By Emma Rausch
emma@thepaperofwabash.com
WABASH,IN The Paper of Wabash County filed a formal complaint against the MSD School Board on Thursday, July 28, with the Public Access Counselor.
The complaint requests an advisory opinion from Luke Britt, appointed PAC, to determine if the Board’s July 12 vote to reconfigure the school district violated Indiana’s Open Door Law.
“We believe, after consulting with the Hoosier State Press Association, that the Metro Board acted illegally and violated the Indiana Open Door Law,” Editor Joseph Slacian said.
In its objection, The Paper asserts that the violation stemmed from the Board’s actions to plan a district-wide reconfiguration during at least three executive sessions including those on June 8, June 14 and July 7, which were advertised as meetings that would discuss personnel matters.
“The media has an obligation to the public to keep an eye on these (governing) boards and make sure everything they do is aboveboard,” Slacian said. “When you have several board members saying that these plans were made in executive session, that raises red flags all over the place, and it is because of that that we believe that the plans were formed illegally.”
On Friday, July 29, the PAC granted priority status to the formal complaint, therein requiring the MSD Board to submit a rebuttal by Wednesday, Aug. 3.
The PAC will announce his official advisory opinion by Monday, Aug. 8.
The vote in question
MSD of Wabash County School Board met July 12 and announced, motioned and passed its plan to reconfigure Northfield and Southwood school systems into one school.
Following the meeting, The Paper sought guidance from the Hoosier State Press Association after questioning the validity of the vote. Stephen Key, HSPA Executive Director and General Counsel, corresponded with The Paper staff to discuss strategy for investigating the Board’s actions.
The MSD School Board met in regular session on Tuesday, July 26, but did not discuss reconfiguration plans at the time.
After the meeting, Board Vice President Gouveia told The Paper that the Board reconfiguration plans developed throughout several executive sessions.
“It’s been a history of meetings when we’ve had personnel discussions on staffing models, student ratios,” Gouveia said. “The only statement I can make is what we said before is that this has been an ongoing theme in student enrollment decline, financial decisions, efficiencies and it wasn’t just in three meetings that we came to this conclusion. It was things that Dr. (Sandra) Weaver had brought and said, ‘Here’s our personnel. How would you like to eliminate these positions or do things now because our efficiency is down?’
“So it’s been just a progression over time.”
The Board discussed personnel matters at its June 8, June 14 and July 7 meetings, according to the executive session agendas.
Stances
Gouveia asserted that the Board met in what it believed to be full proper legal context during the three aforementioned executive sessions.
“When we had executive sessions and we did meet, under our pretense, legally under full rights of what we set those agendas because (the Indiana Codes) are narrowly focused that we were discussing that you have an inefficiency ratio to the school and should we be eliminating X positions and teachers,” Gouveia said. “So we are discussing personnel in those meetings.
“The outcroppings of some of those conversations naturally had to come to ‘How do you save positions? How do you save personnel?’ So it was through a lot of those conversations and how do you stop the bleeding and save jobs more or less talk about what jobs should we eliminate in the corporation? And the decision we knew was going to have to be the elimination of positions because of the decline.”
The Paper and HSPA Executive Director Key, however, disagreed with the Board’s stance.
“Based on the notices that they provided for their executive sessions and the comments that I have been provided in some transcripts from the interim superintendent and vice president of the board, my feeling is that if a judge or Public Access Counselor were asked, they would be found to be in violation of the Open Door Law,” Key said.
The statue is set up on the presumption is that the business of agencies should be conducted in the open, he continued, but the Legislature does recognize there are needs for governing bodies to meet in private session.
“Obviously the Legislature has set up a system where government’s supposed to be transparent,” Key said. “You as a citizen are guaranteed the right to observe and record the public meetings of a government body, whether it’s a city council, county commissioners or, in this case, a school board because they are spending your tax dollars.
“So under the Open Door Law, the presumption is everything should be open unless the Legislature has specifically said, ‘This subject matter can be discussed in private.’”
But listing ‘personnel’ on an executive session agenda is not “just a blanket” reason to go behind closed doors, Key asserted.
“There are three specific subject matters that they can meet behind closed doors,” he explained. “One is if they’re receiving information about misconduct of an employee. They can do that behind closed doors, but that wasn’t the case here.
“Two, they can conduct job performance evaluations, and that wasn’t the case here, and three if they’re discussing or interviewing prospective employees, they can have an executive session to do that.”
But that’s not what the Board was doing, he continued.
“They were talking about staff reductions not hiring new employees,” Key said. “So the notices they gave for the three executive sessions (June 8, June 14 and July 7) … all talked about the provision that said they were having executive sessions to receive information about and interview prospective employees.”
While the statue does allow for the discussion of school consolidation during executive session, Key said he believes the intent of the Legislature was to allow discussion between two school boards to take place in a private meeting.
“Indiana went through a period of time when it went through a lot of school consolidations,” he explained. “So the school boards could talk about their strategy and positioning of where the high school going to be, where the elementary going to be, how were they going to combine the two school districts into one, and I think that was what that language was for, although it is not defined.
“I don’t believe the Legislature intended on a situation where the school was talking about consolidating from two high schools into one.”
Slacian compared the Board’s recent actions to how it handled the closing of LaFontaine Elementary School in 2013.
“When they closed LaFontaine Elementary, they had two public hearings on it,” he explained. “Here we’re dealing four or five times as many students as were involved with the closure of LaFontaine and they kept the plans hush hush until the last minute when they said, ‘Oh, here’s what we’re going to do.’”
The Paper is not challenging the Board’s decision to reconfigure, Slacian stressed.
“We are doing this (investigation) to make sure everything is done by the books and aboveboard,” he explained. “It could very well happen that the Public Access Counselor says they did indeed violate the Open Door Law and they have to take another vote, chances are the vote’s going to come out the same way.
“But at least the public will have some input into it beforehand and not after the fact.”
What’s next
For now, the decision has been passed to the PAC, who will investigate the situation further and determine whether the Board did violate Indiana’s Open Door Law.
If the PAC’s opinion is in favor of The Paper’s stance and advises there was a violation, the Board can either rescind its vote to take the proper steps to enact the reconfiguration plans or disregard the PAC’s opinion, according to Key.
“They can voluntarily fix this themselves and go back to square one,” he said, “or … if the School Board basically wants to disagree with the Public Access Counselor, then that would open the door for those who asked for the opinion from the Public Access Counselor to go to court and they can ask a judge to order the School Board to basically start over, declare their vote … null and void, so they would have to go back to square one and do it in the open.
“And the parties that filed the lawsuit, if they prevailed and they believed that there was a violation, the school would be ordered for the reasonable court costs and attorney fees for those citizens to go to court and force the School Board to comply with the Open Door Law.”
Even if the end result from the School Board is the same decision, Key said he wouldn’t say nothing changed, echoing Slacian’s opinion.
“If this is pursued and the School Board complies with the Open Door Law,” he said, “then that is a positive for the citizens of Wabash County because now they have to opportunity to know before a decision is reached what’s being contemplated by their elected representatives, they have the opportunity to talk to those school board members … and let them know either what questions they have about the process or to make sure they give them their feelings on the process.”
That is what Democracy is about, Key explained.
“You have representatives making decisions for those that elected them, but those that elected them also are still a part of the process and have the ability to talk to their elected representatives,” Key said.
“Whether or not the end result a month from now is the same, it makes a difference in that the public still has its right to know what’s going on, what’s being contemplated and has a right to speak out on that,” he continued, “and The Paper’s work in bringing this to light is still important.”