Opinion issued in Hamilton Southeastern Open Door complaint

The Indiana Public Access Counselor issued an opinion Sept. 13 on an Open Door Law complaint filed in late July against the Hamilton Southeastern Schools Board of Trustees. 

The complaint, filed by Andrea Bordenkecher, focused on a shared Google doc board members used to communicate with each other and school administrators. She alleged that board members used the online document to discuss changes to the district’s student handbooks before taking action at a public meeting, and that the online discussion violated the state’s Open Door Law. 

In his Sept. 13 opinion, Public Access Counselor Luke Britt fell short of agreeing the HSE board violated the law in this case but stated in his conclusion that “unless extraordinary circumstances apply, governing bodies should limit the use of online document editing technology to avoid violations of the Open Door Law.” 

Britt notes that the board doesn’t dispute the existence of the shared document. In its response to the complaint, he writes that the board “argues the superintendent created the document as a conduit of communication between the administration and board.”

Then-Superintendent Yvonne Stokes recently resigned her position with HSE. 

The board’s response to the complaint also argued that there were hours of open discussion regarding changes to the handbook prior to any board action, including input from the public. 

Britt states in his opinion that under the Open Door Law, a meeting is a gathering of a majority of a governing body for the purpose of taking action on public business. That action can be receiving information, establishing policy, making recommendations or making decisions. 

The complaint alleges that the shared document allowed deliberation outside of a public meeting. 

“This office agrees that the potential for abuse exists with such an arrangement,” Britt wrote in his opinion. “Past opinions have addressed the pitfalls of social media, virtual meeting platforms, texts, emails and other programs of which governing bodies avail themselves as an easy end-around to the heavy lifting of government transparency. Online document editors, as well as group chats, message boards, listservs, etc., probably have no place in the work of governing bodies given the restrictions of the Open Door Law, unless it is on a read-only basis.”

Shared online docs that allow editing in real time “is antithetical to the spirit of the Open Door Law,” he writes. “The better play is to delegate an individual to draft a working document and discuss potential amendments in public.”

Britt said it is unknown whether there was simultaneous editing of the document, but the document’s existence leads to an inference that the board conducted public business behind closed doors. 

He notes that any negative affect on the public appears to have been mitigated by public meetings before any vote took place. However, Britt said the concerns raised in the complaint were legitimate. 

The Sept. 13 opinion was the second one this year related to complaints filed against the HSE school board. A complaint filed in March by Michell Fullhart alleged that four members of the board — which constitutes a quorum — met behind closed doors following an executive session scheduled before a regular board meeting on March 8. 

The complaint alleges that during the regular meeting, the board voted with no discussion to terminate a vendor’s contract. Fullhart inferred that the board discussed the issue behind closed doors before the open meeting began. 

The board responded that the four members were simply “killing time” in between the executive session and the regular meeting and they did not discuss public business. 

In his opinion issued May 24, Britt said there wasn’t enough evidence to show that the board violated the Open Door Law. However, he wrote, “public perception is an important consideration of which all public officials should be mindful. 

“It is no secret that the newly elected majority of the HSE board has an aggressive agenda,” he wrote. “This office makes no value judgment as to ideology of public officials, but from experience can say that assertive plans tend to invite more intense public scrutiny. Accordingly, it is all the more important to ensure that procedural fidelity is maintained.”

Britt wrote that he hopes the board will pay closer attention to the letter and the spirit of the law, and said his office is available to provide guidance. 

In response to a request for comment, HSE Board President Dawn Lang sent a prepared statement, thanking Britt for his advisory opinion. 

“Prior to the opinion’s release, we proactively removed this form of communication from our practice,” she stated. “HSE’s school board and administration are committed to transparency and collaboration with the public.”