Indiana’s Public Access Counselor rules BTC should be more transparent

By John Estridge

Indiana’s Public Access Counselor did not impose any sanctions on Brookville Town Council for violating the state’s Open Door Law, but he did not leave any doubt as to BTC’s inability to follow the law.

Luke Britt, the state’s public access counselor, stated this opinion:

“Based on the complaint and the response, there is not enough information to draw a conclusive determination, but this advisory opinion should be enough for the Town to amend its practices during future meetings.”

He had more to say in his response, which will be published later in the article.

And this is just one of other complaints pending against the BTC for violating the Open Door Law. The others are still under consideration by Britt.

Carla Hacker lives in the proposed annexation area the BTC is eyeing in order to purchase, from a private group, Brook Hill Golf Course for at least $1.1 million, and she is staunchly against the proposed annexation. She filed the complaint after BTC named its appointment to the county’s Area Plan Commission.

In her complaint, Hacker explained what had occurred during the process. Since at least June 2020, BTC was searching for a person to be its appointment to the Franklin County APC. No one stepped up to the plate.

In November 2020, Gary “Gig” Marmouze, a Brookville resident, offered to take the position. Everyone on council approved of Marmouze except for then-council member Curtis Ward. Ward is now the BTC president.

“Curtis didn’t like him because Marmouze was AGAINST the annexation and stated so publicly,” Hacker said in her complaint letter with emphasis on certain words in her complaint. “Ward said that ‘since he had a predetermined opinion about the annexation that he obviously picked up from sitting close to the anti annexation people at the meetings,’ he didn’t want him to be the representative. (Keep in mind that the annexation has been going on for 2 plus years now and many, many people have an opinion on the annexation – even the new people coming on to the board in 2021, so Ward’s opinion does not hold water.”

At the Dec. 8, 2020 meeting, Marmouze had withdrawn and three people volunteered to be on the APC as Brookville’s appointment. They were: Christine Raines, Bill Schirmer and Doug Schnitker.

According to the complaint, a three-person committee was supposed to interview all three candidates. But at a later meeting it was shown Ward was the only person to interview the candidates for the APC appointment. And it appeared Ward was prejudiced in the situation for a couple of reasons, Hacker said.

Hacker stated in the complaint: “Christine Raines also has a predetermined opinion of the annexation and she is FOR it. She also works with Curtis Ward as a realtor with Century 21 at their location in Oxford, Ohio and here in Brookville.”

“This may be legal, but ethical?” Hacker asked in her complaint.

Further Hacker summarized the prejudice she said Ward showed.

“The point(s) being: Christine Raines already agrees with him on the annexation; she is an employee through their work; she works for his Century 21 franchise here in Brookville; and she has expressed her annexation opinions very openly on social media.”

Hacker said Ward stated in an earlier meeting Marmouze should not be the appointee to the APC because Marmouze had a predetermined opinion on the annexation issue.

However, Raines’ predetermined opinion on annexation did not preclude her from the appointment, because her opinion matched Ward’s opinion, whereas Marmouze’s opinion did not.

“Her predetermined opinions should have kept her from being considered for the position as well – if all things were equal in the selection process,” Hacker wrote in the complaint.

Due to health reasons Hacker was not able to attend the BTC’s next meeting in December 2020 so Hacker sent three written questions to the BTC. However, Brookville Attorney Tammy Davis did not read the questions to the council members, Hacker said in her complaint.

In her complaint, Hacker said the questions were concerning the three candidates.

“There were 3 applicants for the position and I wanted to know what the qualifications were for the job, what were the differences in the applicants that got Christine Raines the job, and when it was all said and done, what made them give the job to her over the other two.”

Again in the complaint, she said one of the three applicants was very qualified for the position, having served in that capacity before.

“One of the applicants was very well qualified – had done this before and was very familiar with the job,” Hacker stated.

However, and she believed this was the deciding factor against the seemingly more qualified person, is he was not affiliated with Ward in any way.

In conclusion within the complaint, Hacker talked about the preponderance of especially the current council members to not discuss items before the vote. That has occurred in many instances. With the previous council, it occurred with the APC appointment among others.

“The meetings have very little discussion, leading one to believe there is much discussion prior to the meetings. The discussion should be held IN FRONT OF THE PUBLIC so everyone can understand what’s going on, what job qualifications are, where money is being spent, where the money comes from and who is voting for what. But instead, they all vote the same after a very quick ‘all in favor, opposed? motion carried.’ This isn’t right!”

