Public access dearborn county redevelopment commission

Complaint letters sent to Indiana Public Access Counselor Three letters, 10 pages

126 W. High Street, Lawrenceburg, IN 47025 • PH 812-537-0063 • FAX 812-537-5576 May 9, 2014 Indiana Office of the Public Access Counselor: I am filing a formal complaint regarding executive session Open Door Law Violations committed by the Dearborn County Redevelopment Commission, Lawrenceburg, Ind. The following is information pertaining to two executive sessions I think violated Indiana Code. I also have included copies of the documents referenced in this letter.

Although the meetings occurred over 30 days ago, I am filing a formal complaint because I only discovered the violations after a Public Records Access request was fulfilled, less than 30 days ago, on Monday, April 28.

Violation No. 1 I received an emailed executive session notice from the Dearborn County Redevelopment Commission at 11:08 a.m. Monday, Sept. 9, 2013, that stated “The Dearborn County Redevelopment Commission has called an executive session Thursday, September 12, 2013, at 4:00 p.m. This meeting will be held for the sole purpose of discussing strategy with the respect to purchasing real property which is classified confidential by state and federal statutes. IC 5-14-1.5-6.1(b) (2) (D) This meeting will take place at the Administration Building, 3rd Floor Commissioners Room, 215 B West High Street, Lawrenceburg, IN 47025.”

Although a required memoranda does appear to exist for the executive session, a summary of action taken in the executive session is mentioned in the minutes for the Dearborn County Redevelopment Commission’s public monthly meeting for Thursday, Sept. 12.

I think two of the topics discussed during the executive session did not pertain to “strategy with respect to purchasing real property.”

The first topic is over viewed in the minutes as “Terri asked permission to send an incentive offer to ‘Project C’on the Boards behalf. Motion made to allow this by Kevin Lynch with a second by Dave Deddens. All approved.”

An incentive offer to lure a business does not appear to fall under “strategy with respect to purchasing real property.”

The second topic is summarized in the minutes as “Terri requested permission to approach EDI (Dearborn County Economic Development Initiative) to assist with funding for extending waterlines out to Projects Millings and also improvements to the Hirlinger entrance. Kevin Lynch made motion to allow this with a second by Dave Deddens. All approved.”

Discussion to ask permission to approach EDI for assistance with funding to extend waterlines to a new company

development, and discussion to make improvements to another property does not appear to fall under “strategy with respect to purchasing real property.” Furthermore, a discussion about requesting funding for waterlines and property improvements, does not appear to fall under any reason listed in Indiana Code to be discussed in executive session at all. I think this discussion should have taken place during a public meeting.

Violation No. 2 I received an executive session notice from the Dearborn County Redevelopment Commission at 10:10 a.m.

Tuesday, Nov. 19, 2013, that stated “The Dearborn County Redevelopment Commission has called an executive session Thursday, November 21, 2013 at 3:30 p.m. This meeting will be held for the sole purpose of discussing strategy with the respect to purchasing real property which is classified confidential by state and federal statutes.

IC 5-14-1.5-6.1(b) (2) (D) This meeting will take place at the Administration Building, 3rd Floor Commissioners Room, 215 B West High Street, Lawrenceburg, IN 47025.”

(Originally the public notice listed the meeting date as Nov. 19, but I was told in a follow-up email the date was a typo. The date of the meeting was Nov. 21.)

Although a required memoranda does appear to exist for the executive session, a summary of action taken in the executive session is mentioned in the minutes for the Dearborn County Redevelopment Commission’s public monthly meeting for Thursday, Nov. 21.

I think the topic discussed did not pertain to “strategy with respect to purchasing real property.”

The topic is over viewed in the minutes as “An Executive Session was held prior to the regular meeting. Per Andrea, action needed to be taken to give Terri the authority to submit three grant requests to the City of Lawrenceburg’s Regional Economic Development Program. Jim Deaton made this motion with a second from Dave Deddens. All approved.”

