Discussion inappropriate

Jay County Commissioners’ discussion of a proposed contract with Jay County Development Corporation during an administrative meeting violated Indiana’s Open Door Law.

Indiana Public Access Counselor Luke Britt in an advisory opinion issued Wednesday afternoon said commissioners’ discussion of the contract was inappropriate for such a meeting.

“It is the opinion of this office that discussions or negotiations of unexecuted contracts is not appropriate for an administrative function meeting,” said Indiana Public Access Counselor Luke Britt in his conclusion.

When the newspaper contacted commissioners president Chad Aker for comment Wednesday afternoon, he said he had not yet seen the advisory opinion. The newspaper also left a voicemail message for county attorney Wes Schemenaur requesting comment.

The advisory opinion stemmed from a complaint filed on behalf of The Commercial Review by Ray Cooney, its president, editor and publisher. The newspaper alleged that commissioners Brian McGalliard, Rex Journay and Aker violated the state’s Open Door Law regarding an administrative meeting held on May 2 during which they discussed the proposed contract with Jay County Development Corporation (JCDC).

During the May 2 “administrative meeting,” commissioners discussed a contract under negotiation with JCDC. Journay sent an email to JCDC executive director Travis Richards that laid out contract stipulations including that the organization’s budget be returned to county control, board membership be reduced from the current 25 to between nine and 11, and Richards’ contract not be renewed.

Typically, 48 hours notice to the public and the media is required for meetings, with some exceptions for administrative functions. No notice was provided regarding the May 2 meeting.

The Commercial Review asserted that discussion of the proposed contract with JCDC is not "routine" and is not "reasonably related to the everyday internal management of the county,” as required by Indiana Code for discussion at an unadvertised administrative meeting. In an editorial on May 11, the newspaper asked that commissioners acknowledge the violation and commit to avoiding any future violations.

County attorney Wes Schemenaur during the May 13 commissioners meeting responded to the editorial, saying state code “expressly makes the negotiation of contracts on behalf of the county an executive or administrative function.” He compared county commissioners’ roles to those of a mayor, noting they routinely negotiate contracts before bringing them to a vote before the appropriate body. Those preliminary discussions are not always occurring while the public is present.

"The county commissioners are no different just because there are three executives instead of one," he said.

The response was submitted to the newspaper, and published, as a letter to the editor signed by the commissioners.

The Commercial Review subsequently filed its formal complaint with the public access counselor’s office on May 14. Commissioners submitted their response to the complaint on June 12.

Addressing the issue of contract negotiations in his analysis of the newspaper’s complaint, Britt writes:

“While it is true negotiation of contracts are matters within the purview of the county executive pursuant to Indiana code section 36-2-3.5-4(a)(9), that does not qualify any action an executive may take as ‘administrative.’

“The law does not explicitly cite ‘contract negotiations’ as off-limits in its non-exhaustive list of prohibited activities. Similarly, it does not cite discussions of litigation strategy, personnel performance and discipline, real estate transactions, etc. That is because other statutes address those things, contracts included.” 

He also points out that there is an executive session statute that expressly addresses negotiations.

Britt references that “a 2-1 decision was made,” as indicated in the email from Journay to Richards.

“If accepted, it would have bound the County to certain terms and had both operational and fiscal ramifications,” he says. “There is nothing routine or administrative about such an action. “

Britt notes that the Indiana General Assembly mandated that the state’s Access to Public Records Act “be liberally construed” in favor of transparency.

He points out that when language regarding administrative function was amended in 2019, one of the informal questions asked was, “would a reasonable member of the public have a legitimate interest in having notice of the discussion?” If that answer is “yes,” Britt says, and it does not fall into an executive session or any other non-meeting definition, the meeting should be public. 

The public access counselor is appointed by the governor. As part of his job, he "provides advice and assistance concerning Indiana's public access laws.” Opinions issued by the public access counselor are advisory in nature. To pursue further action, the issue would need to be taken to the court system.