By Marilyn Odendahl
The Indiana Citizen
March 4, 2024
A bill allowing local government officials to remove disruptive individuals from public meetings has been expanded to include new limits on the Indiana public access counselor’s ability to offer guidance about the state’s open door and open records laws.
House Bill 1338, authored by Rep. J.D. Prescott, R-Union City, was amended in the Feb. 27 hearing of the Senate Corrections and Criminal Law Committee. The new language requires the public access counselor to consider only “public access law, as plainly written” and “valid opinions” from the Indiana courts.
Committee chair Sen. Aaron Freeman, R-Indianapolis, introduced the amendment. He told his committee colleagues the provision was needed because the public access counselor has “issued some opinions that I vehemently disagree with, and, I think, others in our body and in this building vehemently disagree with.”
However, a handful of senators on the committee and some public access advocates expressed concerns the amendment’s language will harm the effectiveness of the public access counselor’s office. Common Cause Indiana sent a letter to its supporters on Monday, warning the new provision in HB 1338 “will only hamstring (the public access counselor’s) ability to serve as an impartial referee for open and transparent government in the Hoosier state.”
Freeman’s amendment passed the committee with Republican Sens. Liz Brown of Fort Wayne and Sue Glick of LaGrange joining Sen. Rodney Pol, D-Chesterton, in voting against the provision.
During HB 1338’s second reading in the Senate on Monday, Pol offered an amendment that would have deleted Freeman’s addition. Pol said restricting the public access counselor to just state statutes and state court opinions might hamper an opinion on an issue because other sources, such as federal court rulings or even a dictionary, could not be consulted.
“I think the provisions that I’m providing here bring us back into a little bit more of a reasonable attempt to address what was the issue with the public access counselor’s opinions,” Pol said.
Sen. Scott Baldwin, R-Noblesville, sponsor of HB 1338 in the upper chamber, urged his colleagues to vote against Pol’s amendment.
“A liberal interpretation of our code is what led us to this point,” Baldwin said. “So we were very deliberate in saying that we wanted to have a strict interpretation of the code.”
The amendment was defeated on a voice vote.
HB 1338, in its amended form, is scheduled for a vote in the Senate on Tuesday.
Originally, HB 1338 did not contain any language about the public access counselor. Prescott said his bill would put into Indiana Code the ability for county commissions, city councils and school boards to adopt rules of decorum to prevent individuals from interrupting or stopping public meetings. The measure, he said, takes a three-strikes approach, allowing elected officials to give two warnings before having law enforcement remove a person who continues to disrupt the proceedings.
Zachary Baiel, president of the Indiana Coalition for Open Government, said the new language in HB 1338 would have a “chilling effect” on Indiana’s public access laws. Baiel, who spoke after the amendment had been passed by Freeman’s committee, said the bill, as it is now written, would allow public officials and governmental entities to evade Indiana’s open door and public records laws by claiming that state law does not specifically prohibit or require certain actions.
He said an individual asking for a copy of a visitors’ log from the mayor’s office could be denied permission under the new bill on the basis that the office has all visitors sign a guest list, rather than a visitors’ log.
“I think the law, outside of … some of the carve-outs that had been done on some definitions … it’s stood up because it was decently broadly defined,” Baiel said, explaining the legislature did not have to write every possible scenario into the Indiana Code. “The intent was to then be applied liberally to the situation, so (the law) wouldn’t have to be touched (by the legislature) all the time so you couldn’t weasel your way out.”
Freeman did not respond Friday to a request for comment.
A position created by the Indiana General Assembly in 1999, the public access counselor takes complaints and questions from the public and provides advice regarding the Indiana Access to Public Records Act and the Indiana Open Door Law. The nonbinding opinions cite to state statute and court rulings but do not have the power to compel a governmental body or agency to act.
Zach Stock, legislative counsel for the Indiana Public Defender Council, testified before the Senate committee and spoke in opposition to the amendment. He specifically noted the counselor already has limited power.
“The public access counselor’s opinions are not binding on anyone,” Stock said. “The Court of Appeals has said on multiple occasions that they’re going to follow their own course. So, if people don’t like the public access counselor’s opinions, they can go to court and, in fact, they can skip the public access counselor altogether if they want to.”
Baiel echoed that point, saying other states have stronger laws that give their public access counselor’s opinions almost equal weight as a court opinion. Still, the guidance offered by Indiana’s counselor provides valuable insight on the open door and public record laws, he said, so “they become a point of reference, because they are reasoned” interpretations of the law.
Along with the amendment limiting the materials the public access counselor can consult, Freeman also introduced an amendment that switched the counselor’s term. Instead of serving an appointed term fixed for four years, the counselor would serve at the pleasure of the governor, which would give the governor the power to remove and replace the counselor at any time.
The current public access counselor, Luke Britt, was first appointed by former Gov. Mike Pence in 2013. He has been reappointed twice by Gov. Eric Holcomb. He holds a law degree from the University of Detroit Mercy School of Law in Detroit, Michigan.
Pol also tried, unsuccessfully, to remove that language on the Senate floor, saying the intent behind the fixed term is “to ensure that there is come continuity” in the public access counselor’s office. The maneuver by the Chesterton Democrat to preserve the fixed term was included in his amendment to delete the language restricting the materials the public access counselor can consult, but it failed on a voice vote.
The quick dismissal of Pol’s attempt to retain the current provisions – the ability to consider any material when crafting an opinion and the fixed four-year term – in the public access counselor statute was in contrast to the sharp debate in the Senate committee, during which Republicans Brown and Glick and Democrat Pol spoke against Freeman’s amendment, expressing worry about the impact it could have on public access and governmental transparency.
Freeman rebuffed the questions and concerns from other lawmakers. He described the amendment as requiring the public access counselor to follow a “textualist” approach as championed by the late U.S. Supreme Court Justice Antonin Scalia.
“All we’re saying is, as opposed to liberally interpreting the code, (the public access counselor) shall confine himself to the plain language of the code and to the Court of Appeals and Supreme Court cases, that’s all,” Freeman said. “Nothing more, nothing less. That’s as simple as it is.”
However, Glick, the LaGrange Republican, saw the amendment as contradicting what the public access counselor is expected to do.
“You’re paying an attorney for their opinion and now you’re limiting that,” Glick said. “Because it’s specifically limited in the amendment, then anything they say above and beyond is going to be considered in violation of the statute. I don’t know why you would put that limitation on the attorney that you hired to represent you.”
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 IndyStar.com, and worked as a planner for other newspapers, including the Louisville Courier Journal.
