Open government used to be popular. Gov. Mike Pence was big on it. So was Attorney General Greg Zoeller. And one would think the public access counselor, Luke Britt, would have some fondness for it, seeing as how his office is charged with enforcing and defending it.
But somehow, the public’s right to know has been caught up in Pence’s war on state Superintendent of Public Instruction Glenda Ritz.
The first casualty, as you know if you’ve been following this sorry progression of affairs, was the presumed legitimacy of elected office. Democrat Ritz’ apparent crime was winning the election.
In short order, Pence created a shadow agency, the Center for Education and Career Innovation, that undermined the authority of Ritz and the Department of Education. At the same time he appointed the members of the State Board of Education, who seem to fight everything the superintendent does.
Ritz is nominal chairman of the board, but she might as well be a lawn ornament for all the respect and attention the board has paid to her.
Over her objections, the board voted to hire its own staff. While Ritz was on an official trip to China, a staff member drafted and sent a letter by email to the rest of the board, soliciting input as to their consent to sign it. Then the letter was sent to Senate President Pro Tem David Long and House Speaker Brian Bosma, asking them to direct the Legislative Services Agency to calculate school A-F grades despite the fact that Ritz’s department was already in the process of doing so.
Ritz tried to sue the board for violating the state’s Open Meetings Law, which prohibits a public agency from taking action in private, but a judge ruled the suit would have to come through Attorney General Zoeller. According to Ritz, Zoeller, who has spoken eloquently for open government in the past, declined to do anything.
This week, Public Access Counselor Britt, responding to a complaint by a group that included Fort Wayne school board member Julie Hollingsworth, decided that the request to Long and Bosma didn’t violate the Open Meetings Law.
Why? Because there was no meeting, Britt reasoned. The email approval, which involved all the board members except Ritz, doesn’t count because it isn’t clear that the members directed the staffer to write the letter and the legislature has not yet addressed whether a meeting of the minds over an email chain would constitute constructive presence for public meetings or in an aggregate sum. (Lawyers have a particular way of putting things, don’t they? In regular English, that would appear to mean that these guys found a way to thumb their noses at the Open Meetings Law and there’s not a darned thing I can do about it.)
Commendably, Britt urged the legislature to address this gaping hole in the law. And he warned public agencies that engage in this kind of under-the-radar activity that the appearance of action taken which is hidden from public view is particularly damaging to the integrity of a public agency and contrary to the purposes of transparency and open access.
But as of now, an agency that wants to take action without the public or even its chairperson knowing about it has a clear running field.
Does anyone in charge at the state government believe this issue, and the ugly precedent it will set, should transcend petty politics? Mr. Attorney General? Legislators? Governor?