Failure to give proper notice of meeting violates Open Door Law

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The following questions were submitted by Spencer Evening World, The Times of Northwest Indiana (Munster), The Mail-Journal (Milford):

Failure to give proper notice of meeting violates Open Door Law

Q: We had a blow up involving the county highway department. Two county commissioners went to the highway department to discuss the highway superintendent’s job with him. As a result, the superintendent resigned on the spot, but that’s not really my question.

Did their meeting with him constitute a quorum (likely an executive session) to discuss personnel and was thus a violation of the Open Door Law?

A: If the two commissioners went to the highway department with the intent to discuss the job performance of the highway superintendent, that would not qualify for an “administrative functions” meeting and the county commissioners should have given 48-hours notice of the meeting just as they would a regular meeting of the commissioners.

The subject matter would have qualified for an executive session, closed to the public, but still notice would be required 48 hours in advance. I’m assuming the Evening World reached out to the county prior to Jan. 1, 2018, to request notice of meetings, so if the newspaper didn’t get notice of the meeting, the two county commissioners violated the Open Door Law for failure to give proper notice.

The legislature did pass language trying to clarify what could and couldn’t be done in administrative functions meeting. I would contend that Rep. Mike Karickhoff’s intent was not to make job performance reviews fall under this avenue since the commissioners already had the ability to conduct those in an executive session if they wanted. HSPA worked with Rep. Karickhoff on that bill, which also gives the public the right to request that electronic public records be sent to them via email with no copying costs.

The administrative functions language is at IC 5-14-1.5-5. The executive session for job performance evaluations provision is at IC 5-14.1.5-6.1(b)(9). Both are part of the Open Door Law.

Full-size electronic copy of public notice OK for billing purposes.

Q: We’re moving to a new system next year and have a question on public notices (legals). The new system will enable us to put a digital copy of the notice on an affidavit and possibly on the Publisher’s Claim Form 99P. Is a digital copy of the ad acceptable as proof of the publication of the notice or would the customer still need a clipped copy of the actual newspaper?

A: The state Board of Accounts has approved the use of an “electronic” copy of the public notice for billing purposes as long as the attached electronic version is 100 percent the size of what was published in The Times. Actual size is crucial for them to determine whether newspaper fudged on the point size of type/column width in determining the price to be charged.

You may still run into situations where an attorney or judge may insist on an actual copy as proof of publication in a court matter, but I suggest you go electronic. Be prepared to meet a customer’s request if they insist on an actual clipping. Should be infrequent, but probably will happen.

Notice on board website does not meet Open Door Law requirement

Q: I read a story recently accusing Warsaw Community Schools of violating the Open Door Law. What confused me is that our newspaper did not receive notice of the meeting.

I asked the superintendent and president of the school board and they said they advertised for an emergency meeting (to sign teachers’ union contract) on their website and on the marquee out in front of the school. Are those appropriate venues for public notice in this day and age? I was told they also conducted their first vote via teleconference, which may be an issue as well.

A: Your email raises several questions as to whether the meeting complied with the Open Door Law. Emergency meetings are designed to take care of “actual or threatened disruption of the governmental activity or actual or threatened injury to person or property.” The emergency meeting allows the governing body to meet without giving 48 hours notice of the meeting as normal under the Open Door Law. The governing body does have to give media outlets that requested before the Jan. 1 to receive notice of meeting the same notice given to the governing body members of the emergency notice. [See I.C. 5-14-1.5-5(d).] Unless the board is saying failure to act that night would have resulted in a teachers’ strike that would have disrupted the school system, I don’t see an emergency.

If your media outlet is supposed to get notice of meetings, the school board should have reached out to your office.

So that’s two possible violations:

• Subject matter not eligible for emergency session; and

• Failure to give all media outlets (that requested notice prior to Jan. 1, 2018) notice of the emergency meeting.

Posting notice of a meeting on the school board website and building marquee does not meet the obligation for notice under the Open Door Law. They still must give notice to the media outlets. Your reference to a legal notice wouldn’t apply to this meeting. The legislature does require certain meetings to be noticed through a classified ad in a local newspaper or two. In those cases, they wouldn’t have to follow the Open Door Law, but the Public Notice Advertising Law [See I.C. 5-3-1.] The signing of a contract would not require a published public notice.

The Open Door Law does allow members of a governing body to participate in a public meeting via electronic means, [See I.C. 5-14-1.5-3.5.] but that individual is not counted toward the quorum for the meeting and may not vote on any action taken during the open meeting. They can partake in the discussion, but that’s it.

A teleconference would not be a meeting as defined by the Open Door Law since there would not be a majority of the school board located in one place. I would argue that a teleconference robs the public of its ability to “observe and record” a governing body taking official action on public business. Since the Open Door Law requires a final action to be taken at a meeting open to the public [See I.C. 5-14-1.5-6.1(c).], no vote should have been taken via teleconference.

So you may have two more violation:

• An improper electronic meeting; and

• Failure to take a final action in an open meeting. 

Send your questions to Steve Key, HSPA executive director and general counsel, skey@hspa.com.