A citizen commission recently created by the South Bend Common Council to study the harms done to present-day African-Americans by slavery and discrimination must conduct all of its meetings in public, according to Indiana’s public access counselor.
The council voted unanimously Sept. 25 to create the commission. Council President Sharon McBride picked 14 members of the public to serve on the commission. She said it would meet separately from the council and at some point come back to the council with recommendations on action steps the city should take.
When elected bodies like the council create new entities, even those containing no elected officials, the new entities are subject to the same legal requirements to conduct their business in public, says Indiana’s public access counselor, Luke Britt.
“So when the common council creates a committee like that, whether it be through resolution or ordinance or just a vote, that new committee becomes subject to the Open Door Law in the same manner as the principal,” Britt said.
But the commission’s chair, Darryl Heller, has said he envisions having some public meetings and some private. He says he was advised by common council attorney Bob Palmer that the commission’s meetings weren’t subject to the Open Door Law because they were forming a commission rather than a committee.
Britt said that would merely be a matter of semantics, and that it doesn’t matter what the new group calls itself. They’re still conducting public business.
Indiana Code contains several definitions of a governing body whose meetings are subject to the Open Door Law. They include, “Any committee appointed directly by the governing body or its presiding officer to which authority to take official action upon public business has been delegated.”
The Reparatory Justice Commission ultimately could make recommendations to the council on actions the city should take to somehow compensate African-Americans as descendants of slaves. Heller says the commission won’t have authority to take action on behalf of the city, so he considers it no differently than if an individual asks the council to do something.
But the Open Door Law’s definition of taking official action is broad. It’s not just spending city money. The law defines official action as, among other things, “receiving information, deliberating and making recommendations.”
Palmer, the council’s attorney, did not immediately return WVPE’s call seeking comment Tuesday.
It’s not a new position for Britt to take when it comes to Michiana elected officials and public offices. In March of last year, the Penn-Harris-Madison Superintendent’s Advisory Council stopped meeting behind closed doors after Britt issued an advisory opinion that the council’s meetings must be public. The council had been meeting privately to discuss some parents’ concerns that critical race theory might be taught in the corporation.
Another example came just a month later, in April of last year, when the South Bend Community School Corp. wanted closed door meetings for a task force that its school board created to discuss whether some schools should be closed because of declining enrollment. Britt opined against the corporation. The South Bend Tribune sought Britt’s opinions as part of its coverage of both cases.
It’s not uncommon for elected bodies to appoint citizen groups to study issues and give them advice, and Britt said he can see why the South Bend council wants citizens serving on this commission.
“They want to task members of the public who might be knowledgeable about the issues that African-Americans would face post-slavery,” Britt said, “and so the council may or may not have that expertise in house. So they kind of outsource that to explore the issue. Nothing wrong with it, of course, but in that case they would have to kind of mind their p’s and q’s when it comes to compliance.”
Britt said his office has received this type of complaint somewhat regularly over the years. A reporter asked him why he thinks public officials in Indiana keep making this mistake.
“Intuitively, it doesn’t seem like a non-elected individual could have the authority to explore these issues but it happens all the time.”
Heller told WVPE the commission was going to have another closed door meeting Tuesday night.
It’s the type of meeting he does not think needs to be public because they plan only to get to know one another. But Heller admitted that the commission’s scope could come up in the discussion, and he acknowledged that’s a matter of public interest.
Heller said he planned to contact Palmer and ask him to clarify his interpretation of the law.
“It’s important," Heller said, "because we as the Reparatory Justice Commission have no interest in doing anything outside of the bounds of our legal authority, or even our just moral and social responsibility.”
