Boswell and Chinn: Public agency considerations in an era of engaged citizenry

Serving on the board of a public agency may feel like a challenging task these days. New and increasing demands for public transparency, increased scrutiny of board decisions, social media activism and the ratcheting up of culture wars have placed public agency board members under the proverbial microscope like never before. Across the state, board members, and their agency executive directors, are asking the legal community to help them navigate this new era of engaged citizenry.

Public boards must operate within the parameters of the Indiana Open Door Law (Indiana Code § 5-14-1.5) and the Indiana Access to Public Records Act (I.C. 5-14-3). Yet there are practical actions that boards should consider taking to help them successfully balance the legitimate role of public transparency against the harsh scrutiny that sometimes accompanies zealous activism.

By utilizing some strategic forethought and planning, public agencies can help protect board members from harsh public scrutiny while simultaneously adhering to the important tenets of public transparency. As boards plan their 2024 to-do lists, taking time to consider their approach to public transparency could pay positive dividends for years to come.

Public access statutes and the Indiana public access counselor

The underlying purpose of the ODL and APRA are to keep the public informed about the actions being taken by public agencies. As the APRA statute eloquently states, “A fundamental philosophy of the American constitutional form of representative government is that government is the servant of the people and not their master.” I.C. 5-14-3-1. Accordingly, these laws help the people of Indiana determine whether their public agencies are adequately and properly serving them by making sure that public business is conducted within view of the public.

As with most statutes, there is a decent amount of caselaw pertaining to the ODL and APRA, and boards and their counsel would be wise to understand the jurisprudence on these issues. Unique to the ODL and APRA, however, is the role of the Indiana public access counselor, which provides formal opinions concerning the application of these laws. The PAC’s powers and duties are derived from I.C. 5-14-4-10, which allows the PAC to interpret the ODL and APRA and educate the public. The PAC does not have the power to create new public transparency requirements not found in the law, although the PAC occasionally provides suggested best practices that public agencies may choose to utilize.

Public transparency items to consider

While not an exhaustive list, here are some examples of items related to public access and transparency that public agency board members should consider:

What action items can be delegated to staff? It is common for statute to dictate that public boards must publicly vote on certain action items. But for other items not laid out in statute, it may make sense for boards to simply delegate those actions to staff leadership. Boards can publicly set policies and procedures and then instruct staff to effectuate those within their day-to-day decision making. It is worth noting that the PAC has taken controversial positions about what public agency decisions must be made in a public meeting, so this is an issue worth review.

Procedures for public comment at board meetings: Again, statute my dictate that certain issues be subject to public comment during a board meeting. But as a general rule, boards have discretion about when and whether to allow for public comment, and it is common for boards to regulate the duration and germaneness of public comments. Boards should consider how to utilize public comment in a way that best balances legitimate public discourse with adequate public access.

Understanding the differences between the ODL and APRA: At its heart, the purpose of the ODL is to ensure public agencies are taking official actions openly and in view of the public. APRA, meanwhile, is about providing the public access to documents related to the agency’s work. Depending on the situation, one may be a more appropriate mechanism than the other for effectuating responsive transparency. As just one example, the ability to provide confidential legal advice to public officials differs significantly between the two contexts. Boards should understand the differences and help the public understand the differences, as well.

How to provide a consistent level of public transparency: Boards should work hard to be consistent with their level of public transparency. A tendency to alter the level of transparency based on specific circumstances can send the wrong message to the public, even implying a lack of transparency when that is not the case. Statute sets forth required minimum levels of transparency, and boards should carefully consider whether going beyond those statutory requirements is necessary when met with public requests.

Recommendations

Although not exhaustive, here is a list of example recommendations for public agency boards to consider:

1. Conduct board training on the ODL, APRA and associated best practices.

2. Utilize legal counsel with ODL and APRA experience and expertise.

3. Incorporate strategic public relations strategies into external communications.

4. Consider adopting rules for electronic participation of board members at public meetings.

5. Establish communications channels for public input aside from public meetings.

6. Establish policies and procedures that set reasonable expectations with the public.

Trained and experienced legal counsel will undoubtedly have additional recommendations, and not all recommendations may be necessary for every public agency. The important takeaway is that board members should be thinking seriously about what actions they can take to be better equipped to handle increased citizen engagement.

It is likely that 2024, being a presidential election year, will usher in even more attention to the inner workings of public agencies, and the years that follow are unlikely to offer much of a reprieve. Public agencies must become more intentional about how to handle an increasingly engaged citizenry. Boards that proactively consider their approach to public transparency will be better equipped to balance these fundamental principles with the legitimate desire to protect against overzealous or uninformed public scrutiny.•

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Brad Boswell is an associate and Scott Chinn is a partner in the Indianapolis office of Faegre Drinker Biddle & Reath LLP. Opinions expressed are those of the authors.