Statements at recent commissioners' meeting imply possible Open Door Law violation
Statements made by Owen County Board of Commissioners President Gary Burton at the May 16 meeting could indicate a violation of Indiana’s Open Door Law.
The potential violation took place just before the portion of the meeting for comments from elected officials and department heads.
What is the Open Door Law
The Indiana Open Door Law was originally passed in 1977 and was amended in 2016. It’s purpose is to give public access to meetings held by public agencies.
“Generally, all meetings of the governing bodies of public agencies must be open at all times so members of the public may observe and record them,” the Indiana Public Access Counselor’s Handbook on Indiana Public Access Laws.
The law defines a public agency as any board, commission, department, agency, authority or other entity which exercises a portion of the executive, administrative or legislative power of the state. This includes advisory commissions or committees.
The law then defines a governing body as two or more individuals that take official action on public business. It defines a meeting as a gathering of a majority of the governing body of a public agency for the purpose of taking official action on business. For the Owen County Commissioners, a majority of the three-person board is two.
The law also outlines seven items that do not institute a public meeting. These include social or chance gatherings not intended to avoid the ODL requirements; on-site inspection of a project or program; travel to and attendance of meetings of organizations devoted to the betterment of government; a caucus; discussion of an industrial or commercial prospect that does not include a conclusion of recommendations, policy, decisions or final action on the terms of a request or an offer of public financial resources; board orientation; and administration of an oath of office.
“In all instances, governing bodies are encouraged to be mindful of the mere appearance of impropriety,” the handbook reads.
The law also defines what official action includes – receiving information, deliberating, making recommendations, establishing policy, making decisions or taking final action.
“In order to be considered a meeting pursuant to the ODL, a governing body must take ‘official action,’” the handbook reads.
There are two exceptions to the ODL. The first is in emergency situations where a person or group of people are threatened with injury or actually injured or there is an actual or threatened disruption of governmental activity. Executive sessions are the other exception.
The ODL identifies specific instances when a board or commission may have an executive session. These meetings require 48 hours advance notice and are required to include the time, date, location and subject matter by referring to the specific exception that allows for an executive session. Regular and special session meetings also require 48 hours advance notice. Saturdays, Sundays and legal holidays do not count in the 48 hours.
“A goal of a government unit is to schedule executive sessions sparingly. They should not be held regularly, nor should they be a standing meeting on a governing body’s schedule. A governing body should hold only a handful of them a year, if at all. These sessions are heavily scrutinized by the Public Access Counselor,” the handbook reads.
It is also important to note that executive sessions still require final action to be taken at a meeting that is open to the public.
What was said at the meeting
“As most of you have heard or know, we had the building appraised,” Burton said of the armory.
He added that they were waiting on the appraisal to come back from the company they had do the work.
“But during that time, Bob (Curry, a county commissioner) and I met about a month ago with Cathleen and Rick and discussed the current lease and the current situation with the county and the financial situation and had a really good meeting with them,” Burton said. “We’re not trying to run them out of the county by no means. We want them here.”
He said that they offered to sell the building to Cathleen’s Gymnastics, but that it wasn’t something they were interested in.
“So I went back last week and we renegotiated a new lease with them that is going to be a substantial increase,” Burton said.
He said that the negotiated lease is a six year lease with the option for Cathleen’s to opt out after four years.
“Every two years, it will go up four percent to cover any inflation, raise in the cost of utilities, insurance, so on and so forth,” Burton said. “So for the folks in the county that take their kids there for after school programs or gymnastics, they’re safe and secure. There is an increase in their rent from the county to cover our expenses.”
Burton then spoke about the past agreement.
“We were losing money. We can’t lose money as a county. We’ve done enough of that in the years past. So we fixed that problem. They’re satisfied with the agreement. I think the county’s satisfied with the agreement,” Burton said.
Burton then implied that the terms of the lease were discussed with Curry.
“I’ve went over it with Bob. I’ve also went over it with the attorney,” Burton said of the agreement.
He said it takes effect Sept. 5.
“They will be here roughly that last meeting of August to sign that agreement, but all of that has been worked out, and we’ll probably move forward in possibly leasing some more of that building for the county to make further profit,” Burton said. “I just wanted to touch on that real quick to assure the folks out there that we’re concerned about after-school programs or summer programs. They’re good to go. Now Cathleen’s may raise your rate. It covers their rent expense, but we’ve come to an agreement here at the county, so I just wanted to touch on that real quick.
There has not been a vote in an open meeting to address the lease or the agreement.
County attorney Jim Bryan commented on the armory lease during his comments period.
“On the armory lease, I’ll have that directed so if anyone has any questions, there would be a formal acceptance and a formal adoption of the armory lease. We could do that at the June 6 meeting,” Bryan said.
He said that he has notes and would have the lease agreement drafted and ready for a “formal approval” at a public meeting on June 6.
When asked whether or not the comments concerning Curry and Burton meeting with Cathleen’s Gymnastics, Burton discussing the lease terms with Curry and the county’s satisfaction with the agreement were in violation of the open door law and why, Bryan only said the following in an email: “Only Commissioner Burton met with Cathleen's Gymnastics to discuss the lease. There has been no final decision concerning a new lease. If a new lease is proposed, it will be presented at a Commissioners meeting.”
Burton did not respond to the emailed request prior to press time.
This article originally appeared on Evening World: Statements at recent commissioners' meeting imply possible Open Door Law violation
