Editorial on Illegal Republican Caucus

The News Sentinel had a fantastic editorial yesterday about open government and how it relates to the illegal caucus held by the Republican majority on city council. As readers know, a new public advocacy group called Fort Wayne Public 1 has filed a formal complaint with the Indiana Public Access Counselor regarding this caucus. The NS rightly points out our state's open door laws are lacking enforcement mechanisms but they can still be effective at keeping government open and transparent. I've posted an excerpt below but go read the whole thing:

Consider a recent controversy involving Fort Wayne City Council Republicans, who hold a 5-4 majority. They met in a “caucus” this year before a regular council meeting to discuss “recommendations” for appointing council members to certain positions. Council Republicans have been doing this for years, with little attention being paid.

But this year, council Democrats complained, and a new open-government group has filed a complaint with the public access office: When those caucusing also constitute a majority of the legislative body in question, the recommendations in the private meeting become de facto public policy decisions.

The complaint has merit. Whatever the ruling on the letter of the law, the practice certainly violates the spirit of the law.

Without the law, we wouldn't even be talking about this. With it, public awareness is raised, and public opinion can be mobilized. The practice is likely to change, with more open government being the result. Citizens will know more about how their business is being conducted.

That's not too bad for a toothless law.

The need for open government is one idea that all media can agree on...

Citizen Asks Public Access Counselor for Opinion on City Council Caucus

I previously reported about the contentious start for our new city council. The gist of their debate revolved around the long term practice of letting the majority decide the council president and commission representatives via party caucus instead of a open public meeting.

Last Tuesday councilman Tim Pape challenged new council President Tom Didier to end this practice and start the new era with a spirit of bipartisanship and open government. Didier not only refused, but also became angry with Pape after he said that making these decisions behind closed doors was a "poor process". Didier went on to say that they have done it that way for years and it was their right as a majority to continue the practice.

Now local resident Dan Jehl has written the Public Access Counselor and asked for her opinion regarding the legality of caucus process as it relates to selecting council positions that ultimately must be voted on by the entire counsel. You can read his request for an informal opinion below:

PAC Counselor,

These questions are hypothetical and based upon unverified newspaper articles. Please provide responses to help assist in clarifying the Open Door Law.
A public meeting was held with decisions made, including recorded voting, that fall under the purview of the Act, specifically the election of a council president and the selection of committee members of a governmental body
.
Prior to the public meeting, a private caucus was held to make these decisions. This meeting was not open to the public or media, and was limited to party caucus officials.

The agenda for the public meeting was published prior to the meeting and stated the new council president and the committee chairs and co-chairs by name and title. The actual public meeting was then held. The party majority which party held the caucus then ratified the decisions already made and publicly admitted that the decisions were already made in party caucus.

At the official public meeting, a party majority vote prevailed in the selection of the prior-meeting chosen council president. The new president then appointed the committee chairs and co-chairs. Then motions were made and votes recorded to appoint committee members. In each instance, the party majority prevailed with the prior meeting decisions thereby being made official and ratified.

With this context, here are the questions.

1. Are the Open Door Law Public Notice requirements met with use of an agenda serving as the public notice which: a)is undated as to day of posting and b)which explicitly reflects decisions made in a previously-held party caucus non-public meeting?

2. Was the party caucus meeting itself a violation of the Open Door Act with decisions made by public officials and then later made official at a public meeting?

3. Did the published agenda meet the agenda provisions of the Open Door Law given that it reflected the new President and Committee Chairs by name and title decided at the non-public party caucus meeting although the official public meeting had not yet occurred to make these names and titles official?

Thank you for your attention to these questions.

JG Editorial Board Agrees That City Council Lockout Was Avoidable

In today's "Furthermore" section the Journal Gazette editorial board rightly chastises the city council and city clerk for not anticipating the crowd size at the July 24th city council meeting:

The meeting may have been legal, but the way citizens were treated still wasn’t right.

With a big Harrison Square vote on the agenda and plans for smoking ban opponents to appear before the council en masse, the council should have been prepared for a bigger crowd than what the county commissioners’ meeting room on the second floor could hold. Instead, citizens could not get inside the crowded room.

Granted, the remodeling of the normal council chambers in Rooms 126 and 128 has caused inconveniences for everyone. But next time, the council and City Clerk Sandra Kennedy should seek alternatives.

The JG hits the nail on the head here. The idea that somehow the council could not have anticipated the crowd size is not logical. Don't forget that this was one of the PACs main reasons for ruling against me - thus her opinion is illogical as well. It's good to see that traditional media sources still advocate for open government even if the public access counselor does not...

JG Covers PAC Opinion

Ben Lanka has a story in today's Metro section about the PAC's decision. I must say that I think it's completely unprofessional of the Public Access Counselor to send a copy of her opinion to the media before she sent it to me. While the JG received the opinion on Friday I still had not received a copy by Monday afternoon. At that point I e-mailed the PAC and this morning I received the opinion in my inbox - unacceptable.

The Fort Wayne City Council did not violate the state’s open meeting law when people were denied access to a standing-room-only meeting, according to the state public access counselor.

