Public Access Counselor Luke Britt clarifies finding on Plan Commission violation of Open Door Law

Earlier this year, Indiana Public Access Counselor Luke Britt issued an opinion in response to Formal Complaint 24-FC-11

It was filed by Deborah Johnson that the Marshall County Plan Commission violated Open Door Law by discussing unauthorized topics during an executive session. That violation has been referenced or mentioned in Plan Commission, County Council, and Commissioner meetings since the original finding. Since that finding, Britt has provided clarification indicating that with more information he would not likely have even found a violation and that the finding was meant to be used for educational purposes only. 

On January 25, 2024 at 6 p.m., the Commission held an executive session to discuss personnel matters pursuant to Indiana Code Section 5-14-1.5-6.1(b)(5); the session was an employee performance review of Plan Director Ty Adley. 

Britt clarified that projects can be discussed that are directly related to the performance of the employee being reviewed, no action can be taken or conclusions reached. “Simply put, if I’d known then what I know now, I likely would not have found a violation. The way it has been described to me subsequently is that the topics were immediately related to the performance of the Plan Director and necessary to implement his work expectations for the upcoming year. So long as no conclusions or action plans were set into motion, this is perfectly appropriate. Not to criticize the response provided by the Plan Commission, but I read it as a tacit admission when that was apparently not the case.”

Britt clarified that elected officials and governing bodies are responsible for compliance with the Open Door Law, not employees. Director Adley would not have been expected to call out deficiencies in an Executive Session held to discuss his own performance appraisal. “Ultimately, compliance with the Open Door Law is the responsibility of the elected or appointed governing body members and not staff. I would not necessarily expect an employee to recognize, much less call out deficiencies in an executive session held to discuss their own performance appraisal. Internal staff is not subject to the Open Door Law and there is no mandatory reporting requirement. This consideration is likely moot anyway for the reasons stated above.”

Britt noted that his opinions are advisory only and are exclusively for educational purposes. “Finally, my opinions are advisory only and exclusively for educational purposes. I don’t play ‘gotcha’ with public agencies and that is not the intent of my role. My goal is compliance and setting a governing body on the right course for success. That has seemingly been accomplished if it was even necessary in the first place.”

The original complaint filed by Johnson with the Public Access Counselor included the claim that certain statements were made by Kevin Overmyer.

In the response to the Public Access Counselor’s inquiry to the Plan Commission regarding the complaint, Attorney Derek Jones letter stated, “Mr. Adley did not recall Kevin Overmyer stating that he ‘wanted to see this ordinance voted through as soon as possible’ or that ‘if we can get it voted through by the Planning Commission by February it would go to the commissioners by March’. Neither does Mr. Adley recall Kevin Overmyer asking ‘how soon the moratorium could be lifted’.”

Plan Commission President David Hostetler, Plan Commission Secretary Craig Cultice, and Member Christopher Kline also do not recall Overmyer making those statements or asking those questions. 

Other members of the Plan Commission could not be reached, were not present at the meeting, were not present for the entire meeting, or directed media inquiry to Director Adley or other Plan Commission members. 

Johnson was not asked for additional comment as she was the member who issued the complaint and that content was already published.

Director Adley was not asked for additional comment as his response was already included in the letter from the Attorney to Britt. 

The Public Access Counselor provides advice and assistance concerning Indiana's public access laws to members of the public and government officials and their employees. This guidance goes beyond filing formal complaints, he can also be reached to give guidance on compliance and to clarify opinions if there are additional questions. 

Britt was appointed by Governor Mike Pence to serve as Indiana’s Public Access Counselor in August of 2013, a non-partisan office dedicated to preserving the access rights of the public and educating government officials on their responsibilities under Indiana’s access laws. Britt is now the longest serving Public Access Counselor in state history. He can be reached at 317-233-9435. 

This article was researched and written by Jamie Fleury, a Staff Writer for the Pilot News.