Indiana Public Access Counselor Luke Britt advises that caucuses are slippery slopes.
As opposed to open-door meetings dealing with public business, caucuses are closed-door meetings that members of a political party hold to discuss political business and implications of future legislation on the party. But they cannot conduct officer elections, which is at odds with a quote from a former city council member in a recent WFIU story.
“A caucus is for a political purpose to determine if an initiative is consistent with a platform, to galvanize a political platform for messaging purposes,” Britt said. “It's not for taking action on public business.”
But the issue gets even more complicated when every member of a governing body is from the same political party, such as currently exists with Bloomington City Council, Monroe County Commissioners, and Ellettsville Town Council.
In 2020, Britt issued an informal opinion in response to a complaint by Dave Askins at the B Square Bulletin about practices of the all-Democrat Bloomington City Council meeting under the Indiana open door law caucus exemption.
In Britt’s opinion, he defines “official action” as receiving information, deliberating, making recommendations, establishing policy, making decisions, and taking final action. He also cites Indiana law saying “public business” means “any function upon which the public agency is empowered to authorize or take official action.”
“To say that I can caucus with my fellow ideological colleagues to discuss city business, I think that's an end around, that's a cheat,” he said. “It would be way too easy to avoid the open door law by just saying ‘caucus.’”
To a certain degree, caucuses can pertain to current initiatives and whether they are consistent with party ideology.
“I can envision circumstances where the nine of them would want to huddle up and say, ‘okay, is this bridge project consistent with our ideals as Democrats?’” Britt said.
“But that's a quick conversation. It is not, ‘let's hash out the details of this infrastructure initiative, in private, so that then we can be present to the public kind of a monolithic front.’”
Askins submitted a second complaint with the public access counselor (PAC) in 2021 specifically addressing council deliberations on officer elections in caucus. Britt’s second opinion confirmed that appointments of officers and members of other governing bodies and committees is public business and not politics.
“I think I've made my position clear in Bloomington,” Britt said. “I have not heard of caucuses being used in this way statewide. It seems to be limited to just [Bloomington]”.
Behind the scenes, Britt opened a dialogue with council attorneys regarding issues surrounding caucuses.
“I was able to engage the council’s attorneys and have an ongoing dialogue with them, to disagree with them, to agree with them in certain cases,” he said. “But to open up that channel of communication, I think serves the Bloomington community."
“It at least made them stop and think.”
Council attorney Stephen Lucas said a similar thing in response to the PAC opinions, while also noting how council believed it was previously operating within the law.
“I think the issues Mr. Askins raised kind of gave [council] an opportunity to review some of their practices, and I think since then they have operated under this new guidance we have gotten from the PAC,” he said.
However, Askins said he thinks the PAC opinions only caused council to change one behavior.
“The visible evidence is it probably had an impact on the way that they approach their officer elections once a year,” he said. “I am not convinced that they stopped holding caucuses and tried to get around the open door law requirements that deliberation on public business happens in public.”
Indiana courts have not offered a lot of guidance on caucus exemptions. However, in one case it did establish both precedent and confusion.
In Evansville Courier v. Willner (1990), two Democratic county commissioners met several times and deliberated the hiring of a fellow Democrat as superintendent of county buildings. The trial court originally ruled in favor of the commissioners, saying the discussions “merely constituted the planning of political strategy and the preparation of final action.” However, the court of appeals overturned this decision and said the hiring was one of the functions commissioners had authority to take a final action on, and thus the deliberations are considered public business.
The Indiana Supreme Court adopted the appellate court opinion in part but clarified the scope of the caucus exception. It said a caucus does not become a public meeting because the people in attendance constitute majority of a governing body.
“In doing so, it created a lot of confusion,” Britt said.
Britt said the court was trying to say there is a difference between public business and political business but didn’t quite connect the dots.
“If you take that Supreme Court case out of context, you can interpret it to say something that it doesn't,” he said. “And I think at least initially, the City of Bloomington did that- not in bad faith, because I genuinely think that it's a confusing set of circumstances.”
Luke Britt was appointed Indiana Public Access Counselor in 2013. The office is dedicated to preserving access to information and educating government officials on their responsibilities under Indiana law. (Zoom)
As far as open door law violations, there is no clear path of enforcement in Indiana.
Britt said the best-case scenario is often resolving the problem through cooperation with his office rather than expensive litigation. The office can then issue an opinion to the concerned parties, albeit not legally binding.
“Say Bloomington or any other municipality doubled down on some bad actions that I disagreed with,” Britt said. “My office can't do anything to compel them to take certain action, but a court can.”