Counselor Heather Neal wrote in an Aug. 24 letter that the council followed the law despite denying entry to its July 24 meeting to comply with fire code requirements.

Jeff Pruitt, a local resident, filed the complaint with the state July 25, saying people were denied entry to a highly critical meeting when the council voted to approve financing for the $120 million Harrison Square project and many tavern owners and workers came to testify about the city smoking ban.

Neal wrote that the state doesn’t have any case law on the issue, but other jurisdictions have refused to require public agencies to hold meetings in locations sufficient for every member of the public to attend.

“I further have no evidence the council knew or should have known the meeting room would not have accommodated the crowd for the July 24 meeting,” she wrote.

Pruitt said he was disappointed in the state’s decision and found it “laughable” that the council wouldn’t have known more space was needed for such an important meeting.

“It’s a sad day for citizens like me who want to see open government when the public access counselor doesn’t seem to be an advocate for open door law,” he said.

The council has been meeting in a smaller room this summer as its usual chambers are renovated. The regular chambers should be ready for use by next week.

blanka@jg.net

City Attorney's Response to Public Access Counselor is Misleading

Tim Manges sent a response on behalf of the city clerk and city council to the public access counselor in regards to my complaint about citizens being locked out of the July 24th council meeting. In this response, Manges distorts the facts of that day:

Mr Manges indicates the meeting room was not locked at any time during the July 24 meeting.

I suppose the door wasn't physically locked like one locks their door at night but having the police and the sergeant at arms guarding the door and refusing entry is the same thing. Manges' argument here is simply semantics and he knows it.

Mr Manges indicates he personally visited the area where the overflow crowd gathered and did not believe it to be eighty to one hundred as you indicate but between twenty and forty.

This might be true when Manges came out and saw what was going on but by then I'm sure many people, including myself, had already left. To estimate there might have been only 20 people is laughable.

Mr Manges further indicates he is not aware of any protests related to the overflow into the hall

Here Manges is indirectly calling me a liar. There were several witnesses that can corroborate that I went and personally asked the sergeant at arms to allow me into the meeting. I was refused entry. I also posted photographic evidence of Wayne Township Trustee Rick Stevenson discussing the matter with the police and the sergeant at arms. If Manges is "not aware" of such protests then it is due to his own ignorance and not because they didn't happen.

He indicates he observed frequent and fluid movement in and out of Room 200

Sure he did. Whenever somebody from the administration or the press wanted to go in or out they were freely allowed to do so. The rest of the common folk were not. We were on a one in, one out policy.

Mr Manges further asserts that the overflow crowd was only present for the committee sessions and that the room was not filled to capacity for the regular meeting.

Ok so you only violated the law for half the meeting and only because the citizenry gave up. Congratulations on partially abiding by the law through attrition. I suppose I shouldn't be surprised by Manges' distortions after Mike Sylvester exposed him for what he is...

Public Access Counselor Says City Did Not Violate the Open Door Law

The PAC has issued an opinion on my formal complaint regarding the July 24th city council meeting where numerous citizens, including myself, were locked out of the meeting. The PAC states:

I cannot fid the Council violated the spirit or letter of the ODL by holding its July 24 meeting in Room 200.

There are a couple of statements I want to address from the opinion that I consider to be faulty logic on the part of the PAC. I will specifically address city attorney Tim Manges' response to my complaint in another post. Suffice to say that his is an inaccurate portrayal of events. Don't forget this is the same guy that wrote a letter to the News Sentinel saying Mike Sylvester never sent a list of questions to the city even though there is ample proof that he did. More on that later, let's start with the PAC's opinion:

I further have no evidence the Council knew or should have known the meeting room would not have accommodated the crowd for the July 24 meeting.

The PAC cannot be serious here. Not only was this going to be the final Harrison Square vote, but the council knew the anti-smoking ban crowd was going to be there to speak as well. There were at least 50 people (including the Deputy Mayor) that overflowed into the Omni room at the previous meeting where the public was allowed to speak - mainly due to the anti-smoking ban crowd. And don't forget the council was going to discuss the property-to-income tax options also. I know the PAC is not located in Fort Wayne and probably doesn't know the first thing about local politics but her statement above is way off base.

The PAC also addresses previous precedent although she didn't use the precedent I wrote about here that was clearly applicable. Instead she chose an opinion that is only marginally applicable:

The latter opinion (03-FC-138) is more applicable here. There, the Counselor refused to find a violation of the letter or the spirit of the ODL when the public agency held its meeting in its regular meeting location and did not move the meeting when the room was filled to capacity. There the public agency provided a public address system so those in the overflow area could hear the meeting.

How is that applicable? In that case there was an overflow area and they could still hear the meeting. In this case there wasn't an overflow area whatsoever and we couldn't hear or see anything that was happening.

I think it's a sad day when advocates of open government cannot count on the PAC to hold government accountable...

