Column: Will Bloomington’s new city council continue a culture of secrecy or chart a different course?

The Bloomington city council members who were sworn in on Jan. 1 have a chance to chart a course for transparency that could distinguish them from the group who were sworn in four years ago.

If the 2024 edition of the city council managed to get through the first two days of the year without violating Indiana’s Open Door Law, then they have already improved on the previous group’s performance.

But there’s more to transparency than just resisting any urge to meet outside of public view to discuss the people’s business.

Transparency is about a cultural norm—an expectation that any information accessible to councilmembers is also accessible to the public.

Ideally, the public should not have to ask to see the same information that is provided to councilmembers. That information should be pushed to the public, by posting it on the city’s website.

But when a member of the public does ask to see the same information that has been provided to councilmembers, it should be provided without delay and without redaction.

The Bloomington city council that was sworn into office in 2020 fell dramatically short of that basic cultural norm of transparency.

The new city council could make a good start towards establishing better cultural norms, by directing the council staff to start posting, a matter of routine, one category of document that has previously been shielded from public view—meeting memos.

A “meeting memo” is a memo composed by council staff and sent to councilmembers on the day of a meeting. Such memos could, as a matter of standard procedure, be posted in the same place on the website as a meeting information packet.

The practice is already somewhat commonplace—for meeting packet addendums that are released on the same day as a council meeting. The meeting memo could be posted in the same way.

But the council staff has been resistant to pushing meeting memos to the public. And when asked for that information, they have seen fit to redact material in a way that appears to be unsupported by Indiana’s Access to Public Records Act.

As an example, the council staff wrote a memo to the city council on Jan. 6, 2021, which was the first meeting of the council that year—the so-called organizational meeting.

The backdrop to that memo was the fact that then-councilmember Susan Sandberg had been appointed by the city council in 2020 to serve as the council’s representative to the plan commission. Sandberg wanted to continue her plan commission service in 2021.

Assignments of councilmembers to various committees and boards are typically made at the start of the year. And at the start of 2021, Isabel Piedmont-Smith wanted to serve on the plan commission.

The question posed to the council administrator/attorney appears to have been something like: How long does the council’s appointment to the plan commission last—four years or just one year? (It was Sandberg who wound up getting the nod from a majority of her colleagues as the plan commission appointee.)

A typical appointment by the mayor to the plan commission is for four years. But for the city council appointment, city code has an “or until” clause:

Members appointed from the membership of the board of park commissioners, board of public works, county plan commission and the common council shall serve a term co-extensive with their terms on the appointing body or until that body appoints another at its first regular meeting of the year.

So, in any year, the council can appoint a councilmember to the plan commission  who is different from the member who was previously appointed, or can let the member who was previously appointed continue to serve without needing to “renew” the appointment. City code does not explicitly address whether a councilmember who is appointed at the start of a four-year term has a right, if they choose, to seve in the the plan commission seat for the duration of their term.

The information the council received on the topic in its “meeting memo” for Jan. 6, 2021 was redacted when The B Square requested it.

But The B Square obtained the redacted text through other means.  (The .pdf under the link was created by taking the redacted text, setting the color to white, and pasting it into a layer on top of the redacted portion.) Here’s what the redacted text said:

One issue to note: Going back at least to the early 1990s, the Council has taken action on an annual basis to appoint councilmembers to serve on the various groups that include a councilmember representative. These annual appointments have been made, with few exceptions, at the first meeting of the year. However, a number of the boards, commissions, or other groups that councilmembers serve on include terms lasting longer than one year. The terms for the City’s Economic Development Commission, for example, are 4 years, according to state law (IC 36-7-12-9).

I have attempted to compile information relevant to each of the boards/commissions that include a council representative in an effort to better inform councilmembers ahead of making any appointments. I have attached a spreadsheet that lists the Council’s annual appointments (back to 2007) and provides as much information about term lengths as I’ve been able to gather since spotting this issue. However, I have not yet been able to compile information about when the terms for a given board/commission should actually start and stop.

Making an appointment when one is not needed may or may not pose an issue. If CM1 (for example) is serving a 4 year term on a board, but the Council appoints CM2 to the board after only 1 year, CM1 might rightfully object. A number of the relevant boards/commissions have rules about when a member can be replaced. The statute governing the Urban Enterprise Association, for example, states that members may be dismissed only by the appointing authority and only for just cause. However, the appointment to the Solid Waste Management District Board of Directors, as another example, serves at the pleasure of the Council

In short, it does not seem to pose a problem if the Council appoints the same member to continue serving on any given board as in 2020. While potentially confusing and unnecessary, this would follow past Council practice and would provide a record of the Council’s representatives to be reflected in the meeting minutes. It would also not pose a problem if a member willingly steps down from serving on a board before the end of the term to allow the Council to appoint a new representative.

However, in the event the Council would like to appoint a different member to serve on a board that has a term length longer than 1 year (and the actual end date for the term is unknown, as many are at the moment), there could be an issue if:

– the member currently serving does not wish to step down; and
– state/local code provisions governing the board only allow for removal of a member for cause.

If more information is needed for a particular board/commission, the Council could delay making an appointment until the January 13 meeting to allow time for more fact-gathering.

The redacted document was sent to The B Square by council administrator/attorney Stephen Lucas on March 18, 2022 with the note: “The redacted portions of the records have been excluded as exempt from disclosure under Indiana Code 5-14-3-4(b)(6) as advisory or deliberative material.”

Lucas left out a portion of the Indiana state statute that is relevant here, which is the modifying clause for the word “materials,” which is “that are expressions of opinion or are of a speculative nature.” What is reported in the memo does not appear to be mere opinion or speculation, but rather mostly historical facts about the council’s past actions and the results of Lucas’s research, and the recitation of city code concerning different boards and commissions.

A more important consideration than the technical legal issue concerning “deliberative materials” is: Would it have better served the public interest to have provided the document to the public in unredacted form, before the meeting took place?

For a city council where the cultural norms are set for transparency, the answer to that question is clear: Yes, any background information that will be used to inform the city council’s deliberations at a meeting should be accessible to the public before the meeting.

It’s worth remembering that the exception for “deliberative materials” in the state statute is discretionary. That is, even if the council staff thinks they have a good legal argument that part of a document satisfies the “deliberative materials” exemption, they are not required under the statute to withhold it.

That’s a choice the council staff can make, and they should make that choice under the clear direction of the city council: Don’t try to apply the “deliberative materials” exemption when city council records are requested under state statute.

Now, at the start of its term, the new edition of the council should direct its staff to make a routine out of posting the “meeting memos” to the city’s website in the same place where meeting information packets can be found.