From my research it appears the grant requests were for a county wide visioning study, a county wide economic redevelopment coordinator, and money for the county redevelopment commission. None of these reasons falls under “strategy with respect to purchasing real property.” Furthermore, a discussion on any of these grant topics does not appear to fall under any reasons provided under Indiana Code for an executive session. I think this discussion should have taken place during a public meeting.

Thank you for your time. If you need any additional information from me regarding this complaint, please contact me at dburdette@registerpublications.com or 1-812-537-0063, ext. 106.

Denise Freitag Burdette Assistant News Editor The Journal-Press and The Dearborn County Register 126 W. High St./P.O. Box 4128 Lawrenceburg, IN 47025

126 W. High Street, Lawrenceburg, IN 47025 • PH 812-537-0063 • FAX 812-537-5576 May 12, 2014 Indiana Office of the Public Access Counselor: I am filing a formal Public Records Access Violation complaint regarding missing executive session memoranda committed by the Dearborn County Redevelopment Commission, Lawrenceburg, Ind. On Monday, April 7, 2014, by email, I sent an Access to Public Records Act request to several Dearborn County, Ind., government offices and boards, including the Dearborn County Redevelopment Commission. One of my requests was “Memoranda for Dearborn County Redevelopment Commission executive sessions held from March 2013 through December 2013.”

In response to my request for Dearborn County Redevelopment Commission executive session memoranda, copies of public records were dropped off at my office Monday, April 28.

The records given to me, however, do not include all the information required for executive session memoranda listed under Indiana Code IC 5-14-1.5-6.1 (d) “Public notice of executive sessions must state the subject matter by specific reference to the enumerated instance or instances for which executive sessions may be held under subsection (b). The requirements state in section 4 of this chapter for memoranda and minutes being made available to the public is modified as to executive sessions in that the memoranda and minutes must identify the subject matter considered by specific reference to the enumerated instance or instances for which public notice was given. The governing body shall certify by a statement in the memoranda and minutes of the governing body that no subject matter was discussed in the executive session other than the subject matter specified in the public notice.”

Therefore it is my understanding, in conjunction with IC 5-14-1.5-4 Sec. 4 (b) that executive session memoranda must include the date, time and location of the meeting; members present and absent; the subject matter considered must be identified by specific reference to the enumerated instance or instances for which public notice was given, and the memoranda and minutes must certify no other matter was discussed.

The following are the dates of executive sessions I believe are in violation of Indiana Code regarding the requirements for memoranda. Copies of the documents mentioned are included. In summary, memoranda do not appear to exist at all for the 2013 executive sessions held Thursday, May 9, Thursday, June 3, Thursday, July 13, and Monday, July 1. The remainder of the meetings also do not appear to have memoranda, although some of the information required in a memoranda may appear in other documents, none are complete.

1. Dearborn County Redevelopment Commission Executive Session Thursday, May 9, 2013 I received a “courtesy notice” email from Dearborn County Administrator Teresa Randall at 5:34 p.m. Tuesday, May 7, 2013, stating “The next regularly scheduled County Redevelopment Commission is 4 p.m. on Thursday,

May 9th. (Commissioners Room) The Board will have an Executive Session at 3:30 p.m. Purpose: Under Statute Indiana Code 5-14-1.5-6.1 (b)(2)(D)- Purchase or lease of real property In response to my request for memoranda for the May 9, 2013, executive session I was given an agenda from the May 9 public meeting with written notes by Teresa Randall. A letter included with the materials state,“Again are her (Teresa Randall) personal notes from her agenda that she believed Paul did. No notes for minutes were turned it.”

Therefore a memoranda does not appear to exist for the Dearborn County Redevelopment Commission executive session held May 9, 2013.

2. Dearborn County Redevelopment Commission Executive Session Monday, June 3, 2013 I received an emailed executive session notice from the Dearborn County Redevelopment Commission at 9:52 a.m. Friday, May 31, 2013, that states “The Dearborn County Redevelopment Commission has called an executive session Monday, June 3, 2013 at 4:30 p.m. This meeting will be held for the sole purpose of discussing interviews with commercial prospect which is classified confidential by state and federal statutes IC 5-14-1.5-6.1(b) (4) This meeting will take place at the Administration Building, 3rd Floor Commissioners Room, 215 B West High Street, Lawrenceburg, IN 47025.”

