The Indiana Publisher

Page 4 April 2023 David Penticuff Muncie Star Press MUNCIE, Ind. − Indiana Public Access Counselor Luke Britt issued an advisory opinion saying a county council in Indiana cannot meet in private at a political party caucus and conduct public business, as happened in Delaware County in January. "It is the opinion of this office that a governing body consisting of officials who are all members of the same political party may not rely on the Open Door Law's caucus exception to take official action on public business" the conclusion of the decision read. "A caucus is appropriate for planning political strategy and the preparations for official action by fellow political party members. To conclude otherwise would short circuit the legislature's intention that public agencies conduct business openly." But the attorney for the council, Ben Freeman, says the opinion by Britt doesn't find fault with the council's actions when it met as a GOP caucus on January 19. "It was not a council meeting," Britt said. "It was a caucus." Freeman said the advisory opinion basically restates the law. "I don't think it supports that the council did anything wrong," he said. "I wasn't in the meeting so I can't say conclusively," Britt said in an email tot he Star Press, "but if substantive public business was discussed, it would be a violation." The question arose from a complaint filed by The Star Press after a majority of county council members met in a GOP caucus, which is not open to the public, and had discussions about candidates for appoint- ments to various public boards. After the Jan. 24 public council meeting, where the caucus was discussed, Freeman said Indiana law permits discussion about public policy issues during a political party caucus, according to an Indiana Supreme Court ruling from the 1990s. He and Council President Jessica Piper said the meeting was legal and involved no decisions, no polling of where the council members stood on any issue and no outright votes. But the state's definition of "official action" includes simply receiving information, deliberating about a matter of public business, making recommendations about such matters and establishing policy − not only making decisions or taking final action with a vote. "Unless an exception applies, any time at least four members of the Delaware County Council gather for the purpose of taking official action — as defined above — on any function upon which the council is empowered or authorized to take official action, then the gathering constitutes a meeting subject to the Open Door Law," the decision said. State law allows a majority of the council to be present at a political party caucus, which is a private meeting, to discuss politics. "A gathering of members of a political party or coalition which is held for purposes of planning political strategy and holding discussion designed to prepare the members for taking official action," is how a caucus is defined by state law. Political parties are not public agencies and not subject to the open door law. Currently, all members of the county council are Republicans. Britt told The Star Press his concern was the subject matter of the caucus. "They can take official action on political business, but not public business," he said. "Bottom line, you can't take official (or final) action on public business in a caucus." When asked, as an example, if that meant county council discussing the appointment of a particular individual to the county fair board during a GOP caucus would be a violation of the law, Britt replied: "Yes." A member of county council who was not invited to the caucus said the private gather- ing had been aimed at excluding him. "It's unfortunate that the entire Delaware County Council, with the exception of Jane Lasater, who is in Florida, and myself because I wasn't invited, met in secret under the guise of a 'Republican Caucus' for the sole purpose of discuss- ing the upcoming board and committee appointments," said At-Large Council Member Ryan Webb after the public meeting on Jan. 24. He said the meeting was an open door violation. Webb has at times been at odds with fellow Republicans, including making harsh and critical statements on social media. "The ruling by the state public access counselor is bittersweet," said Webb. "I am pleased that the counselor agreed with my position, ..." Webb said. "At the same time, I am disappointed that some elected officials in Muncie and Delaware County continue to believe that they do not owe the citizens of our community complete and total transpar- ency. Transparency is always the right answer," he said. Freeman said that he attended the caucus, where the county council members assembled, as a Republican, as opposed to being there as council attorney. Public Access Counselor: County council cannot hold private caucus to talk public business "They can take official action on political business, but not public business. Bottom line, you can't take official (or final) action on public business in a caucus." — Luke Britt, public access counselor Looking for newspaper employee or job? Check out the HSPA job listings at hspa.com/jobs and every month in the Indiana Publisher. Questions? Email sgoldsby@hspa.com.

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