Luke Britt
Indiana’s Public Access Counselor has recommended in an advisory opinion that Bartholomew Consolidated School Corp. reconsider its school board public comment procedures after a complaint from a BCSC school board candidate.
Indiana Public Access Counselor Luke Britt issued an advisory opinion Tuesday on a formal complaint filed by Eric Grow, who is running for the school board’s District 4 seat. Grow filed complaint of an Open Door violation alleging that the board was limiting comments to items on the meeting agenda.
Britt said BCSC’s policy was “too narrow of an interpretation” of a state statute regarding public comment during school board meetings.
However, it should be noted that Britt’s advisory opinion does not constitute a legal ruling against the school board and does not mean BCSC has to change its procedures on public comment.
“It is just practical guidance and advice,” Britt said in an interview with The Republic. “Those opinions do influence policy a lot of times, but they are not a mandate. Just suggestions and recommendations.”
Superintendent Jim Roberts said he was surprised by Britt’s conclusion, as the school corporation believed its policy to be appropriate and reasonable under state statute. When recent legislation regarding public comment at school board meetings went into effect, the school corporation consulted with various legal counsel, both locally and across the state, and received confirmation that their policy was sufficient.
“I have talked to Luke Britt, the public access counselor, since this opinion has come out, and Luke assures me that this is not finding that our school board is out of compliance,” said Roberts. “It’s not a directive that we change the policy that we have. It’s just him issuing an opinion that perhaps can guide further dialogue around the way that policies are developed in relationship to the law that is new and everybody is trying to figure out at this point in time.”
The school board will review the advisory opinion and determine what next steps are “necessary and/or appropriate,” Roberts said. BCSC may also ask Britt to attend a board meeting and further explain his opinion.
Grow said he supports the conclusion that Britt came to and that while it is just an opinion, he believes it “carries weight.”
“I think it’s disappointing that such an issue had to be taken to the state level to have it properly addressed,” he said. “It’s my hope that we can get back to the community. And I’m worried about a challenge of the opinion from our current board. I think it would be very irresponsible. They’ve already likely spend thousands of dollars of BCSC taxpayer money in legal fees to refute the claim that parents and community members should be able to publicly address their elected school board on relevant issues. And we don’t need the potential for more of our money to be spent on lawsuits.”
According to the advisory opinion issued by the public access counselor, Grow filed a formal complaint on Aug. 16 alleging that the school board violated Indiana’s Open Door Law by limiting public comment to agenda items.
Grow, who later filed to run for school board on Aug. 24, has spoken at a number of board meetings on topics such as COVID-19 policies, masks, transparency, communication and inappropriate materials in school libraries. As noted in the advisory opinion, on May 9, 2022 and “several instances since,” the board denied his request to discuss “curriculum” since it was not on the agenda. Grow said he interprets the term as referring both to in-classroom curriculum and library materials.
The board filed a response to Grow’s complaint with Britt on Sept. 19, stating that its policy is consistent with a recently implemented state statute on school board public comment policies.
That response includes more than 20 different instances of responding to Grow in board meetings and outside of meetings, and the responses that were given to him, including naming each BCSC official who corresponded by email, or met with Grow for in-person meetings.
In one of the responses, after BCSC administrators had responded to Grow multiple times about his complaints about certain books in school libraries, the administrators said he began directly emailing librarians and school principals.
The response states, “January 25, 2022: Complainant (Eric Grow) sent an email to school board members (excluding Dr. Roberts) on the topic of materials in the school library. School board member, Todd Grimes, responded to Complainant on January 26, 2022. Mr. Grimes provided information that was previously shared with the Complainant regarding the school’s process for requesting a review of School material and scheduled an in-person meeting with Complainant. After this date, Complainant began sending emails about materials in the school library to secondary school librarians and building administrators.”
The school board also stated that it had “engaged with Grow in alternative ways to address his concerns.”
As stated in the statute, “A governing body (of a school corporation or school) may adopt reasonable rules to govern the taking of oral public comment at a meeting. However, the taking of oral public comment on a topic must occur before the governing body takes final action on the topic. The governing body may set a limit on the total amount of time for receiving oral public comment on a topic. Nothing in this section prohibits a governing body from taking reasonable steps to maintain order in a meeting, including removal of any person who is willfully disruptive of the meeting.”
In considering the matter, the public access counselor wrote that agendas for public meetings are “completely optional” and that the law does not place requirements on what agendas must look like or include.
“Therefore, if an agenda is perfunctory, or only lists generic action items – or if one is never used at all – the public must guess what topics they are allowed to address and what might be off-limits for that particular meeting,” said Britt. “Moreover, a school board may very well choose never to include on the agenda uncomfortable or controversial items at all, freezing out viewpoints with which they disagree. The purpose of the new legislation is to give a space to parents and community members to engage their representatives, even if outlying voices can sometimes be misinformed or occasionally ill-intentioned.”
BCSC has a detailed agenda that is released several days before its meeting and is also posted at the administration building, which meets the requirements of Indiana’s Open Door Law as far as meeting notification.
Britt also said that BCSC’s three minute limit per person on public comments is a “a short time to absorb public input – including undue scrutiny.”
The counselor went on to say that “listening exercises” can be beneficial to boards and present an opportunity to address misinformation. Conversely, he added that “neutering public comment often leads to more agitation and can court more vague legislation.”
Britt added, however, that public comment should not be a free-for-all; the topics presented should be on issues that the board has the authority to address. Boards can also place rules on the manner in which comments are given and restrict “disorderly behavior, unduly repetitive comments or disruption.” The comment period, he said, should be “decorous and business-like.”
Additionally, Britt found in his advisory opinion that the school corporation has “gone to significant lengths” to engage with Grow.
“It could very well be determined that his ongoing comments and approach could be considered repetitious at subsequent meetings,” Britt wrote of Grow’s repeated interactions with BCSC. “Therefore, this opinion is not a referendum on how the board has addressed Grow specifically, but rather on its policy generally.”
When asked how he felt about this assessment, Grow said that it’s fair in its context.
“At our local level, the point I’ve been making to the board is no one’s refuting my claims,” he said. “No one’s having the discussion. So in the context of Britt’s remark, I think that’s completely — it’s accurate. But my argument would be we need to have the discussion about it. I need to stop just talking at you, and we need to have thoughtful conversation so that we can bring about our best for BCSC.”
The school board’s next meeting is Monday at 6:30 p.m. in the Terrace Room the administration building. It will also be livestreamed via YouTube. Items of note on the agenda include a report on enrollment numbers and consideration of the 2023 budget, a bus replacement plan, tax rates and tax anticipation warrants for next year, among other items.
Roberts said that he does not expect a change in board procedure for public comment for Monday’s meeting, as changing the policy would require a time of review to see what needs to be included, as well as two readings for approval of the revised policy.
