Column: A call for the Indiana General Assembly to kill the local caucus exemption in the Open Door Law

In about three months, nine people will be sworn into office to start a four-year term on Bloomington’s city council.

Just four councilmembers will return. Five members will be new.

Unless Republican Brett Heinisch  prevails in the District 3 race against Democrat Hopi Stosberg, the council that is sworn into office on Jan. 1, 2024 will consist of nine Democrats.

That’s because the District 3 race is the only contested race on a full ballot of Democratic Party nominees.

Bloomington has seen all-Democrat city councils for more than a decade. The most recent non-Democrat to serve was Republican Brad Wisler, whose final term ended in 2011.

The recent one-party dominance of all elected positions of the city, including mayor and clerk, appears to have had an impact on the way councilmembers conceive of the nine-member body.

Namely, it appears that city council incumbents think of the council like an organ of the Democratic Party, at the same time that it is also the legislative branch of city government.

And Bloomington’s mayor John Hamilton appears to consider the mayorship to function as a party officer of some kind, at the same time it is the city’s executive.

That’s based on an email message sent by council president Sue Sgambelluri to her fellow councilmembers on July 25, 2023, about the content of a meeting that “council leadership” had with the Hamilton administration.

The city council produced Sgambelluri’s email message in response to a B Square records request. In her summary of the meeting, Sgambelluri writes, “Mayor Hamilton may call a caucus in the coming weeks to discuss political strategy around the expansion of BT [Bloomington Transit] services to areas in the County.”

The statement is remarkable for two reasons. First, it assumes that the mayor can “call a caucus”—something that presumably would be a privilege of the party chair.

If a county party chair were to call a caucus on the topic of countywide public transit policy, that would suggest something like an inclusive meeting of all precinct chairs that was meant to hammer out a local party platform plank on public transit. However, the Monroe County Democratic Party website does not include a local platform of any kind.

But for over a decade, it has apparently been a custom for elected Bloomington Democrats to label as a “caucus” any gathering of just city elected officials, even in excess of a quorum of council—in an attempt to apply the so-called “caucus exemption” to Indiana’s Open Door Law.

Here’s how that ODL exemption works. Excluded from the definition of a “meeting” under the ODL is a “caucus,” where “caucus” is defined as:

…a gathering of members of a political party or coalition which is held for purposes of planning political strategy and holding discussions designed to prepare the members for taking official action.

That’s a second reason that Sgamelluri’s description is remarkable. Bloomington’s city council, with participation by the mayor, apparently continues to flout the explicit advice from Indiana’s public access counselor, Luke Britt on the use of the caucus exemption.

Three years ago, at The B Square’s request, Britt weighed in with an informal opinion.

Britt concluded: “In the end, a governing body where all officials are members of the same political party may not rely on the Open Door Law’s caucus exception to take official action on public business.”

Here it’s important to note that “official action” has a low bar under Indiana’s ODL. It doesn’t mean that a vote has to be taken or even that an informal consensus is reached. A governing body takes official action even when it just “receive[s] information.”

Britt drove home the point again in an advisory opinion, when he wrote the following about the Bloomington city council’s meeting in a backroom of Crazy Horse on Jan. 2, 2020: “[T]he records demonstrate the Council president was selected to be president during the caucus when it should have taken place in an open meeting.”

In explaining his lack of interest in issuing a finding that the council actually violated the ODL at Crazy Horse, Britt wrote in the same advisory opinion: “…I believe the [Bloomington city ] council has received the message that public business in caucus clothing is contrary to law and precedent.”

It’s hard to see how the extension of Bloomington Transit service countywide is not public business. So the casual way that Sgambelluri reports the potential caucus on the topic of BT countywide transit suggests that Bloomington’s city council has not yet actually received the message that Britt thinks he has sent.

So, I think it’s time for the state legislature to act. It would take just one revision to Indiana’s Open Door Law to end the apparent free-for-all of secret gatherings that the Bloomington city council appears to continue to enjoy, by calling the gatherings “caucuses.”

Here’s a simple amendment to Indiana’s ODL that would preserve the state legislature’s ability to hold closed-door caucuses, but banish the exemption locally.

(h) “Caucus” means a gathering of members of a political party or coalition which is held for purposes of planning political strategy and holding discussions designed to prepare the members for taking official action a partisan caucus of members of the state legislature.

Here’s the B Square’s request to our area state legislators: During the upcoming 2024 session, please link arms in a bipartisan effort to enact this one simple reform that will promote transparency in local Hoosier governments.