City wrestles with transparency: Critics attack administration on Open Door Law, public-records inquiries

City officials are disbanding three Columbus Redevelopment Commission subcommittees after ongoing challenges over whether the subcommittee meetings are covered by the state’s Open Door Law.

“All we’re trying to do is figure out the rules and follow them,” said Columbus Mayor Jim Lienhoop, who has prepared a draft statement on public access that is being finalized and may be read at today’s 4 p.m. Columbus Redevelopment Commission meeting.

The mayor’s action is in response to repeated complaints and requests for information about redevelopment commission activities from Kristen Brown, the city’s mayor from 2012 to 2015 who was defeated by Lienhoop, and some of her supporters.

Brown and Columbus resident Ken Fudge have filed numerous public records requests and public access complaints against the Lienhoop administration since he took office in 2016.

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In October of that year, Lienhoop took the unprecedented step of reading a statement accusing Brown and some of her backers of abusing the public access processes. Lienhoop said at the time that Brown and her supporters had filed 24 public information requests with the city and also filed seven complaints with Indiana Public Access Counselor Luke Britt.

The lion’s share of the complaints came from Brown, Fudge and David Jones, who had been appointed by Brown to serve on the Columbus Park Board.

“The cost to those who complain and object is next to zero,” Lienhoop said in 2016. “The cumulative cost to our city to respond to these is in the thousands of dollars.”

Public-records campaign

After returning to her hometown of Columbus after a career in the software industry, Brown’s interest in local government activities was the catalyst for her records requests.

Brown began criticizing city spending by the administration of Mayor Fred Armstrong, a Democrat, in 2010. That included some run-ins with city officials, including Clerk-Treasurer Brenda Sullivan, whose job included maintaining the city’s public records.

After scooping up some city documents and taking them — by mistake, said Brown, who promptly returned them — Sullivan asked that a criminal investigation be launched. By that time, speculation has developed that Brown was considering a run for the mayor’s office, which proved to be accurate. Armstrong did not seek re-election and Republican Brown was elected the following year with a platform that touted transparency of local government.

After her four years in office, Brown continued her watchdog activities, focusing on public records and the state’s Open Door Law.

Brown filed suit in February 2017 against Columbus Police Chief Jon Rohde, for example, claiming he failed to comply on a timely basis regarding a public-records request regarding an accident involving the Bartholomew County Jail commander. Brown said she had spent thousands of dollars in this matter on legal fees, which she is seeking to recoup in her lawsuit.

Recent complaints

In the most recent records complaint filed against the city, Fudge maintains that the redevelopment commission is not making its committee meetings public in spite of a October 2016 opinion from Britt, which said the committees were taking official action on public business and were subject to the state’s Open Door law, which requires that government meetings be open and that their dates and times be announced in advance.

“I went to the last redevelopment commission meeting and asked that they follow the law and make these meetings open,” Fudge wrote in an email to the Republic. “Not one of the commissioners would respond to me.”

In his draft statement for the media, Lienhoop said the redevelopment subcommittees were created to help direct the commission’s State Street, Railroad and Riverfront projects.

The prepared statement notes that Britt’s opinion was that the committee and subcommittee meetings were subject to the Open Door Law, but that contradicted an opinion that the commission had previously received from its own attorney, Stan Gamso.

“However, following the receipt of that Informal Advisory Opinion (from Britt), public notice was provided for all of the subcommittee’s meetings,” Lienhoop’s statement reads.

The State Street subcommittee no longer meets as two different phases of the trail improvements are completed, according to the statement.

However, a third phase of the State Street Revitalization Project is being considered.

“Once this project reaches a point where a plan and estimated construction costs can be presented to the commission, the commission will consider whether to form a new subcommittee related to this project,” according to Lienhoop’s statement.

Public or not?

Lienhoop and Redevelopment Director Heather Pope said that at times, both have referred to Pope’s meetings with groups of stakeholders on the State Street project as committee or subcommittee meetings, when the gatherings did not involve people appointed by Columbus Redevelopment President Sarah Cannon.

Since those attending were invited by the director, and not appointed by the commission president, the sessions were not public meetings and did not require advance public notice, according to Lienhoop and Pope.

Pope said she would be more careful of her wording in the future and not use “committee” or “subcommittee” when talking about meetings she has with community residents or stakeholders.

The railroad subcommittee has also disbanded as responsibility for this project has shifted to the Indiana Department of Transportation, Lienhoop said. INDOT officials meet from time to time with city engineer Dave Hayward and he provides updates to the redevelopment commission, the mayor said.

The Riverfront subcommittee has also completed its task, Pope and Lienhoop said.

“It reviewed several concepts for what should happen in the river area between the Stewart and Third Street bridges,” the statement reads. “It conducted several public meetings with constituents, retained consultants and recommended a project design to the commission.”

Lienhoop and Pope said the Riverfront project is ongoing and the city is coordinating work with consultants, working on applications to various regulatory agencies and coordinating with INDOT because of the railroad overpass project.

“The redevelopment director will meet from time to time with these consultants and regulatory agencies and a member of the redevelopment commission (or two) may attend,” the statement reads. “Again, the people in these meetings are not appointed by the redevelopment commission president, they are invited by the director. And again, as updates of this activity are provided to the commission, some may refer to these meetings as those of a committee or subcommittee, but that is for convenience only. They are not a meeting of the previously appointed Riverfront subcommittee.”

