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By Marilyn Odendahl

The Indiana Citizen

March 5, 2024

Indiana Senate Republicans on Tuesday approved a bill, which included provisions that they say will “provide some direction” to the state’s public access counselor – but which their opponents contend will hamstring the work of the appointed official.

House Bill 1338, which lets local governments adopt and enforce rules of decorum for public meetings, was amended by the Senate Corrections and Criminal Law Committee on Feb. 27. The new language, introduced by Sen. Aaron Freeman, R-Indianapolis, mandates that the public access counselor only consider “plainly written” public access laws and “valid” Indiana court rulings when writing the advisory opinions.

The public access counselor is a nonpartisan state official who offers nonbinding opinions that do not carry the weight of law on issues related to Indiana’s public records and open meetings laws. Luke Britt is now the state’s longest-serving public access counselor, appointed by former Gov. Mike Pence in 2013 and reappointed twice by Gov. Eric Holcomb.

Another GOP-backed amendment, also added to HB 1338, will change the counselor from serving a fixed, four-year term to serving at the pleasure of the governor. Under this provision, the governor will be able to remove and replace the counselor at any time.

HB 1338 advanced out of the Senate on a 40-to-8 vote with Republican Sen. Mike Bohacek of Michiana Shores joining the Democrats in voting against the legislation. The bill, authored by Rep. J.D. Prescott, R-Union City, now goes back to the Indiana House.

Its Senate sponsor, Sen. Scott Baldwin, R-Noblesville, said Tuesday while presenting the bill that “there’s been a lot of dialogue” about whether the opinions that have been issued by the public access counselor have been “consistent with his handbook or not.”

“All we’re trying to do here is provide some direction, so that he has the ability to do his job without having to take major leaps and bounds on interpreting gaps in the (Indiana) Code,” Baldwin said.

Advocacy organizations have been opposing the new language.

Zachary Baiel, president of the Indiana Coalition for Open Government, said he is encouraging his group to call their representatives and senators to express their concerns. Also, he is telling his organization’s members to contact Gov. Eric Holcomb and ask him to veto HB 1338.

“I still don’t understand … (the) legislators saying they don’t like the opinions. Well, join the club,” Baiel said. “We all get opinions we don’t like (from the public access counselor), but that forces everyone to be sharper the next time, to be more precise, to hone your strategy.”

Sen. Rodney Pol, D-Chesterton, questioned Baldwin on the Senate floor to identify the opinions that had spurred the push for the new restrictions on the public access counselor. Baldwin said he did not have the specific citations at hand, but added he had received a lot of complaints, some of which were concerns about the public access counselor’s opinions over school board meetings in Carmel and “a variety of others.”

Baldwin’s office did not respond to a request from The Indiana Citizen for the specific opinions.

Pol also pressed Baldwin about the amended language. The Chesterton Democrat said under “strict constructionist” interpretation, the public access counselor would not be able to look in a dictionary, cite to a federal court ruling or possibly even consult materials stored in a cloud-based platform that is not defined in the statute.

Baldwin disagreed. He said the counselor could look at a dictionary or other “mainstream things” to determine the meaning of a word, but looking to case law from Michigan courts, for example, would not be permitted.

“I don’t believe we’re restricting the public access counselor any more than the intent of this bill, which is ‘plainly written’ (statues),” Baldwin said, noting what the counselor can consider when writing his opinions. “I’m not saying there’s not going to be gaps. I’m just saying that we’re asking him to be more strict in his analysis.”

However, Republican Sen. Mike Young of Indianapolis also questioned Baldwin about the language in the new provision. Specifically, Young pointed to the requirement that the public access counselor consider only “valid” opinions from the Indiana courts and asked what that means.

“I don’t know what a valid opinion (is),” Young said. “I may not like an opinion, but unless it’s been overturned, it’s valid.”

Young then asked that the word “valid” be removed as work on the bill continues in the House.

Dwight Adams, a freelance editor and writer based in Indianapolis, edited this article. He is a former content editor, copy editor and digital producer at The Indianapolis Star and, and worked as a planner for other newspapers, including the Louisville Courier Journal.

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