Did Bloomington plan commission meeting follow state law on electronic meetings?

Monday’s regular meeting of Bloomington’s plan commission was the first one since Indiana governor Eric Holcomb’s emergency health order was lifted.

The plan commission’s meeting was conducted on a hybrid in-person-electronic platform.

Just four commissioners attended in person, out of nine voting members. Two participated via Zoom video conference.

Four out of nine is 44.4 percent, which is less than the 50 percent required to be physically present at a hybrid meeting—under an amendment to the Open Door Law (ODL) made by the state legislature in 2021.

For insight on the question of the plan commission’s possible violation of the ODL, The B Square has reached out to city attorney Mike Rouker, who attended Monday’s plan commission meeting.

The change to the ODL in 2021 recognized the benefit of allowing some members of a public body to participate remotely, based on experience with such meetings during the COVID-19 pandemic.  But the legislature restricted remote participation in several ways.

One example of a restriction on hybrid meetings, which was observed by Bloomington plan commissioners on Monday night, is the requirement that votes have to be taken by a roll call.

Another requirement is that at least half the members of the governing body must be physically present.

That’s a requirement that does not seem to have been met.

Plan commissioners attending in person on Monday were: Jillian Kinzie, Andrew Cibor, Tim Ballard, and Karin St. John. Participating via Zoom video conference were Flavia Burrell and Chris Cockerham. Absent were Ron Smith, Israel Herrera, and Brad Wisler. Also absent was a tenth non-voting member, Trohn Enright-Randolph.

Last week, governing bodies in the city of Bloomington started holding their meetings on a hybrid in-person-electronic platform. Under Holcomb’s emergency order, public bodies could hold their meetings with all members participating on an electronic platform, which Bloomington governmental bodies did. But they were not required to do so.

With the lifting of the governor’s order, at least some members of the public body have to attend in person.

Based on guidance from Indiana public access counselor Luke Britt, the 50 percent threshold for members who are physically present is not ambiguous. Britt put it like this (emphasis in the original):

The lynchpin to electronic participation by local governing body members is the physical presence of at least 50% of sitting board members, i.e. total membership of the board at the time of the meeting. Ind. Code §5-14-1.5-3.5(g). If less than 50% cannot attend in-person, the meeting must be canceled or postponed. This is an important fail-safe to ensure transparency.

One approach to remedying a violation of the ODL is hold another meeting in compliance with the ODL and to reenact the decisions that were made at the problematic meeting.

For Bloomington’s plan commission, that would mean voting again on a recommendation to deny a revision to the Trinitas PUD on the west side of town, to approve a major site plan for a Trades District technology center, and to recommend a raft of unified development ordinance (UDO) text amendments that are meant to clean up various issues that arisen since the new UDO was adopted.

Unrelated to Monday’s apparently problematic meeting, an ODL complaint with the public access counselor (PAC) is currently pending against Bloomington’s plan commission. The complaint alleges that the plan commission has not been giving public notice of its lunch sessions, typically held on the day following a regular monthly meeting.

This Tuesday’s lunch session might be the first one to have been posted—for 11:30 a.m. in the Kelly Conference Room at city hall.

The complaint that has been filed with the PAC came from Andrew Guenther, who is at the center of a lawsuit about a disputed plan commission appointment.

Guenther’s complaint to the PAC was based in part on Bloomington’s non-response to a records request made by Guenther for documents related to the plan commission’s Feb. 8 lunch session. After Guenther filed his complaint with the PAC, Bloomington responded to the records request, saying 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. But Guenther’s complaint filed with the public access counselor alleges violations of the ODL, in connection with plan commission lunch sessions, for a four-year period.

The B Square will update this article with any response received from city attorney Mike Rouker.

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Updated at 11:29 a.m. on March 15, 2022. In an email message timestamped 10:42 a.m. Rouker wrote:

That’s a good question and one we’ve spent some time considering.

IC 5-14-1.5-3.5 (b) and (c) indicate (1) that members of a governing body who are participating remotely shall be considered present for purposes of establishing a quorum and (2) also that in the event of a technological disruption affecting some members who are participating remotely, if the sum of the members participating in person and the members participating remotely without technological disruption satisfies the quorum requirement, the body may continue to meet and take final action. The only way these two provisions make sense is if the denominator used when calculating compliance with the 50% requirement is based on members attending any particular meeting.

Using participating members as the denominator is also consistent with general parliamentary practice, where, for example, the denominator used to compute whether the 50% requirement has been met for a particular measure to succeed is the number of members participating in the vote, not the total membership. You’d only use total membership as a denominator where there is a clear and explicit statute or rule stating that an alternative denominator is to be used. Section 3.5 provides no such clear and explicit mandate. It sure would have been helpful to everyone if the legislature had crafted Section 3.5 more thoughtfully, but I’ve pretty much learned to stop hoping for that.

Rouker’s message did not address the public access counselor’s interpretation, which appears to be at odds with the analysis he provided. The B Square has reached out to the public access counselor and other sources get additional perspective on the question.