News conference consituted a public meeting, state concludes

Indiana's public access counselor looked into whether a press conference held by Elkhart city council members might have been an illegal meeting.
Posted on March 6, 2013 at 12:00 a.m. | Updated on March 6, 2013 at 5:01 p.m.

ELKHART — A raucous news conference organized by five city council members last fall has been investigated by state authorities to determine whether it violated Indiana’s Open Door Law.

A ruling issued by the state’s public access counselor Wednesday, March 6, determined the gathering on Sept. 14, 2012, was not a “blatant” violation, but did constitute a meeting that was not properly advertised.

The circumstances were fairly simple, but created a complicated scenario for the public access counselor to sort through.

Five council members had announced plans for a press conference and hosted it in the city council chambers in an attempt to urge Mayor Dick Moore to consider a list of cost-saving measures days before council began reviewing the proposed 2013 budget.

Since a gathering of five of the nine council members constitutes a quorum, the event met the state’s basic definition of a public meeting.

Those who planned to participate included four Republican city council members — David Henke, Brian Thomas, Mary Olson and Kyle Hannon — plus Democrat council member Ron Troyer.

Minutes before the meeting began, though, an attorney for the city administration warned the group that the gathering could be viewed as a public meeting that lacked the normal 48-hour public notice.

The group then contacted a public access attorney in Indianapolis and trimmed the formal presentation to four by having Olson step aside. She then took a seat in the gallery.

Complicating matters, two Democrat council members attended the press conference and eventually began peppering the group with questions.

That means seven of the council’s nine members were interacting and discussing city issues at a meeting that was not formally announced.

Indiana’s public access counselor, Joseph Hoage, in an opinion issued Wednesday, concluded that the news conference met the definition of a public meeting and that those who organized it failed to provide public notice.

While it was clear the group was not trying to meet in secret or behind closed doors, Hoage concluded: “I do not consider the actions of the council to be a blatant or intentional violation of the (Open Door Law), but think it can be more accurately described as a failure to understand the broad definition of ‘official action’ ...”

While the council members did not vote or decide anything, “making recommendations is a type of conduct that is considered ‘official action’ under” state law, Hoage said.

The findings fall far short of accusations occasionally fielded by the state when public officials are accused of deliberately meeting in private or seeking to make decisions outside of the public eye.

The agency’s ruling has no force of law. However, Hoage said he believes local officials can benefit from the inquiry.

“This would probably be the end of it. They would, going forward, just need to be mindful of these considerations and govern themselves accordingly,” Hoage said.

Hoage sought statements from the council and received feedback from Henke and Tonda Hines, who was serving as council president at the time.

Henke argued that he didn’t think the meeting violated the Open Door Law because the press conference did not attempt to take action and was only an effort to “provide information to the public.”

Hines said she was aware of the press conference and believed it was a violation of the Open Door Law.

Hoage suggested the effort to reduce the number of council members participating in the press conference from five to four — by having Olson sit down — did not make a difference.

“Regardless of the placement of the members of the council in the room where the press conference was conducted, a majority of the council still intended to gather at a specific place and time,” Hoage wrote.

The investigation was sought by Kimberly Burtsfield, an employee of the Indiana State Board of Accounts whose field work includes Elkhart County.

Burtsfield could not be reached for comment, but her supervisor, Doug Wiese, said she did not individually launch the inquiry.

Wiese said they were notified “by a concerned citizen” and it was turned over to Burtsfield, who then sought an opinion from the public access counselor. He said they don’t publicize the names of people who seek such inquiries.

Henke said he believed Moore sought to have the state look into the matter.

Moore denied he had anything to do with it.

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