PAC: school board session had issues, but finds no harm to public

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The Indiana Public Access Counselor has issued an opinion with regard to a complaint filed by School Board member Jill Cord against the school corporation. Indiana Public Access Counselor Luke Britt issued the finding, based on the formal complaint filed by Cord on July 6th, 2017; and responded to by the Switzerland County School Board on July 24th, 2017.

According to the opinion, the complaint Cord filed alleged that the school board had violated the Open Door Law in an executive session that was held on June 5th, 2017. The Open Door Law is in place to ensure that public entities hold the majority of their discussions in public meetings; and that things are not decided behind closed doors and then announced to the public later. The law does allow boards to hold closed door, private meetings, but sets very specific guidelines as to what can and cannot be discussed.

For the meeting on June 5th, the school board was meeting with consultant Dr. James Halik, and was called so that board training with an outside consultant could be done, which is within the scope of the exceptions to the Open Door Law and could be held in private.

Cord’s complaint stated that she believed the law was violated because, according to the opinion offered by Britt:

The Complainant alleges that from 5:46 to 6:12 p.m. the Board, the Superintendent, Consultant Dr. James Halik, Board attorney Matt Hocker discussed the issue of the old Vevay High School Building rather than using that time that to train school board members with an outside consultant as stated on the meeting’s public notice. Specifically, she claims the purpose of the training session was to receive training in writing mission and vision statements for the school corporation. Cord contends that the 26 minute discussion about the school building violated the ODL.

As an aside, it is clear that the issue of the old Vevay High School Building is – or at least was – a point of contention between the Cord and the other board members. In May, 2017, the Board voted 6-1 to demolish the building. The Complainant was the lone vote against the demolition.

The Board contends that its actions in this situation are consistent with the notice of executive session that was posted prior to the meeting. Specifically, the Board argues that Dr. James Halik – operator of consulting business Compass Keynote Consulting – qualifies as an outside consultant for board training for purposes of the ODL under Ind. Code § 5- 14-1.5-6.1(b)(11).

What is more, the Board argues that the discussion about the old Vevay High School building – taken in the context of a board training – was within the scope of the executive session notice. More specifically, the Board suggests that the Complainant has made it difficult for the Board to focus on other issues because she continually attempts to revisit is- sues that have already been decided. The Board notes that Cord is commonly the sole dissenter on the Board. The Board stated that this type of resistance was a factor that prompted the Board to seek the training that occurred at the executive session. Furthermore, the Board stated that it needed help on how to move forward after the majority of the Board had decided an issue.

Lastly, the Board notes that Cord – by her own admission – fully engaged in the discussion during the executive session without questioning the propriety of the topic. In addition to making no objections, the Complainant joined the other board members in approving the minutes of the executive session unanimously.

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In his opinion, Access Counselor Britt acknowledges that the issues with the Switzerland County School Board are deeper than this particular complaint:

….Here, the Board issued public notice for, and held an executive session for the purpose of – in relevant part – training school board members with an outside consultant. There is no question that an executive session may be held to train school board members with an outside consultant about the performance of the role of the members as public officials. See Ind. Code §§ 5-14-1.5-6.1(b)(11). Therefore, the question in this case is whether the discussion at issue in the complaint qualifies as training with a consultant.

As a general matter, this Office scrutinizes executive sessions closely due to their very nature of being closed. Although there are justifications for having certain discussions behind closed doors, executive sessions should be invoked judiciously and the notice requirements must be followed to the exact letter of the law. Holding unauthorized discussions behind closed doors as a majority of a governing body only serves to erode the public trust and cast doubts on the transparency of the public agency.

To be sure, training school board members on their role as public servants can be a valuable tool in effective governance. Indeed, the law provides for such a subject to be discussed either in an executive session or as an orientation (or reorientation) in a non-meeting, such as a retreat, seminar or conference. See Ind. Code § 5-14-1.5-2(c). These gatherings are intended to be general in nature – high level issues and trends – rather than granular, substantive specific topics.

While the law does afford some latitude in holding these types of discussions outside the public’s view, I do find some aspects of the complaint and response troubling. The Board does not refute the crux of the complaint, which focused on the discussion in executive session about Ms. Cord’s dissenting vote on the demolition the old school building and her subsequent efforts to save the building.

Essentially, the Complainant feels the Board was attempting to browbeat her into ideological groupthink under the guise of “training.” To a certain extent, the School’s response affirms this intent:

• “It is not uncommon for Mrs. Cord to be the sole dissenter on Board action.”

• “This sort of resistance and difficultly [sic] moving forward after a Board decision was a factor that prompted the Board to seek the training.”

• “The Board needed help on how to move for- ward after the majority of the Board had decided an issue.”

I do not believe the executive session exception under Ind. Code § 5-14-1.5-6.1(b)(11), was intended to be a mechanism by which to quash political or personal differences. There are other outlets for such discussion – even outside of the public view – but executive session is not one of them. Even if Ms. Cord’s dissension was inappropriately antagonistic, it stands to reason the Board President would be responsible for helping improve the decorum and efficacy of gatherings. Surely, a single 6-1 vote and its ensuing fallout could be tamped without the need for a consultant.

Moreover, no single Board member is required to vote with the majority of the board on an issue to properly perform her duties as a school board member. Mrs. Cord remains accountable to the constituents of Jefferson Township who elected her to the Board; it is they who decide if her performance is adequate, not the other members of the board. Individually elected board members are not subject to the jurisdiction of a school board; and not an employee.

Discussions about substantive initiatives should be held in a public meeting, not behind closed doors. That being said, I am unconvinced the public has been harmed or injured by the Board’s actions. I encourage the Board to be mindful of the correct use of executive sessions and the preceding guidance in the future.

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So, Counselor Britt did find some issues with the executive session, as alleged by Cord; but was not convinced that the public was harmed by what did or did not happen during that executive session.