Decision weakens ability to monitor disciplinary actions


Key Points: Steve Key, executive director and general counsel, Hoosier State Press Association

An Indiana Court of Appeals decision weakens the ability for Hoosiers to monitor the actions taken by state and local government units to discipline employees.

The decision in WTHR-TV v. Hamilton Southeastern School District hinged on the three-judge panel’s interpretation of the 2003 General Assembly’s changes to the section of the Access to Public Records Act (APRA) concerning the level of confidentiality that could be given to records in personnel files of public employees.

The decision penned by Judge James Kirsch and concurred by Chief Judge Cale Bradford and Judge Melissa May, will allow a government unit to create an explanation for the “factual basis” for a disciplinary action, rather than allow inspection or copying records in the personnel file that would support the disciplinary action.

The conclusion was based on their interpretation of legislative intent with the words “information” and “factual basis” as used in I.C. 5-14-3-4(b)(8).
While parsing the meaning based on what is in the statute, they were unable to take into account practice since the APRA was passed in 1983 and missed the thrust of the statute.

Then General Counsel and Executive Director Richard Cardwell for HSPA created a guide to APRA in 1987, four years after its initial passage. Cardwell was the chief lobbying force behind both the Open Door Law and APRA. In that guide, Cardwell wrote about ARPA’s Section 3: “The main thrust of the statute is encompassed with this section, that is, that any person has the right to inspect and copy the public records of any public agency and that a public agency can not deny or interfere with the exercise of that right.”

Section 9 describes a violation of the law: When an official “refuses to permit inspection and copying of a public record when a request has been made …”

The right to inspect or copy existing public records is the core principal of the statute.

Unfortunately, the three-judge panel wasn’t in the room where it happened and it’s ruling opens the door for government units to obscure what led to disciplinary actions to the detriment of Hoosiers.

In the context of disciplinary actions, this access is vital for citizens to be able to determine whether a disciplinary action taken against a public employee was appropriate. Did the facts behind the suspension without pay of a sheriff’s deputy, for example, indicate he got a slap-on-the-wrist when termination was more appropriate or indicate the sheriff was looking for an excuse to punish someone who made the mistake of supporting the sheriff’s opponent in the last election.

The Court of Appeals decision allows the government unit wanting to obscure what event led to a disciplinary action to write its own script and pass it off as the truth to the public.

As participant in a meeting of legislators and interested parties during the 2003, legislative session, I can attest that was not the intent of the change to I.C. 5-14-3-4(b)(8). I recall the meeting because I was nearly expelled from it at the start by then Sen. Luke Kenley, R-Noblesville, for initially questioning whether the change was needed. Sen. Kenley was the chair of the Senate Education and Career Development Committee and led the meeting to hammer out acceptable language between then S.B. 169, authored by then Sen. Connie Lawson, R-Danville, and H.B. 1476, authored by then Rep. Clyde Kersey, D-Terre Haute.

The anticipated change concerned access to personnel files of public employees, which prior to the passage of S.E.A. 169 in 2003 allowed the public to access “information concerning disciplinary actions in which final action has been taken and that resulted in the employee being disciplined or discharged. It did not matter what the level of discipline was – a letter of reprimand was enough to allow the public to inspect and copy records in the individual’s personnel file concerning that discipline.

Sen. Lawson’s bill was pushed by the Indiana School Boards Association, which wanted to hear behind closed doors allegations of misconduct by school bus drivers who were independent contractors. As her bill went through the Senate education committee, only Kenley agreed with HSPA’s argument for a policy distinction between employees and independent contractors under the Open Door Law provision. The other 10 senators saw the situation as a “bus driver is a bus driver” proposition and if the school board could meet behind closed doors to hear allegations about an employee, it should be able to do the same for an independent contractor.

Meanwhile, Rep. Kersey’s bill was moving through the House. It was Kersey’s third attempt to push the Indiana State Teachers Association effort to narrow what information the public could obtain about disciplinary actions of public employees to only cases where the employee was suspended without pay or fired. It also only allowed access to “findings of facts,” eliminating access to any other documents that related to the disciplinary action.

HSPA believed the bill would set the stage for cover-ups. Public officials could block public scrutiny of disciplinary actions by simply making sure the discipline did not include a suspension without pay. A demotion, reprimand or other form of punishment would allow the government unit to keep confidential information in determining whether the level of discipline was appropriate, too harsh, or too lenient.

A floor amendment authored by then Rep. Michael Murphy, R-Indianapolis, added to HSPA’s concern with the bill. The amendment limited public access to information about the disciplinary actions if the decision was made by a governing body. If the action was taken by an individual (sheriff, school superintendent, mayor, governor, department head, etc.) then the public would not get access to relevant records in the personnel file. Another opening for cover-ups in HSPA’s view.

When the House bill floundered in the Senate, Lawson’s S.B. 169 was amended on the House floor by then Rep. Terry Goodin, D-Crothersville, to add the ISTA proposal. That set up Lawson’s dissent and the meeting where I almost was asked to leave.

I recall raising the concern with the change from “information” to “factual basis” the potential that it could be interpreted as allowing the government unit to only make public the rule or regulation violated the satisfy any public records request, but was assured by others in the meeting that all the records supporting the disciplinary action would need to be released.

Bolstering that position was a clarifying request, I don’t recall whether it was Dave Bottorff of the Association of Indiana Counties or Frank Bush for the Indiana School Boards Association that wanted to make sure there was agreement that if a document contained material about two allegations and the employee was only disciplined for one allegation that the government unit could redact from the document information about the allegation that was not acted upon. Everyone agreed that was the case.

The “findings of fact” language was not incorporated into the final version of S.B. 169.

Unfortunately, the three-judge panel wasn’t in the room where it happened and it’s ruling opens the door for government units to obscure what led to disciplinary actions to the detriment of Hoosiers.