In response to my request for memoranda for the Monday, June 3, 2013, executive session I was told “Appears to have been an Executive Session to receive information. There was not an agenda or minutes.” A handwritten note on the top corner of a letter included with my requested documents states, “no votes- only informational.”

Included is an email reminding Redevelopment Commission members of the executive session.

Therefore a memoranda does not appear to exist for the Dearborn County Redevelopment Commission meeting held June 3, 2013.

3. Dearborn County Redevelopment Commission Executive Session Thursday, June 13, 2013 I received an executive session notice from the Dearborn County Redevelopment Commission at 3:43 p.m. Monday, June 10, 2013, that states “The Dearborn County Redevelopment Commission has called an executive session Thursday, June 13, 2013 at 3:30 p.m. This meeting will be held for the sole purpose of discussing strategy with the respect to purchasing real property which is classified confidential by state and federal statutes. IC 5-141.5-6.1(b) (2) (D) This meeting will take place at the Administration Building, 3rd Floor Commissioners Room, 215 B West High Street, Lawrenceburg, IN 47025.”

In response to my request for memoranda for the Thursday, June 13, 2013, executive session I was told “There wasn’t an agenda as Terri’s sister-in-law passed away and she did not attend the meeting. Her email to the Board is what is attached as her notes.” In the email from Teresa Randall to the redevelopment board members, it states “PS ... Since you are discussing two confidential land acquisition/deals, I think you should call an Executive Session.

You could do this for 4 p.m. or 4:30 p.m. as desired. If you want to do this, you need to let Sue Hayden know on Monday. We must prepare the posting and have it up for 48 hours prior to the meeting time.”

Therefore a memoranda does not appear to exist for the Dearborn County Redevelopment Commission meeting held June 13, 2013.

4. Dearborn County Redevelopment Commission Executive Session Monday, July 1, 2013 I received an executive session notice from the Dearborn County Redevelopment Commission at 10:36 a.m.

Thursday, June 20, 2013, that states “The Dearborn County Redevelopment Commission has called an executive session Monday, July 1, 2013, at 4:00 p.m. This meeting will be held for the sole purpose of discussing strategy with the respect to purchasing real property which is classified confidential by state and federal statutes. IC 5-141.5-6.1(b) (2) (D) This meeting will take place at the Administration Building, 3rd Floor Commissioners Room, 215 B West High Street, Lawrenceburg, IN 47025.”

In response to my request for memoranda for the Monday, July 1, 2013, executive session I was told “there wasn’t a ‘formal’ agenda but the email that is attached was sent to Board. She (Teresa Randall) couldn’t locate hand written notes and didn’t believe any action was taken from Executive Session, but was going to check with Randy Maxwell to see if he had anything in files pertaining to that.” A handwritten note in the corner of a letter I received pertaining to my public records request states “no notes other than email.”

Therefore a memoranda does not appear to exist for the Dearborn County Redevelopment Commission meeting held July 1, 2013.

5. Dearborn County Redevelopment Commission Executive Session Thursday, July 18, 2013 I received an executive session notice from the Dearborn County Redevelopment Commission at 9:32 a.m. Tuesday, July 16, 2013, that states “The Dearborn County Redevelopment Commission has called an executive session Thursday, July 18, 2013, at 4:00 p.m. This meeting will be held for the sole purpose of discussing strategy with the respect to purchasing real property which is classified confidential by state and federal statutes. IC 5-14-1.56.1(b) (2) (D) This meeting will take place at the Administration Building 215 B West High Street, Lawrenceburg, IN 47025.”

In response to my request for memoranda for the Thursday, July 18, 2013, executive session I received the minutes for the Thursday, July 18, 2013, public meeting of the Dearborn County Redevelopment Commission.

In the public meeting minutes, it states a starting time, date and location of the public meeting, but does not specify if this was also the date and location of the executive session. A time is not provided for the executive session.

A list of people attending the public meeting is provided, but does not specify who attended the executive session.

