Hoosier lawmakers are reducing the job security of the state employee tasked with providing individual citizens, as well as government officials and employees, advice and assistance relating to Indiana's public access laws.
Hoosier lawmakers are reducing the job security of the state employee tasked with providing individual citizens, as well as government officials and workers, advice and assistance relating to Indiana's public access laws.
The Indiana public access counselor since 1999 has served as a statewide resource for addressing questions, concerns and alleged violations of two statutes — the Access to Public Records Act and the Open Door Law — focused on ensuring government records and meetings are open and accessible to Hoosiers.
The public access counselor does not enforce either law. Instead, the counselor is empowered to issue informal statements responding to inquiries about the laws, usually potential violations, and advisory opinions interpreting the laws to guide the behavior of government entities.
In addition, the public access counselor trains elected officials and ordinary Hoosiers about their rights and responsibilities under the laws, conducts research, and makes recommendations to the General Assembly about ways to improve public access.
The public access counselor is appointed by the governor and has long been protected from the political consequences of the counselor's opinions by having a guaranteed four-year term — except when good causes exists to remove the public access counselor.
That guarantee, however, is being eliminated July 1, and the public access counselor going forward will serve at the pleasure of the governor, subject to replacement at any time and for any reason.
House Enrolled Act 1338, approved earlier this month by the Republican-controlled General Assembly and signed by Republican Gov. Eric Holcomb, also requires the public access counselor to consider only the laws of Indiana and opinions of Indiana courts when issuing advisory opinions — making other resources, such as federal court decisions, public access laws of other states and even the dictionary, off-limits.
The public access counselor language was added to the legislation by state Sen. Aaron Freeman, R-Indianapolis, during a meeting of the Freeman-led Senate Committee on Corrections and Criminal Law.
Freeman said the change is needed to limit the scope of the public access counselor's advisory opinions on the Access to Public Records Act and Open Door Law, both of which state law declares shall be liberally construed so Hoosiers can fully informed about the activities of their government.
"He's issued some opinions that I vehemently disagree with and I think others in this body, and in this building (the Statehouse), vehemently disagree with," Freeman said.
Freeman also spearheaded the effort to make the public access counselor serve at the pleasure of the governor, instead of during a four-year term.
He said the new governor taking office in January should be able to appoint his or her own public access counselor and not be compelled to retain Luke Britt, whose third term as public access counselor, following his initial appointment by Republican Gov. Mike Pence and two reappointments by Holcomb, runs until October 2025.
"I believe the governor should be able to pick the person that they're choosing to serve. Any other appointed office serves at the privilege of the governor, so I believe this should be no different," Freeman said.
The measure ultimately was approved 40-8 by the Senate. In comparison, it only barely secured the 51 votes needed to pass the House — advancing by a 58-36 margin following spirited opposition by state Rep. Ed Delaney, D-Indianapolis, who called it "a victory for government secrecy."
"We're going to fool around with the language of the law, we're going to fool around with the tenure of this office, and we're doing it all so people will know less," Delaney said. "A vote for this is a vote for a less informed public, a vote for less open meetings, a vote for less public discussion. That's a really bad vote."
The governor acknowledged those concerns about the public access counselor in a statement released after signing the proposal into law.
But Holcomb said they were not enough to warrant a veto because "judicial review of the office's decisions is left untouched, and the governor retains the ability to appoint the position in the future."
Other provisions of the new statute, also set to take effect July 1, give local government officials additional tools for removing individuals who regularly disrupt public meetings by actions that don't necessarily constitute a crime.
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Hoosier lawmakers are reducing the job security of the state employee tasked with providing individual citizens, as well as government officials and employees, advice and assistance relating to Indiana's public access laws.