Citations Affected: IC 5-14-1.5.
Synopsis: Open door law. Provides that absent express statutory
authorization, a member of a governing body may not vote or be
counted as part of a quorum if the member is not physically present at
the meeting. Provides that a series of gatherings by the governing body
of a state or local government agency violates the open door law if: (1)
less than a quorum of members of the governing body attend each
gathering; (2) the total number of members attending all gatherings
constitutes at least a quorum of the governing body; and (3) the
gatherings are conducted for the purpose of conducting official
Effective: July 1, 2005.
January 6, 2005, read first time and referred to Committee on Government and Regulatory
A BILL FOR AN ACT to amend the Indiana Code concerning state
and local administration.
CODE AS A NEW SECTION TO READ AS FOLLOWS
[EFFECTIVE JULY 1, 2005]: Sec. 3.1. (a) A governing body violates
this chapter if the governing body conducts a series of at least two
(2) gatherings of members of the governing body that fulfill the
(1) Each gathering is attended by less than a quorum of the members of the governing body.
(2) The sum of the members of the governing body who attend the gatherings constitutes at least a quorum of the governing body.
(3) A member attends a gathering in person or by intermediary, telephone, computer, videoconferencing, or other electronic means.
(4) The gatherings are held for the purpose of taking official action on public business.
(b) A gathering under subsection (a) does not include:
(1) a social or chance gathering not intended to avoid this chapter;
(2) an onsite inspection of any project or program;
(3) traveling to and attending meetings of organizations devoted to betterment of government; or
(4) a caucus.
(c) A violation described in subsection (a) is subject to section 7 of this chapter.
(D) taken at a meeting held in a location in violation of section 8 of this chapter.
The plaintiff need not allege or prove special damage different from that suffered by the public at large.
(b) Regardless of whether a formal complaint or an informal inquiry is pending before the public access counselor, any action to declare any policy, decision, or final action of a governing body void, or to enter an injunction which would invalidate any policy, decision, or final action of a governing body, based on violation of this chapter occurring before the action is commenced, shall be commenced:
(1) prior to the delivery of any warrants, notes, bonds, or obligations if the relief sought would have the effect, if granted, of invalidating the notes, bonds, or obligations; or
(2) with respect to any other subject matter, within thirty (30) days of either:
(A) the date of the act or failure to act complained of; or
(B) the date that the plaintiff knew or should have known that the act or failure to act complained of had occurred;
whichever is later. If the challenged policy, decision, or final action is recorded in the memoranda or minutes of a governing body, a plaintiff is considered to have known that the act or failure to act complained of had occurred not later than the date that the memoranda or minutes are first available for public inspection.
(c) If a court finds that a governing body of a public agency has violated this chapter, it may not find that the violation was cured by the governing body by only having taken final action at a meeting that complies with this chapter.
(d) In determining whether to declare any policy, decision, or final action void, a court shall consider the following factors among other relevant factors:
(1) The extent to which the violation:
(A) affected the substance of the policy, decision, or final action;
(B) denied or impaired access to any meetings that the public had a right to observe and record; and
(C) prevented or impaired public knowledge or understanding of the public's business.
(2) Whether voiding of the policy, decision, or final action is a necessary prerequisite to a substantial reconsideration of the subject matter.
(3) Whether the public interest will be served by voiding the
policy, decision, or final action by determining which of the
following factors outweighs the other:
(A) The remedial benefits gained by effectuating the public policy of the state declared in section 1 of this chapter.
(B) The prejudice likely to accrue to the public if the policy, decision, or final action is voided, including the extent to which persons have relied upon the validity of the challenged action and the effect declaring the challenged action void would have on them.
(4) Whether the defendant acted in compliance with an informal inquiry response or advisory opinion issued by the public access counselor concerning the violation.
(e) If a court declares a policy, decision, or final action of a governing body of a public agency void, the court may enjoin the governing body from subsequently acting upon the subject matter of the voided act until it has been given substantial reconsideration at a meeting or meetings that comply with this chapter.
(f) In any action filed under this section, a court shall award reasonable attorney's fees, court costs, and other reasonable expenses of litigation to the prevailing party if:
(1) the plaintiff prevails; or
(2) the defendant prevails and the court finds that the action is frivolous and vexatious.
The plaintiff is not eligible for the awarding of attorney's fees, court costs, and other reasonable expenses if the plaintiff filed the action without first seeking and receiving an informal inquiry response or advisory opinion from the public access counselor, unless the plaintiff can show the filing of the action was necessary to prevent a violation of this chapter.
(g) A court shall expedite the hearing of an action filed under this section.