University can conduct some, not all, business in executive session

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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 The Herald-Times (Bloomington); The Times-Mail (Bedford):

University can conduct some, not all, business in executive session

Q: The IU Board of Trustees voted last week to enter contract negotiations with an unnamed candidate for the presidential position. After writing a story about the trustees’ meeting last week, a faculty member reached out to me with concerns about the lack of transparency in the search. This faculty member pointed me to university policy on searches for administrators. Section A of this policy states that the Board of Trustees develops procedures for the presidential search. The board did so in August — at the same meeting Michael McRobbie publicly announced his plans to retire. The resolution clearly state the search will be confidential, done by a search committee.

In October, an 18-member search committee was approved by the Indiana University Board of Trustees to screen candidates. A 26-member advisory committee was formed to gather input from various stakeholders to guide the search committee. However, in the university search policy, section J subsection 4 states that all search committees “Include one or more public events or other opportunities for faculty from all campuses, affected units, and other relevant constituencies, to engage with the finalists and provide feedback to the committee.” Members of the search committee (namely the Dean of the IU College of Arts and Sciences) and the university spokesperson confirmed to me no such events took place and argued that this policy does not affect presidential searches. But this is the crux of the faculty member’s complaint. I have also been told that the list of candidates is not public record, and that the search is confidential to protect candidates at their current jobs.

I will be reaching out to the university’s general counsel to ask about the policy, but I wanted to ask you:

  1. Do you think this is a correct interpretation of the policy — to allow presidential searches to be entirely confidential?
  2. Are candidate names public record?
  3. There is a budget associated with this search. Is that also public record?

A: I’ve looked over the documents you shared with me, Emily. Here’s my take on the situation:

Do you think this is a correct interpretation of the policy — to allow presidential searches to be entirely confidential?

The Open Door Law allows a governing body to have an executive session “to receive information about and interview prospective employees [IC 5-14-1.5-6.1(5)]. This provision also would apply to the search committee appointed by the Board of Trustees.

Statement A of the university policy says the search for a president will be “conducted by the board of trustees through “procedures developed by the board.” I think this differentiates the president’s search from searches for other administrative positions. I think this position is bolstered by the sentence that says they “should” consult with the faculty council, but doesn’t require it. You’ll note that’s different language relating to faculty participation than what is written in Statement B.

I think the University is on solid ground as to the ability of the search committee to have executive sessions to “receive information about and interview prospective employees,” but doesn’t mean they can conduct all business in secret since a committee of a governing body is subject to the Open Door Law provisions, such as giving 48 hours notice of both open meetings and executive sessions.

Are candidate names public record?

The Access to Public Records Act allows a government unit, which Indiana University is, the discretion to keep “files of applicants for public employment” confidential [IC 5-14-3-4(b)(8). My understanding is the language was included in APRA for the very reason you were given – protect applicants from possible retribution from current employers who react badly to the fact their employee interviewed for another job. Apparently this occurred with school boards firing school superintendents when they discovered the superintendent had interviewed for the same job at a larger school district.

I think IU is on solid ground if they use their discretion to keep the names of candidates confidential, but no violation of APRA if they decided to share that information.

There is a budget associated with this search. Is that also public record?

The Public Access Counselor’s position on how taxpayer money is spent has been consistent in saying that information should be made available for inspection and copying upon request.

One wrinkle you’ll have to be aware of is that the Indiana University Foundation is not a public agency subject to the state’s public access laws. (Specific lawsuit several years ago made that determination.) So if the Foundation foots the expenses, you might get shut out on that request, although there might be information that eventually becomes known through the Foundation’s IRS filing for the year, but that wouldn’t pop up until 2022.

No need for public session to place police officer on administrative leave

Q: I have a question regarding public employees and the process of placing them on leave pending an investigation. We received a press release about an investigation and charges filed against a local police officer for misconduct. The release stated he had been on paid administrative leave during the investigation.

My question: Should the determination that the officer be placed on paid leave have gone before the Board of Works and Safety in a public session? A few years ago, a local officer was placed on unpaid administrative leave pending a criminal investigation and that did go before the Board of Works, so I was curious as to why this officer’s job status didn’t come before the board, unless it’s because it was paid leave vs. unpaid.

A: It’s not unusual for a police officer to be put on paid leave during an investigation into his/her conduct. I don’t believe that action, since it isn’t costing the officer a dime, would need to go before any board but can be done upon action by the chief/sheriff.

Charges, whether criminal or administrative, opens doors for you to seek some records. Criminal charges from the court where charge is filed. If administrative for breaking department policy, you can ask for records “relating to the status of any formal charges against the employee.” [IC 5-14-3-4(b)(8)(B)]

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

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