Action of the executive session states “Motion made by Jim Deaton to approve and send letter discussed in Executive Session, Kevin Lynch second. All approved.” In the public meeting minutes the subject matter considered in the executive session is not identified by specific reference to the enumerated instance or instances for which public notice was given. The minutes also do not certify that no other matter was discussed.

Therefore a memoranda, at least a complete memoranda, does not appear to exist for the Dearborn County Redevelopment Commission meeting held July 18, 2013.

6. Dearborn County Redevelopment Commission Executive Session Thursday, Aug. 8, 2013 I received an executive session notice from the Dearborn County Redevelopment Commission at 4:01 p.m. Tuesday, Aug. 6, 2013, that states “The Dearborn County Redevelopment Commission has called an executive session Thursday, August 8, 2013 at 4:45 p.m. (later told it was 4 p.m., mistake due to typo). This meeting will be held for the sole purpose of discussing interviews with commercial prospect which is classified confidential by state

and federal statutes IC 5-14-1.5-6.1(b) (4) This meeting will take place at the Administration Building, 3rd Floor Commissioners Room, 215 B West High Street, Lawrenceburg, IN 47025.”

In response to my request for memoranda for the Thursday, Aug. 8, 2013, executive session I received the minutes for the Thursday, Aug. 8, 2013, public meeting of the Dearborn County Redevelopment Commission. On the typed minutes I received a hand-written message stating “no action required” for the executive session “but was not mentioned in the meeting.” The public meeting minutes only state “An Executive Session was held prior to the meeting.” The minutes mention the date, location and date of the public meeting, but not specifically the executive session. A list of members attending the public meeting is included in the minutes, but no mention if the same people attended the executive session. The subject matter of the executive session is not identified by specific reference to the enumerated instance or instances for which public notice was given. There also was nothing certifying no other matter was discussed.

Therefore a memoranda, at least a complete memoranda, does not appear to exist for the Dearborn County Redevelopment Commission meeting held Aug. 8, 2013.

7. Dearborn County Redevelopment Commission Executive Session Thursday, Sept. 12, 2013 I received an executive session notice from the Dearborn County Redevelopment Commission at 11:08 a.m. Monday, Sept. 9, 2013, that states “The Dearborn County Redevelopment Commission has called an executive session Thursday, Sept. 12, 2013, at 4:00 p.m. This meeting will be held for the sole purpose of discussing strategy with the respect to purchasing real property which is classified confidential by state and federal statutes. IC 5-14-1.56.1(b) (2) (D) This meeting will take place at the Administration Building, 3rd Floor Commissioners Room, 215 B West High Street, Lawrenceburg, IN 47025.”

In response to my request for memoranda for the Thursday, Sept. 12, 2013, executive session I received the minutes for the Thursday, Sept. 12, 2013, public meeting of the Dearborn County Redevelopment Commission. In the minutes, it states an executive session was held prior to the meeting. Although a date, time and location was mentioned for the public meeting, the minutes did not state the specific time, date and location of the executive session. The minutes also mention who attended the public meeting, but not the executive session. Action in the executive session is mention, but the subject matter of the executive session is not identified by specific reference to the enumerated instance or instances for which public notice was given. There also is nothing certifying no other matter was discussed.

Therefore a memoranda, at least a complete memoranda, does not appear to exist for the Dearborn County Redevelopment Commission meeting held Sept. 12, 2013.

8. Dearborn County Redevelopment Commission Executive Session Thursday, Nov. 21, 2013 I received an executive session notice from the Dearborn County Redevelopment Commission at 10:10 a.m.

Tuesday, Nov. 19, 2013, that states “The Dearborn County Redevelopment Commission has called an executive session Thursday, November 19, 2013 at 3:30 p.m. (Originally the public notice listed the meeting date as Nov. 19, but I was told in a follow-up email the date was a typo. The date of the meeting was Nov. 21.) “This meeting will be held for the sole purpose of discussing strategy with the respect to purchasing real property which is classified confidential by state and federal statutes. IC 5-14-1.5-6.1(b) (2) (D) This meeting will take place at the Administration Building, 3rd Floor Commissioners Room, 215 B West High Street, Lawrenceburg, IN 47025.”