The statement says if Cannon determines that a subcommittee be appointed to review information or make a decision related to the Riverfront, the commission will follow the public notification process as it has done in the past.

City council briefings

The Lienhoop administration regularly meets with members of the Columbus City Council or the redevelopment commission to brief them individually or in small groups on city business.

In setting up these meetings, which are considered private, the administration is careful to avoid having a quorum — or majority — of members in attendance. That keeps the city from violating the Open Door Law, which requires advance notification and making the meetings open to the public.

“Look, we talk to each other,” Lienhoop said in an interview when asked why the council is briefed individually outside of public view.

The most recent examples are small-group, private meetings giving council members a preview of the 2019 city budget, which is being released this month.

“I try to talk to the city council as frequently as I can and keep them apprised of things like the city budget,” Lienhoop said. “I like for them to see the capital requests and what we expect to present. We reserve the right to talk to each other.”

In the Brown administration, there was little conversation between the mayor and councilmen, said Lienhoop, a city councilman before he was elected mayor.

“We want the council to be as informed as we can,” Lienhoop said.

Press Association reaction

It is laudable that a mayor wants to keep the city council informed of city business that his office or departments are conducting or contemplating, said Steve Key, Hoosier State Press Association executive director and legal counsel.

“And it appears he or his attorney have studied the Open Door Law because it appears he is careful not to cross the line into a serial meetings violation as defined in the statute,” Key said.

“My concern from a transparency point of view would be the impact of this practice on public discussion of items when the city council meets. Are items presented by the mayor voted upon with no discussion because all questions were answered in the private mayor-council member meetings?” Key asked. “If so, the public doesn’t really get a complete picture of the decision-making process, only a vote tally. They don’t learn what alternatives were discussed, what concerns were raised by their council, what arguments were made by the mayor to answer those concerns.”

Key also asked whether council members are losing out because they don’t hear the questions that may be raised by other council members who were briefed in a different session.

“That missed question might make a difference in the council’s vote,” Key said.

In addition to the complaint about the redevelopment committee meetings, Fudge submitted a formal records request to the city in late July seeking the “entire video — not the edited version on the city’s website, of the July 16, 2018 Columbus Redevelopment meeting.”

Lienhoop said the video would be turned over to Fudge as requested, but there is no edited version. What is on the city’s website is what the city has.

Key said state law does not requires a public entity to place video recordings of meetings on its website. If the city were to edit these videos, that would not be a violation of state law, he said.

Just as meeting minutes are not a taped recording of an entire meeting, a video may also be edited in any way the city chooses, he said.

There is also no requirement that the city provide an unedited version of a meeting video to a constituent, he said. Videos would fall under the auspices of public record retention requirements, not open meetings, he said.

Technical problems

Lienhoop acknowledged that the city had been having difficulties with its video recording equipment and that the equipment sometimes continued recording even after staff members turned it off — a malfunction the city is working with its vendor to correct.

The equipment issue resulted in recordings of several parks board members being videotaped discussing parks business after two meetings, and one of which included the entire parks board discussing ColumBike’s financial situation earlier this summer.

Parks and Recreation Department Director Mark Jones was told by parks attorney Michael DeArmitt that meeting with the full parks board after adjourning was an open meetings law violation.

When asked about the video of the meeting, Jones apologized that it had happened, saying it occurred in the heat of the moment and it would not happen again.

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“We want the council to be as informed as we can.”

— Mayor Jim Lienhoop on private, small-group briefings for city council members

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Indiana’s Open Door Law (Ind. Code 5-14-1.5) was passed by the Indiana General Assembly in 1977 and most recently amended in 2008, was enacted to permit the public access to meetings held by public agencies. The reasoning behind the law is that when the public has an opportunity to attend and observe meetings, the public may witness government in action and more fully participate in the governmental process.

The law states that a meeting is defined as a gathering of a majority of the governing body of a public agency for the purpose of taking official action upon public business. All meetings of the governing bodies of public agencies must be open at all times to permit members of the public to observe and record them.

A public access handbook is available online from the state’s Public Access Counselor Luke Britt. It is found at https://www.in.gov/pac/ and by clicking on “public access handbook.”

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Indiana’s Access to Public Records Act (Ind. Code 5-14-3) states:

“a fundamental philosophy of the American constitutional form of representative government is that government is the servant of the people and not their master. Accordingly, it is the public policy of the state that all persons are entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and employees. Providing persons with the information is an essential function of a representative government and an integral part of the routine duties of public officials and employees, whose duty it is to provide the information. This chapter shall be liberally construed to implement this policy and place the burden of proof for the nondisclosure of a public record on the public agency that would deny access to the record and not on the person seeking to inspect and copy the record.”

To access the details of the act, visit http://iga.in.gov/legislative/laws/2018/ic/titles/005#5-14 and click on Public Meetings and Public Records.

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To contact Indiana Public Access Counselor Luke Britt, visit the Office of the Public Access Counselor, W470, Indiana Government Center South, 402 W. Washington St., Indianapolis, IN 46204 or call (317) 234-0906 or (800) 228-6013.

The website is https://www.in.gov/pac/.

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