WHAT EXACTLY IS THE OPEN DOOR LAW?
The Indiana Open Door Law (ODL) was passed by the Indiana General Assembly in 1977 with the intent that all public entities give public notice of all meetings and take action in meetings open to everyone. The rationale behind the ODL is that when the public has an opportunity to attend and observe meetings, and when the public can witness government in action, the public may more fully participate in the governmental process. The ODL is found at I.C. § 5-14-1.5.
Since its passage in 1977, the ODL has been a great source of litigation and confusion. I don’t think there is any doubt that overall the ODL has good intentions and purpose. Problems arise when people, personalities and fact patterns come into play. This article will look at some common questions and issues surrounding the ODL.
The ODL applies to any “public agency” in the State of Indiana. The term public agency is defined very broadly by the ODL and includes any boards, commissions, departments, agencies or other entitles which exercise a portion of the executive, administrative, or legislative power of government. Also if an entity is subject to a budget review by the Department of Local Government and Finance, or is subject to an audit by the Indiana State Board of Accounts, then it is subject to the ODL. It should be noted that the mere fact that an entity receives tax dollars does not necessarily mean that the entity is subject to the ODL. Various factors come into play and must be looked at before making a decision whether an entity receiving tax dollars is subject to the ODL.
As a general rule, all meetings of a governing body of a public agency must be open at all times so that members of the public may observe and record them. A meeting is defined under the ODL as a gathering of a majority of the governing body of a public agency for the purpose of taking official action. This seems pretty straight forward. However, the ODL also lists types of gatherings that are not considered a gathering including, a social or chance gathering not intended to avoid the requirements of the ODL, an on-site inspection of a project or program, traveling to and attending meetings of organizations devoted to the betterment of government, a caucus, a gathering to discuss an industrial or commercial prospect that does not include conclusions as to recommendations or decisions, an orientation of members of the governing body on their role and responsibilities and a gathering for the sole purpose of administering an oath of office to an individual.
The ODL also makes exceptions for some types of meetings that are not required to be open to the public. These exceptions are called executive sessions and are not open to the public. For example, if a governing body of a public agency needs to get together to discuss how to handle litigation which has been filed against it, then there is an exception. A public notice must still be given of an executive session and the notice must state the subject matter of the meeting by specific reference to the executive session exception.
Except for emergency meetings as defined by the statute, public notice of the date, time and place of any meeting, executive session or any rescheduled or reconvened meeting must be given at least 48 hours (excluding Saturdays, Sundays and legal holidays) before the meeting. Public notice of a meeting is generally given by posting a copy of the notice at the principal office of the public entity or at the building where the meeting is to be held, and by delivering notice to all news media which have requested such notices.
The ODL also covers how public meetings are to be conducted. The ODL also does not allow serial meetings of governing bodies. A serial meeting is defined as a series of smaller meetings held by a governing body with no quorum present in an attempt to avoid the requirements of the ODL. In addition, a governing body is not allowed to start a public meeting, interrupt the public meeting to hold an executive session, and then continue on with the public meeting after the executive session.
Contrary to commonly held thought, the governing body of a public agency is not required to use an agenda, but if it chooses to use an agenda, the agency must post a copy of the agenda at the entrance of the location of the meeting prior to the meeting. In addition, the public agency must describe each agenda item specifically during a meeting and may not refer solely to an agenda item by number. The ODL does not prohibit a public agency from changing or adding to its agenda during the meeting.
If you miss a public meeting and want to find out what happened, you can obtain a copy of the meeting memoranda. The ODL requires that a memoranda be kept as to the date, time and place of meeting, the general substance of all matters proposed and discussed, and a record of all votes taken. There is no requirement in the ODL for a public agency to keep minutes of its meeting, but my experience is most public agencies keep minutes. Minutes of any meeting are open for public inspection and copying.
The ODL does not set out how procedurally votes are to be taken, but does prohibit taking votes by any secret ballet. A citizen has the right under the ODL to be present at a public meeting (excluding executive sessions) and to record the meeting by video tape, short hand or any other method of recording subject to reasonable restrictions that may be adopted and imposed by the governing body. Although most public entities allow for public comment at a meeting, allowing public comment is not required under the ODL and a public entity has the right to impose parameters and restrictions on public comment.
This State of Indiana has created the office of the Public Access Counselor (PAC) to assist the public in issues surrounding the ODL and the Access to Public Records Act (APRA). While the ODL deals with public meetings, APRA pertains to rights and restrictions on public access to public records. The job of the PAC is to provide informal or formal advice, but the advice is not binding on public agencies. Any person may seek an opinion from the PAC on whether a public entity has complied with the ODL. Likewise, any person can file a lawsuit alleging violation of the ODL. If an individual seeks and receives an opinion from the PAC prior to filing a lawsuit, and then prevails in the lawsuit, a Court can award to that individual reasonable attorneys fees, court costs and reasonable expenses of litigation.
The Indiana General Assembly made changes to the ODL (some effective July 1, 2012) that effect, among other things, allowing a public agency to give electronic notice of meetings, allowing a member of a governing body to participate in a meeting by electronic means if certain conditions are met, and assessing possible civil penalties against officers/management employees of a public agency for defined violations of the ODL. These possible penalty provisions were a source of much discussion between public agency officials over the past several months. Time will tell if these tougher ODL provisions are effective in meeting the goals of the ODL, or are much ado about nothing.
The ODL serves an important function in the State of Indiana. The ODL prevents government from acting in a secretive manor and helps to insure that a public agency is held accountable to its citizens.
This article is written and published for information purposes only. It is not intended nor is it to be used as a substitute for independent legal advice. Stu Weliever practices law with HENTHORN, HARRIS & WELIEVER, P.C., Crawfordsville, Indiana, and can be reached at (765) 362-4440 or at stuw@henthornlaw.com.