In response to my request for memoranda for the Thursday, Nov. 21, 2013, executive session I received the minutes for the Thursday, Nov. 21, 2013, public meeting of the Dearborn County Redevelopment Commission. In

the minutes, it states action from the executive session. Although a date, time and location is mentioned for the public meeting, the minutes do not state the specific time, date and location of the executive session. The minutes also mention who attended the public meeting, but not specifically the executive session. The subject matter of the executive session was not identified by specific reference to the enumerated instance or instances for which public notice was given. There also is nothing certifying no other matter was discussed.

Therefore a memoranda, at least a complete memoranda, does not appear to exist for the Dearborn County Redevelopment Commission meeting held Nov. 21, 2013.

9. Dearborn County Redevelopment Commission Executive Session Thursday, Dec. 12, 2013 I received an executive session notice from the Dearborn County Redevelopment Commission at 4:38 p.m. Monday, Dec. 9, 2013, that states “The Dearborn County Redevelopment Commission has called an executive session Thursday, December 12, 2013, at 4:00 p.m. This meeting will be held for the sole purpose of discussing strategy with the respect to purchasing real property which is classified confidential by state and federal statutes. IC 5-141.5-6.1(b) (2) (D) This meeting will take place at the Administration Building, Commissioners Room, 215 B West High Street, Lawrenceburg, IN 47025.”

In response to my request for memoranda for the Thursday, Dec. 12, 2013, executive session I received the minutes for the Thursday, Dec. 12, 2013, public meeting of the Dearborn County Redevelopment Commission. In the minutes, it states under Action from Executive Session “none necessary.” Although a date, time and location was mentioned for the public meeting, the minutes do not state the specific time, date and location of the executive session. The minutes also mention who attended the public meeting, but not specifically the executive session.

The subject matter of the executive session was not identified by specific reference to the enumerated instance or instances for which public notice was given. There also is nothing certifying that no other matter was discussed.

Therefore a memoranda, at least a complete memoranda, does not appear to exist for the Dearborn County Redevelopment Commission meeting held Dec. 12, 2013.

126 W. High Street, Lawrenceburg, IN 47025 • PH 812-537-0063 • FAX 812-537-5576 May 12, 2014 Indiana Office of the Public Access Counselor: I am filing a formal complaint regarding a possible Indiana Open Door Violation committed by the Dearborn County Redevelopment Commission, Lawrenceburg, Ind. According to my research, board member discussion regarding a $10,000 payment from the Dearborn County Redevelopment Commission to Dearborn County Administrator Teresa “Terri” Randall for professional services appears to have taken place illegally.

During the period of time between March 2013 and December 2013, when Randall became involved with conducting work for the redevelopment commission, there appears to be no documentation of discussion regarding the $10,000 during public meetings, according to redevelopment commission minutes. Furthermore, none of the Indiana Code cited reasons provided by redevelopment commission executive session notices during this time period appear to cover a possible discussion regarding the $10,000 payment.

The only mention of the payment I can find is in the Dearborn County Redevelopment Commission Accounts Payable Voucher Register for Thursday, Dec. 12, 2013. The register lists a date of 12/12/13 for invoice No. 1 to claiment Terri Randall for $10,000 for professional services.

In the minutes for the commission’s Thursday, Dec. 12, 2013, public meeting, it states under claims, “Claims were submitted with a large claim which was covered by an enclosed check for Whitewater. This is a pass through for the grant monies. Jim Deaton motioned to approve payment of claims as submitted with a second by Dave Deddens. All approved.”

Although the list of expenditures that included the $10,000 was approved, without specific mention, during a public meeting, there appears to be no documentation of discussion leading up to how the decision was made to provide Randall with the money.

