Daily Journal Masthead

Council accused of violating access law

Follow Daily Journal:

Seven members of the Greenwood City Council violated the Indiana public access law by meeting in private to discuss the aquatic center project, the state public access counselor said.

The city council met behind closed doors and without notifying the public to discuss the mayor’s criticism of the pool committee and to brainstorm about how to make a proposed aquatic center pay all its own expenses, including by raising the rates, council president J. David Hopper said.

Those discussions should have happened in a public meeting because residents have the right to hear about the aquatic center, Indiana Public Access Counselor Luke Britt said.

The meeting, which Hopper called a caucus, happened six hours before this week’s city council meeting and was the first time the board met since the mayor asked members to advise him on how to pay for a projected operational loss for the pool.

The council’s discussion Monday afternoon wasn’t political strategy and didn’t fit the purpose of a caucus, Britt said.

A caucus is for members of a political party to talk privately about whether a project or an issue fits within their political ideology, he said. Discussing a project and solutions to a problem is an official action of the city council, whether the members vote on the issues later or not, Britt said.

The public access counselor is appointed by the governor as the state’s expert on the Open Door Law and provides legal advice on public access laws to the legislature, local governments and residents.

“Coming up with ideas for how to solve a problem is taking official action. I can’t see it any other way. They’re just doing something that should be done in a public meeting,” Britt said.

Council members Bruce Armstrong and Ron Bates did not attend the meeting. Mike Campbell, Brent Corey, Linda Gibson, Ezra Hill, Hopper, Thom Hord and Tim McLaughlin attended the meeting.

Bates said he didn’t go because the topic of the meeting wasn’t included on the email invitation from Hopper, it didn’t fit his schedule, and residents should be able to attend meetings.

“It’s circumventing the people of Greenwood and (not) letting them voice their opinion,” Bates said. “It just kind of goes against the grain of transparency.”

Armstrong didn’t attend because he had to work. Had he gone, he would have left the meeting when he learned the topic, he said.

“Discussion to avoid public discussion is not appropriate,” he said.

A caucus was appropriate because the discussions were related to the Republican members of the city council, Hopper said. All of the city council members are Republicans.

“It was political strategy regarding the pool,” Hopper said. “I found it to be a useful tool to pass around ideas.”

A caucus is private, which is why only council members were invited and no public notice was given, Hopper said. The council made it private because they could, and he saw no reason why the city board wouldn’t have another caucus, he said.

“It was all in relation to the Republican portion of the council,” he said.

Many ideas were shared at the meeting, Hopper said, but he declined to describe most of them.

“You can talk freely and don’t have to worry about how anyone can misconstrue or twist their words around,” Hopper said. “We’re just trying to come up with ideas on how to make the pool hopefully break even from operations, so our expenses will equal our revenue.”

No city attorney or city council member asked the public access counselor what legally could be discussed during a caucus until two days after the meeting.

Talking about how to fund the aquatic center shortfall isn’t the same as discussing whether a pool project fits the ideals of the Republican Party, Britt said. The aquatic center is an important matter to residents and should be talked about publicly, he said.

“(A caucus) is more to develop the ideology of what they’re going to do as a political entity, not what they’re going to do as an elected board, in their capacity as board members,” he said. “Is the development of a water park good for us as a political entity? Does it coincide with the Republican Party’s ideology? That’s an appropriate conversation.”

The city council no longer has a vote on whether to build the aquatic center because the redevelopment commission controls the tax-increment financing district money that is paying for the construction. The city council eventually will have to determine how to pay for the staffing, utilities and other operational costs.

State law doesn’t clearly define political strategy, which is the purpose of a caucus according to Indiana law. But interpreted in light of the rest of the Open Door Law, what the city council did violated the law, Britt said. The Open Door Law requires that city boards take official action, including discussing city projects or problems, at public meetings, he said.

“(The point is) not to chill political speech or to hinder or deter people from talking about political agendas behind closed doors. It’s to make discussions of substantive public business open to the public,” he said.

Hopper invited the other eight members of the council to the meeting, calling it a caucus for talking about political strategy. Public notice of the meeting wasn’t given, but the mayor and city attorney Krista Taggart knew about it in advance.

Only city council members attended. Council members told the mayor they were having a caucus but didn’t tell him the topic, Mayor Mark Myers said.

At the meeting, the seven council members who attended talked about topics including the city’s $10 million aquatic center project and their disagreement with the mayor’s remarks about a committee formed by the city council to come up with a self-sustaining aquatic center plan, Hopper said.

The mayor recently asked the city council to advise him on how the city would cover an expected annual loss of $200,000 per year in aquatic center operational expenses and said the shortfall recently projected by a pool

engineering company wasn’t planned for because of the inexperience of the pool committee members and their failure to ask the right questions. Members of the pool committee, which included city council members Hopper, Hill and Hord, said they did ask the right questions of other aquatic center managers when researching pool parks, Hopper said.

Because only Republicans were present and the discussion was connected to the Republican members’ strategy related to the pool, the caucus was appropriate, Hopper said.

The goal of the Open Door Law isn’t to provide a caucus exception so officials can secretly talk about operations of the city, such as funding the pool project’s expenses, Britt said. City councils, such as the nine Republicans on the council, can meet privately in caucus, but their discussions must be limited to strategy as it relates to their political party,

he said.

“You can’t use a caucus as a means to get around public access. You can’t put a label on it and hide behind that caucus distinction,” he said.

If council members later gave the mayor advice based on discussions at the meeting, that would be another official action of the city board, Britt said.

The meeting met the definition of a caucus because only strategy and ideology related to the Republican Party were discussed, Hord and Campbell said. Hord would not elaborate.

Before the meeting, the council checked with the city attorney, and she consulted with the public access counselor, to be sure the council members followed the law when meeting for the caucus, Campbell and Hopper said. No one from the city spoke directly to the public access counselor before the meeting, and no council member told Taggart what the meeting topic was.

Taggart said she emailed the council members the state’s definition of a caucus but didn’t know what topics would be discussed. An attorney in her office, Kristina Glithero, called the public access counselor’s office Friday and asked paralegal Dale Brewer if city staff could attend the caucus, she said. Brewer told Glithero that only council members could attend.

Britt confirmed that someone from Greenwood had called Friday and spoken with Brewer about who could attend a caucus, but the woman didn’t identify herself or say she represented the city, he said.

The council doesn’t want residents to hear some of the ideas and then get mad if they don’t happen, Hopper said.

“Nobody wants somebody to be mad at them, but being an elected official means that sometimes you have to take heat,” Steve Key, executive director and general counsel of the Hoosier State Press Association attorney, said. The Daily Journal is a member of the association.

It’s possible Hopper misunderstood the law regarding caucuses, but the meeting was a violation of the Open Door Law regardless, Key said. The council didn’t have to caucus to give the mayor advice, he said.

“They could’ve each emailed their advice to him individually. Their excuses in my mind don’t seem to hold much water,” Key said.

The meeting was at 1 p.m. Monday at the The Hope Center in Greenwood, which is where The Refuge food pantry is located. Hord is chief executive officer of the The Refuge.

Think your friends should see this? Share it with them!

All content copyright ©2016 Daily Journal, a publication of AIM Media Indiana unless otherwise noted.
All rights reserved. Privacy policy.