Thursday, June 7, 2012

Public Access Counselor Sides With Airport on Open Door Law Complaint

Yesterday the Indiana Public Access Counselor issued his opinion on my complaint that the Indianapolis Airport Board violated the Open Door Law in initiating a lawsuit without a meeting to take a vote and without an established policy giving the Board President the authority to unilaterally make this decision.  I spoke with Joe Hoage, the PAC, today, to try and get some clarification of the opinion.
I have uploaded the opinion to Google Docs, as I don't see it posted on the PAC website yet.

A little background on what has happened at the Airport since I filed the complaint and since they were notified by Hoage of that complaint on May 10, 2012.  (See "Airport Board Did Not Authorize Lawsuit On Fast Park Zoning" for information about the complaint itself.)

Since receiving word of the complaint, the Airport Chief Legal Office, Joseph Heerens, signed an engagement letter with Doninger Tuohy & Bailey LLP to file and litigate the lawsuit on May 11.  Then, on May 17, both Heerens and Airport Authority Executive Director, Bob Duncan, signed an amended letter of engagement setting a $70,000 limit on the professional services contract.  On May 25, the Airport Board voted unanimously to support the lawsuit.  The posted agenda for that meeting did not, however, contain mention of this vote so that interested parties could attend and make their opinions known.

The crux of the PAC opinion is that as a general rule, the law does not mandate that any Board hold a meeting in order to initiate a lawsuit.  In fact there is a chilling court decision that says that decisions can be made in executive sessions; the same executive sessions were taking a vote is illegal.  It is his opinion, as well, that there is a policy allowing the Executive Director of the IAA to enter into personal services contracts for less than $150,000 without prior Board approval and that allowed the engagement of the law firm. He also puts value on the late board vote saying:
I would note that to clear up an impropriety, or perceived impropriety; the Board conducted a vote on May 25, 2012 in an open, properly noticed public meeting where the Board unanimously ratified the initiation of the legal action.
Heerens comments omitted  the fact that the May 25 meeting agenda does not mention the issue coming before the Board for a vote.  So, that action does not really meet any standard for proper notice and does not embrace any openness with respect to the public.  And I would have to disagree strenuously with the PAC that it clears up any impropriety.  The impropriety is not that the Board would have voted unanimously before the lawsuit was filed, the impropriety is that it did not vote and thus blocked the public from having input before the decision was final. 

The fact that they gave me 5 minutes to comment AFTER the lawsuit was filed seems to mean a lot to Heerens.  It is a sad day for public input into the affairs of government when those in power don't get the idea that input is only valuable when it has a non-zero chance of affecting the outcome of a decision.
Heerens is not unique at the Airport.  We often see this detachment from any respect for the public's opinion and the true meaning of transparancy.  He just was the one who wrote it up.  Here is his take on how all this AFTER decision posing elevates the IAA Board above all reasonable expectations:
Not only did the IAA board act in a manner consistent with the above-referenced Advisory Opinion 08-FC-136, it went above and beyond by taking several additional steps in order to ensure that this matter was handled in a fully transparent manner and that the general public was informed and made aware of the litigation in question.
Just days after the Petitions were filed, President Wells took the opportunity to publicly announce and report, at an IAA public board meeting, that the IAA had filed this litigation challenging the MDC Approval.  At the conclusion of his public comments, Mr. Wells also announce that Complainant had requested, and was being granted, five (5) minutes to address the IAA board on this particular subject.  In her public comments, Complainant indicated that the Decatur Township Civic Council was opposed to the Petitions and requested that the IAA withdraw or dismiss them.  Complainant, along with several of her colleagues, also provided certain documents to the IAA board for its consideration.  No on else offered public comments or asked to be heard.
Again I must reiterate that the Airport Board is granted by State Law the right to sue and be sued.  They have not delegated that authority, through establishment of a policy, to the sitting President of the Board.  Thus, they must make that decision through a vote at an open meeting.  I am not deterred in this interpretation.  I am staggered that a Board of such importance does not have a policy establishing a mechanism for Board decisions between Board meetings.  Every non-profit on whose Board I have served has just such a mechanism. 

As for that chilling court opinion that decisions may be made in executive session, even though there may be no vote taken - the minutes of the Airport Board's executive sessions pretty much show no decision was made regarding this lawsuit in that venue either.  In November and December's Executive sessions, yes the Board did discuss allowable matters under IC 5-14-1.5-6.1 (b)(2)(B)
(2) For discussion of strategy with respect to any of the following:
(B) Initiation of litigation or litigation that is either pending or has been threatened specifically in writing
In the January 20 and February 17 meetings, no such discussion was noted in the minutes.  The MDC hearing was held on February 15.  The March 23 meeting, after the filing of the lawsuit, again notes IC 5-14-1.5-6.1 (b)(2)(B) - discussion of strategy regarding litigation.  So, no discussion of lawsuits took place in the time frame most interesting for this lawsuit.  Heerens, in his comments, carefully avoids saying that they did.  He gets very general on this saying only:
While the IAA has not historically secured the vote of its board before initiating litigation, IAA board members have regular opportunities to be advised on, and to discuss, recommended proceedings, threatened and pending litigation, and the strategy about on in connection therewith.  These discussions occur frequently in executive sessions throughout the year, as permitted by the ODL.  See, Indiana Code 5-14-1.5-6.1(b)(2)(B).  For example, at this time there are nine (9) pending lawsuits involving IAA, and these matters are discussed, from time to time, in executive session.
In our conversation, the PAC noted that it is not in his purview to opine on whether the Airport Authority Board was required to hold a meeting to decide if this lawsuit should be filed.  Given that big caveat, I cannot fault him from arriving at the position he did.  But, that is the crux of my argument that the Board violated the open door law - because they have the sole authority to sue and they did not delegate it to any Board President, nor did they make such a decision in an executive session without taking a vote.  The very fact that AFTER the airport was apprised of my complaint they even saw the first draft of a letter of agreement with the outside lawfirm handling the lawsuit, and a week later got a version signed by the Executive Director, and the very fact that AFTER the airport was apprised of my complaint they took a vote in a public meeting - all speaks to the fact that they did not do things right the first time and were bailing themselves out as best they could.  And, it looks like it worked.


Paul K. Ogden said...

Did the PAC forward the Airport's response and allow you to offer a reply before he wrote his opinion. That is standard practice in every court and every agency which handles public complaints. It has not been standard practice with the PAC and it irks me to no end. The PAC asks for a response from the agency and then writes an opinion based solely on the assumption that everything the agency said in the response is true.

Had Enough Indy? said...

No, Paul, he did not. I also wish the process allowed a rebuttal. Especially when the one filing the complaint may have more information to add than they thought might be necessary when they filled out the form.

Paul K. Ogden said...

HEI, that's exactly why the complaint-response-reply(rebuttal) format is the norm in every place, except with the PAC.

I asked the PAC about the failure to follow normal procedure when handling complaints and the response was that they're too busy to allow complainants to rebut the agency's response.

Anonymous said...

WTLC Amos Brown Interview With Airport Leadership