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Last updated: Tue. Nov. 26, 2013 - 10:43 am EDT

Indiana education board’s letter not illegal

But public access counselor warns against using email

INDIANAPOLIS — Indiana’s Public Access Counselor ruled Monday he could not “definitively” find the State Board of Education violated open door law with a recent letter sent to legislative leaders.

But Luke Britt warned the board and other public agencies from using email exchanges to take action.

“Final decisions are meant to be open and transparent,” he said in the ruling. He departed from the typical format of his opinions to make comments from an educational standpoint.

Britt went on to encourage all public agencies to be attentive to the purpose of public access laws to avoid ambiguous situations or arousing suspicions of prohibited activities.

“The appearance of action taken which is hidden from public view is particularly damaging to the integrity of a public agency and contrary to the purposes of transparency and open access.”

In October, staff for Gov. Mike Pence created Center for Education and Career Innovation drafted and circulated a letter by email asking legislative leaders to intervene is a dispute over issuing A-F school accountability grades.

The letter was not discussed in an open meeting of the State Board of Education.

Ten members of the board signed onto it. Democrat Superintendent of Public Instruction Glenda Ritz – the board chair – was not part of the email chain.

She sued after the letter was released, alleging the board held a meeting to take action without notice to the public.

The suit was tossed on technical filing grounds, which then led to a public access complaint filed by several Hoosiers.

First, Britt said the center staff unilaterally drafted the letter. If a majority of the board had directed the staff to draft the letter, then a violation would have occurred, he found.

“For all intents and purposes, this is a meeting of the minds, which just so happened to take place in cyberspace as opposed to a brick-and-mortar building,” he said.

But he noted the state’s prohibition against so-called serial meetings does not count email as participating in a gathering.

“In this instance the email exchange could be interpreted as a ratification of a final decision by vote,” the opinion said. “I do not think it rises to that level but the perception of the public is of significant importance.”

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