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I have observed Indiana University’s Board of Trustees since I was a student journalist in the 1980s. The trustees have always done as much of their business as possible in secret and outside public view. They and their in-house counsel have long treated the Indiana Open Door Law as a technicality to be acknowledged but not actually obeyed.
Last February, in response to a complaint I filed, Indiana’s public access counselor, Luke Britt, found that the trustees had violated the ODL when they agreed to add more than $500,000 to the compensation of former IU President Michael McRobbie without a public meeting or vote. Britt criticized the trustees’ “casualness.” IU was “dismissive of the import of the McRobbie agreement because it only involved a mere $500,000 contract,” Britt wrote tartly. “It is unlikely that the average taxpayer or tuition remitting student would view it similarly.”
But old habits are hard to change, even after a scolding by the state’s top public-access official.
In May, IU faculty members sent the trustees a resolution asking them to approve a union for graduate student instructors. For months leading up to that proposal, the campus had been immersed in a passionate public debate on a union, culminating in a disruptive four-week strike.
The trustees met by Zoom on May 19, with the public excluded, discussed the proposal and rejected it. This time, they at least issued a memo, which stated in relevant part: “In light of the recent all-faculty vote, we have considered this issue and concluded that the Board of Trustees will not recognize a union.”
Under the ODL, the trustees are required to meet in public whenever they “receive information,” “deliberate,” “make decisions” or “establish policy.” On the union question, the trustees did all these things. So why was the public shut out?
An exception to the Open Door Law allows for closed executive sessions to discuss “strategy with respect to … collective bargaining.” The legislative intent behind this exception is easy to see: When an agency is actively bargaining with a union, it shouldn’t be expected to tip its hand about its negotiating posture in public.
IU claims this exception applied to the trustees’ May 19 meeting.
But how could that be? The trustees decided a question of policy: whether or not to recognize a union. There was no collective bargaining going on. As a matter of simple logic and the plain meaning of words, you cannot engage in “collective bargaining,” and thus be entitled to formulate your “strategy” in secret, until you have actually recognized a union.
I filed another complaint with the public access counselor. IU spent about $4,550, according to public records, to hire partner Anne Ricchiuto from Faegre Drinker Biddle & Reath to file its response. The result? This time, Britt determined the board “does not appear to have deviated from its statutory access obligations.”
Britt’s opinion, issued Oct. 4, was inappropriately credulous toward IU’s arguments and unpersuasive in its reasoning.
It was fine for the trustees to exclude the public while they debated and decided a matter of such powerful campus interest, Britt said. That’s because the word “strategy” in the ODL’s collective bargaining exception, he speculated, “could very well include the positioning with respect to whether to enter into an agreement.” According to Britt, “the law does not put any bookends or parameters on what strategy might entail.” Thus, an executive session is allowed not just for collective bargaining but for the threshold policy decision of whether to recognize a union at all.
This stance — if the trustees say it was about “strategy,” then who am I to judge? — is not what we should expect from the officer charged with enforcing the public-access laws.
The Legislature has said the ODL is to be liberally construed in favor of transparency and narrowly construed in its exceptions. But Britt’s construction has the opposite effect. First, he reads ambiguity into statutory language where there is none, then holds that the benefit of the doubt goes to the agency that wants to do things in secret.
Public bodies are not supposed to decide controversial matters while hiding behind closed doors from people affected by their decisions. Faculty and students had no way of assessing the quality of the trustees’ deliberations; what input they had received from IU administrators; what facts they may have misapprehended; or whether the board members may have disagreed among themselves.
The trustees’ own memo made clear they had deliberated and established policy — exactly the kind of thing the law requires be done in public. Again, read their words (emphases added): “In light of the recent all-faculty vote, we have considered this issue and concluded that the Board of Trustees will not recognize a union.”
Yet despite all these active verbs, according to Britt, the meeting was really a nonevent. Adopting IU’s argument, Britt said the board “did not take any action at all, but simply affirmed its inaction on the subject.” Because there is currently no union, “Nothing changed organizationally one way or the other.” Faced with the choice of taking the trustees’ own description of their actions at face value or accepting the contrived spin of an outside lawyer who wasn’t present at the meeting, Britt chose the latter.
IU’s position, and Britt’s opinion validating it, defy logic and common sense. To “affirm” something is still to take an action. Moreover, by Britt’s logic, the trustees could decide to grant a tuition freeze for all students or impose a pay freeze on all employees with no public discussion or vote, then claim they merely “affirmed” the status quo; because tuition or salaries had not changed one way or the other, they could say, the decision was really just “inaction.”
Finally, Britt unquestioningly accepted IU’s argument that the trustees’ stance against a graduate student union wasn’t a new decision but merely the continuation of a “long-standing position.”
That is misleading.
As I pointed out in a filing that Britt apparently ignored, the only previous policy statements about a union had come from IU provosts. But the trustees, not provosts, are IU’s ultimate policy makers. And the trustees themselves had never given previous notice of any public or private discussion or vote on the matter. After all, if they had, there would be a record of it. Yet neither IU nor Britt cites any previous decision by the trustees that was properly made as the law requires.
I don’t support the unionization of students who work part-time in an academic setting, but I do expect the trustees of my university to comply with the letter and spirit of the law when deciding such an important matter. Sadly, the public access counselor’s opinion sends the opposite signal to a board that has a longstanding and determined aversion to transparency.•
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Steve Sanders is a professor at the Indiana University Maurer School of Law in Bloomington. He won the 2022 Courage Award from the Indiana Pro Chapter of the Society of Professional Journalists for his articles exposing irregularities in IU’s most recent presidential search. Opinions expressed are those of the author.
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