Q&A: Executive session for contract attorney

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From the Carroll County Comet (Delphi):

Q: Can the Carroll County commissioners hold an executive session to discuss the contract for a county attorney? The president of the county commissioners hired a local attorney who agreed with him that this meeting fit the criteria for an executive session – citing IC 36-2-2-30 and also referencing IC 5-14-1.5-6.1(5) – “to receive information about and interview prospective employees.”

A: IC 36-2-2-30 authorizes the county commissioners to employ an attorney. It doesn’t say the hiring of an independent contractor for legal advice makes that independent contractor an employee.

The IC 5-14-1.5-6.1(b)(5) provision for an executive session allows discussion about employees, not independent contractors.

The basic question remains: Will the attorney be a full-time or part-time employee, with benefits in line with other full-time or part-time employees? Or is this a contract to provide legal services for the county, without the benefits that go to other employees – an independent contractor?

The courts are charged to interpret the intent of the law “liberally,” which means exceptions are going to be viewed narrowly.

One of the arguments for transparency is to prevent independent contractors from offering campaign contributions or kickbacks behind closed doors in consideration for a contract with the government unit, not that we suspect that’s an issue in this situation.

I suggest the commission president ask for input from Indiana Public Access Counselor Luke Britt. His input is free.

Contact Steve Key, HSPA executive director and general counsel, with media law questions at skey@hspa.com or (317) 624-4427.

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