City Council Lockout Precedent Is in My Favor

Marcia Oddi at the Indiana Law Blog has listed several prior opinions related to citizen lockouts. One that particularly caught my eye was issued by the former Public Access Counselor Karen Davis regarding a school board meeting in Perry Township:

If the Board did not hold its meeting in a room adequate to accommodate a substantial number of persons as has been the Board’s recent experience, this could constitute a violation of the Open Door Law’s requirement that the public be permitted to observe and record the meeting. On February 12 there were a substantial number of persons who had to observe the meeting from another room. It is not clear from the facts whether the video equipment allowed for all to observe, and whether the audio was clear enough for those present to hear the Board and to record the meeting. In addition, I note that providing video or audio of the meeting is but a substitute for actual attendance in the same room as the Board. Providing audio or video has been approved in circumstances where the Board had posted a notice for a particular room but had to accommodate a larger crowd than it could have anticipated.

Here we have the public access counselor saying that it could be a violation of the Open Door Law if the board didn't hold the meeting in a room that would accommodate the crowd that is typically present at such meetings. That is CLEARLY the case in my complaint as the overflow room has been used in the past but wasn't in this case when the final Harrison Square vote (among other hot topics) was going to take place. It simply cannot be argued with any legitimacy that the board could not have anticipated the crowd size at the July 24th city council meeting.

The PAC also says that while audio and video were present in this board's overflow room, that can still only be considered a substitute for actual access. Readers should note that in MY complaint the citizens weren't even provided video and audio - we were locked out entirely.

And finally the PAC ends her statement with a passage that could be applied VERBATIM to my complaint:

Here, the Board was aware that the interest in the meetings ran high, and decided to revert to the Board room with full knowledge that the attendance would likely greatly exceed the size of the Board room. Even if the Board did not violate the letter of the Open Door Law, I find that the Board’s action to move the meeting to its regular Board room did not conform to the spirit of the Open Door Law

I would challenge anyone to try and argue that the statement above could not be directly applied to the July 24th city council meeting...

(H/T: Mitch Harper)

Journal Gazette Covers City Council Lockout

There were some people in the blogosphere upset by the fact that the lockout received no coverage from the mainstream media. Well Ben Lanka of the JG covered the story today and there was a quote from the Public Access Counselor that was somewhat disturbing:

She said the fact the meeting was televised on public access television and held in a normal meeting room leads her to believe the meeting was held legally.

“It sounds to me they didn’t violate the spirit of the law, but I don’t know what a court would say,” she said.

Readers need to understand that the city council hearings are broadcast on CABLE public access - not PBS. So not only must you own a television you must also be a cable subscriber. Does the PAC really believe that the law can be twisted to imply that citizens must be cable subscribers to take part in democracy? I know the PAC needs time to research the issue but that would set a terrible precedent for open government activists...

My Formal Complaint to the Public Access Counselor

Today I contacted the Indiana Public Access Counselor and filed a formal complaint against the city for its possible violation of the Indiana Open Door Law. I've had a couple of people ask me why I want to go through with this when everyone involved seems to admit that it was a simple oversight. Let me start by saying that I'm not suggesting anyone should resign or anything like that; I simply don't want this type of violation to go unchallenged. If nothing else it forces local government to think about the public and how they should be accommodated.

Most of the people I talk to see this as the #1 issue in the upcoming election - they simply don't believe (right or wrong) that local officials take their concerns seriously. Well this is one way to change things. The more citizens that become engaged in local politics the more seriously their issues and opinions will be taken. It might not seem so now, but the squeaky wheel does get the oil - or the boot I suppose.

I know there are others that see my complaint as a way to possibly void the bond financing vote that took place last night. I want to be clear - that was not my intention. But if other citizens want to use last night's lockout to further their own agenda - well that is their right I suppose. The text of my letter to the PAC is shown below:

Heather Willis Neal - Indiana Public Access Counselor,

On July 24th, 2007, the Fort Wayne City Council held their weekly public council meeting. There had been construction taking place in the usual council chambers so they moved to a much smaller meeting space. During previous meetings in this smaller room, the council has accommodated the overflow crowd by allowing them to watch the proceedings on television in an adjacent room.

Unfortunately, during the July 24th meeting, the adjacent room was being used for another meeting. Therefore, about 80-100 citizens were locked out - literally - of the city council meeting. Once the seats were filled, the doors were shut and there was no audio or video provided. The doors were also manned by the sergeant at arms and local police, and no one was allowed to go in without somebody coming out first. I personally asked the sergeant at arms who was responsible for the decision and the room scheduling and he informed me that it was the Fort Wayne City Clerk Sandy Kennedy.

I believe the city’s action clearly violated IC 5-14-1.5-3 (emphasis mine):
"Sec. 3. (a) Except as provided in section 6.1 of this chapter, all meetings of the governing bodies of public agencies must be open at all times for the purpose of permitting members of the public to observe and record them."

The meeting was not open for all of the public to observe and record as the doors were shut and citizens were not freely allowed to enter. While the meetings are broadcast on public access television there is no statute requiring citizens to own a television in order to observe and record these meetings.

This is my notice of formal complaint and I look forward to your response.

Thank You