Requirements must be met to qualify as periodical publication

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Send your questions to Steve Key, HSPA executive director and general counsel, skey@hspa.com or call (317) 624-4427.

The following questions were submitted by a concerned Hoosier, The News and Tribune (New Albany), Hoosier Media Group.

Requirements must be met to qualify as periodical publication

Q: Do you know what the requirements are to apply to be a periodical publication?

A: Checking my files, I find you need to intend to publish routinely (at least once a week in Indiana if your intent is for the publication to become eligible for public notices under current law). You also need an office, which locates your newspaper and would be the town/city where you file your form PS 3500 Application for Periodicals Mailing Privileges. There’s a filing fee – my file says $375, but I don’t know if that’s since been increased.
Then you wait for the application to be approved.

City not required to provide disciplinary record on police officer who resigned

Q: A New Albany police officer was fired after he was charged with crimes related to voyeurism and some other issues. He was terminated by the police merit commission. We received a tip that a second officer was being investigated. We filed an open records request and received documentation of a letter stating this second officer was put on administrative leave (paid). About four weeks later, he resigned from the department. He has yet to be charged criminally. My question: Is the second officer’s disciplinary record available to the public? I believe the statute says they must have been disciplined and it says (demotion, suspension or discharge).

A: Since the second officer resigned, he was not demoted, suspended without pay, or terminated. The provision addressing personnel records can’t be used to require New Albany to provide you records out of his file concerning this issue.

Note: there’s nothing to prevent the city from giving you full access to any personnel file, but the statute gives them the discretion to keep those files closed except for what is required to be made available. See I.C. 5-14-3-4(b)(8). Almost universally, public agencies use the discretion to keep personnel files confidential except for what they are required to make available for inspection and copying.

Now if you had any evidence that this wasn’t a voluntary resignation, but forced on the officer. Then you would have an argument that it was a disciplinary action disguised as a resignation and might get the records.

Your situation appears to be what typically happens when an incident initiates an investigation by the public agency. The employee weighs whether he wants to fight for his/her position based on whether he/she believes anything wrong occurred. In many cases, the employee decides to resign, thinking it’ll be easier to get the next job without having a termination on his/her resume. He or she also might make the decision to avoid potential publicity if the event was going to thrashed out in a public meeting of a governing body.

County council must give 48-hour notice for executive session

Q: I have a question about a county council not giving 48-hours notice and holding an executive session. There was only 24 hours given. Is that legal and what course of action can take place if they did violate this?

A: You are correct that 48-hours notice is required for an executive session. No different than it would be for a regular meeting of the council. (They could try to claim it was an “emergency” session, but I don’t know what subject matter they would claim that falls under both the emergency provision that evades the 48-hour notice and falls under the provisions allowing for a closed-door meeting.

The fruit of an illegal meeting can be challenged in court. So if after the illegal executive session, they pass some resolution/ordinance concerning mask mandates, for example. The action in the public meeting could be the subject of the lawsuit if it was the subject of the illegal, secret meeting. A judge could be asked to declare the action “null and void.”

If they held an executive session improperly. There are escalating measures that I would suggest:

  1. Bring the violation to the council’s attention to give them a chance for a do-over, hold a public meeting to discuss whatever subject matter they cited to justify the executive session.
  2. If they decline, request an opinion from the state’s Public Access Counselor. You can take a favorable ruling back to county council, again to ask they fix the situation.
  3. If they decline, you can then file the lawsuit. Because you first tried to resolve the issue with the help of the PAC, if you win the case, the judge will be required to award you reasonable attorney fees and court costs. There is a time frame for filing the lawsuit if you need to get an action declared null and void.

Hopefully it will get fixed before it reaches that point.

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Send your questions to Steve Key, HSPA executive director and general counsel, skey@hspa.com or call (317) 624-4427.

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