Subsequently, the $10,000 payment was stopped by Dearborn County Auditor Gayle Pennington. During a public meeting of the Dearborn County council held Tuesday, March 11, Pennington stated, in response to a question about the money, “We did have a claim come in from redevelopment. They thought it could be handled as an expense, but we have an IRS checklist as to whether you are an employee or you’re not. Well, Terri fits the checklist, so the IRS kicked back and said no, no, no, that’s an employee, you have to do it through payroll. It was already too late in the year to change the salary ordinance and to get it on payroll. So it had to come back before you (Dearborn County Council) as an additional now,” said Pennington.

Also during the March 11 county council meeting, which I recorded on video, Dearborn County Council member and Dearborn County Redevelopment Commission member Maynard Barrett stated, “It was decided by the

board to do this, as just a ... We thought we could this as a bonus. In fact it was approved by the board in the list of expenditures that month.”

His statement is a clear indication the redevelopment commission members had engaged in discussions regarding this $10,000 “bonus.” Yet any indication of discussion regarding this issue does not seem to appear in the public meeting minutes. It appears it also should not have been discussed during an executive session.

In the time period, March 2013 through December 2013, the following reasons were provided in notices for executive sessions: Thursday, April 11, 2013: IC-14-1.5-6.1 (b)(4) This meeting will be held for the sole purpose of discussing interviews with commercial prospect.

Thursday, May 9, 2013: IC-5-14-1.5-6.1 (b)(2)(D) This meeting will be held for the sole purpose of discussing strategy with the respect to purchasing real property.

Monday, June 9, 2013: IC-14-1.5-6.1 (b)(4) This meeting will be held for the sole purpose of discussing interviews with commercial prospect.

Thursday, June 13, 2013: IC 5-14-1.5-6.1(b) (2) (D) This meeting will be held for the sole purpose of discussing strategy with the respect to purchasing real property.

Monday, July 1, 2013: IC 5-14-1.5-6.1(b) (2) (D) This meeting will be held for the sole purpose of discussing strategy with the respect to purchasing real property.

Thursday, July 18, 2013: IC 5-14-1.5-6.1(b) (2) (D) This meeting will be held for the sole purpose of discussing strategy with the respect to purchasing real property.

Thursday, Aug. 8, 2013: IC-14-1.5-6.1 (b)(4) This meeting will be held for the sole purpose of discussing interviews with commercial prospect.

Thursday, Sept. 12, 2013: IC 5-14-1.5-6.1(b) (2) (D) This meeting will be held for the sole purpose of discussing strategy with the respect to purchasing real property.

Thursday, Nov. 21: IC 5-14-1.5-6.1(b) (2) (D) This meeting will be held for the sole purpose of discussing strategy with the respect to purchasing real property.

Thursday, Dec. 12, 2013: IC 5-14-1.5-6.1(b) (2) (D) This meeting will be held for the sole purpose of discussing strategy with the respect to purchasing real property.

On Monday, April 7, 2014, by email, I sent an Access to Public Records Act request to several Dearborn County, Ind., government offices and boards, including the Dearborn County Redevelopment Commission. Those requests included: * Memoranda for Dearborn County Redevelopment Commission executive sessions held from March 2013 through December 2013.” * “Dearborn County Redevelopment Commission claims and expenditures for the months of March 2013 through March 2014.”

Although the meetings occurred over 30 days ago, I am filing a formal complaint because I only discovered the violation after a Public Records Access request was fulfilled, less than 30 days ago, on Monday, April 28. I have

included a copy of the documents I have referenced in this complaint. I also can supply video of the March 11, 2013, if needed.

Thank you for your time. If you need any additional information from me regarding this complaint, please contact me at dburdette@registerpublications.com or 1-812-537-0063, ext. 106.

Denise Freitag Burdette Assistant News Editor The Journal-Press and The Dearborn County Register 126 W. High St./P.O. Box 4128 Lawrenceburg, IN 47025

Dearborn County Redevelopment Commission response to complaint letters Two letters, 7 pages

Date: May 26, 2014 (Via Email to: pac@icpr.in.gov) TO: Ms. Dale Brewer, Office of the Indiana Public Access Counselor FR: Dearborn County Redevelopment Commission, Lawrenceburg, IN 47025 RE: Response to Formal Complaint 14-FC-105 Below is the official response from the Dearborn County Redevelopment Commission (DCRC) regarding Formal Complaint 14-FC-105 and is filed on behalf of the individuals specifically named and those unnamed in the complaint that represent the entirety of the official DCRC Board.