Again, the bold type and all caps are Hacker’s in the complaint.

Britt seemed to readily agree with Hacker over the lack of discussion before a vote is not conducive to good governmental practices.

“Hacker’s complaints are well taken in that she raises concerns over the lack of discussion at Council meetings,” Britt said. “Meetings of governing bodies are not simply limited to taking action on pending matters. They are an opportunity for the governing body to discuss and explain its decisions. And those explanations are a condition precedent to a vote or other final action. Brevity of discussion before an action is generally a red flag as to noncompliance with the Open Door Law. Governing bodies should be mindful that official action under the Open Door Law is broadly defined to include discussion, deliberation, making recommendations, and receiving information. All of these actions, whether active or passive, if done as a majority is required to take place in a public meeting, unless an exception applies. This very much includes reasoning behind appointments, expenditures, contracts, etc. While it may seem inconvenient or inefficient for a governing body to show its work before arriving at a conclusion, it is also a golden opportunity for board members to demonstrate to their constituents (and voters) that they are the right people for their positions and they are being mindful and thoughtful as to all decisions affecting their respective communities. This does not necessarily mean a governing body needs to forensically respond to every single question from every single constituent, but it should at least provide a meaningful basis for its actions. The governing bodies of Brookville would be well served to take this into consideration.”

After Hacker filed a complaint, Davis responded for the town.

“Mr. Marmouze questioned why he was being imposed to an interview and requested that Mr. (Mike) Biltz (then-BTC president) not interview him due to a previous interaction that occurred outside of the council meetings. Council Member Ward volunteered to serve instead. Mr. Marmouze continued questioning the interview process and overviewing his qualifications. As a result, Mr. Ward expressed that he did have reservations about appointing Mr. Marmouze citing his recent actions classified by Ward as ‘public outbursts’ and Mr. Marmouze forming opinions before searching for a factual basis.”

Davis said she read the questions to council after they had already unanimously voted for Raines.

“Upon reading the questions to the council, I advised the council that I felt it was inappropriate to list the pros and cons of each applicant,” Davis said. “Furthermore, she (Davis? That is the reporter’s question because I do not know which proper noun the pronoun ‘she’ is supposed to represent) advised the council that there were statutory requirements regarding qualifications for the council’s appointment to the Area Planning Commission. Therefore, upon my advice, the Town Council declined to make any further comment regarding the other two applicants.”

Davis said, in her response, the town residents do not have to have their questions answered or be allowed to speak at BTC meetings.

“Even if the town would not have read or answered Mrs. Hackers (sic) questions, state code does not guarantee an individual from having the opportunity to speak or question.”

Davis then quoted an excerpt about that situation from the Public Access Commission website, which she said proved her point.

Davis then said Hacker’s opinions are fueled by her being against the proposed annexation.

“She has publicly and privately opposed annexation in its entirety and any decision which may or may not relate to that.”

And Davis said Ward did not interview Raines, and instead recused himself and town administrator Tim Ripperger made the recommendation for Raines to be the town’s appointment.

Davis told Britt, “BTC is mindful of the Open Door Law and makes every effort to follow it.”

However, Davis mentioned the formation of the committee of just two council members and the town administrator to interview the applicants. And since the presence of just two council members, which is less than a quorum, it allowed the committee to operate outside the Open Door Law.

“The committee privately conducted interviews and later gave a recommendation to the entire council which occurred at a regularly scheduled public meeting. Therefore, there was no violation of Open Door Law,” Davis wrote.

Britt disagreed.

“The Town’s response introduces a matter worth mentioning in terms of general governance,” Britt wrote. “It appears to imply that work was delegated to a committee of less than a quorum to address a matter outside of a public meeting. The Town seems to argue that this non-majority gathering would not be subject to the Open Door Law. This is not the case. While informal non-majority gatherings are not usually subject to the Open Door Law, official committees are. Under the ODL, ‘governing body’ means: 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. Ind. Code § 5-14-1.5-2(b)(3). The formal delegation of duties is the trigger for a committee to constitute a new governing body, a majority of which would be subject to the Open Door Law. Committees are a useful tool but not an opportunity to subvert the transparency requirements of the law or creatively abdicate open meeting duties.”