“Nowhere in the [open door law] does it require the Board to deliberate or discuss items before voting or taking other final action ” School Board Attorney Emma Jay responding to Public Access Complaint
May 17, 2018-The School City of Hammond recently approved hundreds of thousands of dollars in construction related contracts through the use of a “consent agenda.” According to the consent agenda utilized on March 20, 2018, the Board voted on the following items without discussion or deliberation:
A resident attending the meeting would know that contracts were awarded for a construction manager, architect and bond issuer but there is no way to know any of the crucial terms of those contracts. The cost of the contracts, the length of the contracts and the scope of work to be performed are all terms of the contracts which are unknown to Hammond taxpayers to this date-nearly two months after the contracts were awarded by the School City of Hammond Board. Some of these terms are likely unknown even to the Board members as no questions were asked and no information provided during the meeting.
The use of the consent agenda for such large construction contract items would seem to violate the School City of Hammond Policy which states that a consent agenda is to be used for “routine” items:
In addition to the Board Policy, Indiana Code states that “a rule, regulation, ordinance, or other final action adopted by reference to agenda number or item alone is void.” (See Indiana Code 5-14-1.5-4). The Indiana Public Access Counselor explained:
Unfortunately for Hammond taxpayers, Hammond School Board members believe that they need not “showcase their thoughtfullness and mindful consideration of the stewardship of public resources.” In fact, the Board argued before the Access Counselor that there is “no requirement that delibaration occur before final action being taken.” According to the Hammond School Administrators, the proper procedure for awarding large, long-term construction contracts is to receive a recommendation from unnamed staff members and to act on that recommendation without any delibaration, forethought or public discussion:
Thus, according to the Board, the decisions relating to the selection of bond issuer, architect, and general contractor for the construction of the new high school and construction at Gavit Middle/High School were made by undisclosed staff members. No Board member had a single question or concern regarding the selection of general contractor, architect and bond issuer for the largest construction contracts that the Board has entered in nearly 20 years. If Board members had such questions or concerns and they were addressed outside of the meeting, that may be a violation of the Open Door Law. Thus, the Board unequivocally stated that no member interviewed or had any meeting with any entity to be awarded a contract. Despite not interviewing the contractors or discussing the awarding of the construction related contracts with anyone outside of a meeting, no Board member had any questions relating to the awarding of the contracts which will largely shape how the $110M school construction projects move forward before voting.
- Obfuscation Upon Obfuscation
According to the Board, the proper procedure when a taxpayer has a question about an item on the consent agenda is to submit a public record request. Unfortunately for Hammond residents, the Board has also chosen to obfuscate the purpose and intent of the Indiana Public Record Act by requiring even the most routine of requests to view information to be filtered through the Board Attorney. Thus, in order to view the contracts voted on by the Board, a resident would have to submit a request, in writing, and wait up to 30 days for a response. The Public Record Act anticipates that records owned by taxpayers be open and available for inspection to the public during normal business hours:
“Any person may inspect and copy the public records of any public agency during the regular business hours of the agency . . .” Indiana Code 5-14-3-3
The purpose of this provision is clearly set out in the introduction to the statute:
“A fundamental philosophy of the American constitutional form of representative government is that government is the servant of the people and not their master. Accordingly, it is the public policy of the state that all persons are entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and employees. Providing persons with the information is an essential function of a representative government and an integral part of the routine duties of public officials and employees, whose duty it is to provide the information. This chapter shall be liberally construed to implement this policy and place the burden of proof for the nondisclosure of a public record on the public agency that would deny access to the record and not on the person seeking to inspect and copy the record.” Indiana Code 5-14-3-1
As with all rights, however, it is the responsibility of those holding them to demand accountability. Hammond residents provided the Board with the $180M in additional taxes that they requested, it remains to be seen whether the Board will be held to account for the expenditure of those funds.
You can see the opinion of the Public Access Counselor on the use of the Consent Agenda and the School Board response to the Complaint here:18-FC-55
School's response 18-FC-55