Friday, April 06, 2007

Ivy Tech's Board Broke Open Door Law

The state's public access counselor, Karen Davis, has issued a formal legal opinion stating that Ivy Tech's Board of Trustees violated Indiana's open door law by taking an informal vote in executive session on the selection of Thomas Snyder to replace Gerald Lamkin as the school's president before it returned to an open meeting to formalize its vote. Davis' ruling was prompted by a request from the Star. The Star's Andy Gammil writes:

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.


Anonymous said...

Gary, you're an attorney...riddle me this:

How do so many lawyers get it wrong? Indiana's Open Door law pased in 1976. It was hard-fought then, but it's been around for 30-plus years. The erstwhile counsel for the Hoosier State Press Assoc. at the time, Dick Cardwell, predicted that this kind of nonsense would go on for awhile. but he also predicted attorneys would sooner or later get on board, and in 1 decade or so, all would be well.

Public boards everywhere are given lousy Open Door advice by their lawyers constantly.

Another little known provision of the law, secured by Mr. Cardwell, allows anyone to enter a court of jurisdiction, provide evidence of such polling in executive session, and the resulting action "shall" be declared void.

Of course, nothing prevents the Board from then doing it correctly.

A sad series of events at Ivy Tech. Carol D'Amico's suppporters are still ginning up support.

Gary R. Welsh said...

Anon, I'm not familiar with the Board's attorney or what his experience in this area is. I would have thought he would have been particularly on his toes, though, given the division within the Board. I wouldn't be surprised if this was the first time the attorney confronted this particular situation.

Anonymous said...

I have often advised entities subject to the open door and public records statutes. While both the letter and the spirit of the law are clear public bodies constantly resist the clear meaning. However, in this case Mr Smikle advised incorreclty if he permitted a straw vote in the circumstances described. However, since the remedy to the error is immediate; that is, a public vote, the error is nearly meaningless.

What the public really loses is the opportunity to witness the debate and discussion. This is not likely to change in sensitive personnel issues. In fact, over the years the law has been waterd down as it realtes to personnel decisions.

So unless the governng body is willing to take "offical action" in a transparent manner within the spirit of the law, nothing wil change and the public will not be well served.

If, on the other hand, candidates were subjected to having their qualifications openly debated, quality candidates would decline the opportunity. The IU and Purdue search committees have manged to avoid all this controversy with ease.

I knew Dick Cardwell. He was a frind of mine. He well understood voluntary compliance was a steep hill to climb. That's why the preamble reads as it does as well as providing attorneys fees.

As to Smirkel,he may have been a first timer but his firm is not. Ice Miller.

Wilson46201 said...


Anonymous said...

Why then is it so difficult for a legal practicioner to step up and say, on the Open Door issue, "I am not clear on your options here...let me get clearer input from another lawyer" ?

Vanity, ego, testosterone, whatever.

The remedy is another vote, in public.

The sideshow is, that Mitch and his cronies wanted that public education-hater Carol D'Amico to get the job, and she didn't. No tears shed over that, but...

You've got to do it right.