not be legally binding. But public bodies often rely on PAC opinions for guidance. The PAC’s formal complaint process serves as an option to get a third-party to adjudicate a dispute on ODL issues without necessarily involving the courts.

Guenther’s name in connection with the Bloomington plan commission will likely be familiar to many readers. Guenther is at the center of a lawsuit against the city over an appointment to a plan commission seat.

Guenther and William Ellis, who was Republican Party county chair at the time of the appointment, claim that Guenther is the rightful plan commission appointee for the seat in which Chris Cockerham now serves. Guenther prevailed in the circuit court. But the city of Bloomington appealed. The briefs for both sides have now been filed with the court of appeals, and that case is just waiting for a ruling.

It was because of Guenther’s status as a potential member of the plan commission that he was able to learn about the “lunch sessions.” Guenther’s complaint states, “As a result of his status as a contested member, Mr. Guenther has been put on an email list-serv for Bloomington plan commission members/Bloomington planning and transportation staff.” It was from an email message sent to the list that Guenther learned of the lunch sessions.

There’s already an indication that in the future, Bloomington will be handling public notice of the plan commission’s so-called “lunch sessions” in a different way. Just after Guenther filed his records request for a copy of the public notice for the Feb. 8 lunch session, a recurring “work session” item was added to the plan commission’s Google Calendar for the day following each regular monthly meeting. That corresponds to the timing of the historical “lunch sessions.”

The approach of using a “work session” to preview upcoming meeting items is also used by Bloomington’s board of public works. The board of public works “work sessions” are typically held Monday around noon before a Tuesday evening meeting. The board of public works “work sessions” have been noticed to the public as required by the ODL for at least the last several months, when The B Square started monitoring.

[Updated at 5:10 p.m. on March 11, 2022: In response to Guenther’s records request for documents related to the Feb. 8 meeting, the city of Bloomington indicated it had no records responsive to his request for a copy of the proper public notice. However, the city also produced some meeting notes, which indicate that in addition to planning department staff, just one voting member of the plan commission attended. A gathering where less than a quorum attends is not a “meeting” under Indiana’s Open Door Law (ODL). That means, at least for the Feb. 8 meeting, the Bloomington plan commission looks like it was squared up with the ODL. Guenther’s complaint filed with the public access counselor alleges violations of the ODL for a four-year period.]