Davis said Ivy Tech's filings with her made clear that improper votes were taken, even if the board referred to them as determining a "consensus" instead of as a formal vote. She added, however, that she believed Ivy Tech didn't mean to break the law.
The nonbinding ruling came in response to a complaint filed by The Indianapolis Star after the March 22 meeting at which the board selected Thomas J. Snyder as the college's president. If a lawsuit were filed, a judge could void Snyder's selection because it was made improperly.
"This decision puts the Ivy Tech board and other boards on notice that state law clearly prescribes the conditions under which public business is conducted," said Dennis Ryerson, editor and vice president of The Star. "I'm shocked at how they tried to stretch, pull and push the law in a futile effort to justify what they did."
In the executive session, Ivy Tech's board discussed the search process, the two final candidates and the exclusion of an internal candidate, according to a timeline provided to Davis by the board's attorney, Richard A. Smikle.
After that discussion, Chairman William R. Goins polled the trustees to determine a "consensus" of whether to proceed with selecting a president at a public meeting later that day. Ten trustees were in favor, and four wanted to halt the meeting.
Eventually, Goins asked each trustee to share their thoughts on both candidates. Ivy Tech contends that this did not constitute a vote because there was no proposal to vote on and no motion made for a vote.
Davis, however, said that both times the board members expressed opinions they took "final action," which under Indiana law must be done in a public meeting instead of a closed-door session.
"It is my opinion that the actions taken to poll the trustees was final action," she said. "I do not find compelling the argument that there was no formal proposal or motion to select the president during the executive session."
The Board took its cue from its attorney, Richard Smikle, on how to proceed in the executive session according to one of the trustees. Kaye Whitehead told Gammil she believed she was being asked to cast a vote both times contrary to the school's position. "I don't know what else you would call them," she said. No one on the board intentionally broke the law, Whitehead said. They were following advice from their lawyer. "We were going by his guidance," she said. "He even counted. There was a show of hands, and he was asked to count and he did."
It's unclear whether Davis' ruling will have any impact on the ultimate outcome here. There's no indication the Board is going to reopen its selection process as the Governor's office would like it do, although it's decision could be voided if someone takes the Board to court. The Board could still wind up selecting Snyder even if it has to redo the process.