This response has been prepared after a thorough review of the facts, thoughtful consideration of the concerns raised by the complainant, and with the utmost respect for the important rights of the citizens we serve as outlined in both the Indiana Open Door Law and Access to Public Records Act. PART 1 – RESPONSE (Allegations related to Open Door Law) Timeliness of Filing a Formal Complaint It is our contention that Ms. Freitag Burdette lacks standing to file a formal complaint under IC 5-14-5-6. We believe she was neither denied access to records nor denied entrance to any meetings. Indiana Code § 5-14-5-7(a) states that: “A person or a public agency that chooses to file a formal complaint with the counselor must file the complaint not later than thirty (30) days after: (1) the denial; or (2) the person filing the complaint receives notice in fact that a meeting was held by a public agency, if the meeting was conducted secretly or without notice.”

In 14-FC-105, Ms. Freitag Burdette alleges that matters were discussed at Executive Sessions that should not have been discussed in an Executive Session. If that be the case, then Ms. Freitag Burdette was effectively “denied” entrance to a discussion that should have been a public discussion.

Violation #1 is alleged to have occurred on September 12, 2013. In her statement (attached to the formal complaint), Ms. Freitag Burdette indicates “I am filing a formal complaint because I only discovered the violations after a Public Records Access request was fulfilled, less than 30 days ago, on Monday, April 28.” However, we have documentation to support the fact that Ms. Freitag Burdette was, in fact, in attendance at the meeting that took place on September 12, 2013.

While our Board does not record each member of the public who was present at a meeting, there is a local public forum/blog in which the blogger records the names of the individuals present at the meetings. The blogger also provides detailed notes to the public on what was discussed at every meeting. Exhibit A (attached) is a copy of the Public Forum/Blog resulting from the September 12, 2013 DCRC meeting. The notes state “Denise Freitag-Burdette covered meeting for Register Publications. Thus, Ms. Freitag Burdette, who had also received and was fully aware of the IC Code noted on the Public Notice of the September 12, 2013 meeting (see Exhibit B: Notice of 9/12/13 DCRC Executive Session) heard, first-hand, the details and specific actions taken by the DCRC immediately following Executive Session. At no time did Ms. Freitag Burdette raise concerns or make DCRC aware of her concerns (nor file a formal

complaint with your office) within the required 30 day timeframe. Following the statute, this complaint should have been filed within thirty (30) days of the “denial” or, in the case of these alleged violations, within thirty (30) days after these meetings occurred.

Furthermore, Ms. Freitag Burdette was given notice of every meeting held well in advance, therefore, the meetings were not held “secretly or without notice” as required by Indiana Code § 5-14-5-7(a)(2). As found in her own complaints, Ms. Freitag-Burdette was notified via email of each meeting that was taking place at least two (2) days prior to the meeting. There is no evidence of any secret meetings and/or meetings held without notice. Ms. Freitag-Burdette was notified of every meeting in question; therefore, for the complaints to have been timely filed, they would have had to have been filed within thirty (30) days of the meeting in question.

Ms. Freitag Burdette is attempting to assign a knowledge exception to the filing requirements of the formal complaint procedure by stating that she did not discover the violations until April 28, 2014, however, that exception is not found in the statute nor contemplated by it. The statute is very clear that a complainant has thirty (30) days to file from the date of the denial or receiving notice that a secret meeting was discovered. Ms. Freitag Burdette was notified of every meeting prior to the meeting occurred, so no meetings were held in secret. Seeing as how she does not qualify for (a)(2) of the statute, she must rely on (a)(1) and, if that is her argument, she had thirty (30) days from the date of the “denial” (i.e., the date of the meeting) to file her complaints. In the combined complaints, Ms. Freitag Burdette is alleging violations of the ODL and the APRA stretching from May 9, 2013 through December 12, 2013, however, her complaints were not filed until May 9 and May 12, 2014, respectively.

