For years, stretching back a decade, the list at the end of every meeting agenda went on and on.
The Johnson County Commissioners outlined multiple reasons why the three-member elected board could be meeting privately at the end of a public meeting.
Nearly every possible reasoning that the law allows was included, giving the public the impression that each week the board that manages county government — taxpayer money, property and business — was dealing with a lawsuit, investigating an employee’s wrongdoing, buying land and more.
But state law says that public boards, such as school boards, town councils, city councils and the commissioners, have to outline the specific reason for an executive session, and simply listing every possible reason for blanket coverage is not allowed.
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The practice was recently ended. The change came after a Daily Journal reporter questioned county officials on the practice for the second time in more than a decade. And county commissioners and the county legal team want to make sure that their practices meet the requirements on the law, they said.
The process now is that the commissioners outline on the agenda the specific reason an executive session — where the public’s business is being conducted in private — is scheduled, without other reasons listed, which was not the case in previous instances.
The county is always looking for ways to serve the public better and had recently reached out to the state’s public access counselor to discuss the county’s method of advertising executive session meetings, county attorney Kathleen Hash said.
The Office of the Indiana Public Access Counselor gives advice and assistance concerning Indiana’s public access laws to the public and government officials and employees. Gov. Frank O’Bannon created the office in 1998 after a statewide collaboration of seven newspapers found great obstacles in obtaining government information in Indiana.
A years-long practice
Executive sessions are meetings about public business that are conducted in private. The law allows for government entities to meet in executive sessions for multiple reasons, including to evaluate employees and to discuss litigation, which are reasons the commissioners’ meeting agenda always listed.
Most of the executive sessions in recent years have been to discuss personnel issues or pending litigation and none of the discussions in executive meetings have diverged away from issues that are not allowed by state law, Johnson County Commissioners Ron West and Kevin Walls said.
The commissioners manage about 500 employees across all county offices, so personnel issues come up frequently, as do litigation issues the commissioners must grapple with, West said.
Commissioner Brian Baird declined to detail the general subjects of executive sessions, but said the county’s legal team makes sure there are not discussions in executive session that are outside of what is allowed by the law.
“It is always what is listed, we don’t do anything else," he said.
Failing to specify the topic they were calling an executive session for in writing at the time of the meeting notice is a violation of state law, according to Hoosier State Press Association attorney and executive director Steve Key and Kristopher L. Cundiff, the Deputy Public Access Counselor for Indiana. The Daily Journal is a member of the press association.
The law requires that government entities inform the public why they are meeting in private, even if the meeting is not open to the public, which is the case in executive sessions, Key said.
Listing multiple possible reasons why they could be meeting privately without specifying which reason did not meet the requirements of the law, he said.
"It obviously doesn’t fulfill the requirement of the statute," Key said.
Commissioners did not always meet in executive sessions, even when an executive session was listed on the agenda. When executive sessions were conducted, a county commissioner would verbally tell those in attendance why they were meeting in private, Hash and West said.
In most agendas dating back to at least 2012, the executive session was scheduled to happen immediately after an open commissioner meeting, which means people attending the meetings received a few minutes notice on the specific reason why the commissioners were meeting in an executive session. Also, commissioner meetings typically happen in the middle of a week day and are usually sparsely attended by members of the public.
"If you are giving it verbally, the only people who know the reason for the meeting are the members of the public who actually attended the meeting," Key said. “That is not the requirement of the statute."
Meeting agendas are always sent out with plenty of notice, Hash said. The previous county attorney also evaluated the law and practice and determined that it was appropriate, Hash said.
"It is the way it has been done for 20 years," she said.
The practice of listing every reason why an executive session could take place at the end of every agenda has been a standard practice on commissioner agendas in nearly every available agenda since 2012, which is the earliest year agendas are available on the county’s website. But newspaper archives and the county attorney say that the practice predates 2012.
That practice goes against the spirit of the law, Cundiff said.
"The whole idea is to put the public on notice about why the governing body is meeting in closed session," Cundiff said.
In 11 instances since 2012, the commissioners included the specific reason why they were meeting in executive session. However, multiple other reasons for a private meeting were listed at the end of every agenda.
Making changes
The Daily Journal published a story in December 2008 that called the practice into question and a then-newly elected commissioner pledged that the practice would end.
The practice predates every current sitting commissioner and the county attorney, who has been on the job since January 2009, and has been the routine way the commissioners have communicated executive sessions to the public for at least the last decade.
All the commissioners said they did not scrutinize the practice when taking office and that they relied on the county’s legal counsel to make sure they were operating within the statutes of the open door laws.
"I don’t think anyone paid any attention to how we were announcing or advertising it," West said.
Now, following questions from a Daily Journal reporter, the practice has ended.
West contacted Hash after being questioned about the practice. Hash then reached out to the state’s public access counselor. Every agenda since then has listed the exact reason why executive meetings are scheduled, if one was scheduled.
“Whatever we are supposed to be doing, obviously we want to be doing it right," West said.
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Indiana Open Door Law regarding private meetings
What is an executive session? Indiana law outlines when public boards, such as school boards, city councils or the county commissioners, can conduct an executive session. Executive sessions are closed the the public.
When are they allowed? Executive sessions can be scheduled for collective bargaining, initiation of litigation or litigation that is either pending or has been threatened specifically in writing, implementation of security systems, the purchase or lease of real property up to the time a contract or option to purchase or lease is executed, school consolidation, interviews and negotiations with industrial or commercial prospects or their representatives, to receive information about and interview prospective employees, to receive information concerning an employee’s alleged misconduct, to discuss confidential records, to discuss a job performance evaluation of individual employees, develop a list of prospective appointees for a position, to train school board members or to discuss information meant to prevent the threat of terrorism.
What about making a decision? All final action must be taken at a meeting open to the public.
How does the public know? The public has to be given notice that an executive session has been scheduled. The law says: "Public notice of executive sessions must state the subject matter by specific reference to the enumerated instance or instances for which executive sessions may be held."
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History of executive sessions
In December 2008, the Daily Journal published a story about the county commissioners conducting executive sessions — and how the public was given any inkling as to the nature of the meeting.
Here’s an excerpt:
Every week, county commissioners talk in a private session about misbehaving employees and pending litigation and interview people to fill county positions.
At least, those are the reasons for conducting an executive session as listed on the three-member board’s agenda.
Since March 2007, commissioners have listed on their weekly agendas four reasons as per state law that they are scheduling a closed-door meeting.
But it is highly unlikely that the elected officials talk about all of those issues on a weekly basis, a legal expert said.
The commissioners each week schedule a blanket executive session that covers all possible reasons the three-member board could meet in private. Executive sessions are meetings about public business that are conducted in private.
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