Based upon the foregoing, it is our belief that the complaints were not filed in a timely manner and the Public Access Counselor should offer an opinion in favor of the Dearborn County Redevelopment Commission for this reason as well as the reasons previously discussed.

NOTE (Response to Violation #1, Assuming the complaint is deemed by PAC to meet filing deadline for the complaint/denial): If the Office of the Public Access Counselor feels the complaint (specific to Violation #1 as noted in Ms. Freitag Burdette’s attachment) is interpreted to have been filed timely, we contend that the DCRC was under the impression that both items referred to in the complaint (under Violation #1) were allowable under IC 5-14-1.5-6.1(b)(2)(D) “discussing strategy with the respect to purchasing real property which is classified confidential by state and federal statutes.”

The basis of this contention is that the DCRC “incentive offer to Project C”(that was acted upon by the DCRC after Executive Session) involved a purchase of land on which the proposed business would locate. The land negotiations for that property were still in process and no deal had been reached with the seller.

As to the matter of “extending waterlines out to Project Millings and also improvements to the Hirlinger entrance,” both projects involved land transactions. The waterline issue with Project Milling was on the table because the property on which the lines were to be extended for the project was not owned by the company. Rather, they were owned by the DCRC and the land was in the process of being dispositioned to the Milling Company (through public hearings,

3 advertisements, etc.). Project Millings was in the process of receiving the land as a component of their incentive package but this had not yet occurred. The Hirlinger property and water line matter was a required component of a specific land purchase contract the DCRC had recently executed.

In retrospect, the DCRC concedes that it may have been advisable to also include IC code 5-141.5-6.1(b)(4) “Interviews and negotiations with industrial or commercial prospects or agents of industrial or commercial prospects by the Indiana economic development corporation, the office of tourism development, the Indiana finance authority, the ports of Indiana, an economic development commission, the Indiana state department of agriculture, a local economic development organization (as defined in IC 5-28-11-2(3)), or a governing body of a political subdivision.”) as an additional item on the Executive Session posting. This would have ensured there was no misinterpretation.

We ask the Public Access Counselor to consider the fact that this oversight did not occur because the DCRC knowingly and intentionally desired to withhold information from the public or desired to be secretive. This is demonstrated in the level of detail included in the motion that was made on this matter in the minutes of the September 12, 2013 meeting.

Complainant was never denied entrance to any Meetings In regard to the Open Door Law violations, Ms. Freitag Burdette was never denied entrance to any meetings. Quite the contrary; Ms. Freitag Burdette was notified via email of every meeting that was taking place, including when and where the meetings would be held. Ms. FreitagBurdette was given notice of every meeting held well in advance, therefore, the meetings were not held “secretly or without notice” as required by Indiana Code § 5-14-5-7(a)(2). As found in her own complaints, Ms. Freitag-Burdette was notified via email of each meeting that was taking place at least two (2) days prior to the meeting. There is no evidence of any secret meetings and/or meetings held without notice. Ms. Freitag-Burdette was notified of every meeting in question; therefore, for the complaints to have been timely filed, they would have had to have been filed within thirty (30) days of the meeting in question.

Ms. Freitag Burdette is an employee of Register Publications. Annually, the newspaper sends Dearborn County Government, as a whole, a written request for notification of all public meetings being held in the following year. In response to that letter of record from 2013 (for the year 2014), DCRC consistently sent Ms. Freitag Burdette a direct email in an effort to expedite her notification. We believe the process of notification exceeds the requirement of Indiana 5-141.5-5(b)(2) which states “Notices for executive sessions and additional open meetings must be delivered 48 hours before a meeting to news media which properly requested such notices.”

It is our understanding that statute only requires DCRC to notify Register Publications of meetings via U.S. Postal Service. By emailing the notice, DCRC was sincerely making an effort to get the notice to Ms. Freitag Burdette timely to make her aware of the meeting date/time when U.S. Mail delivery (which was the legal requirement) was not as timely. We believe we have shown good faith in exceeding statutory notice requirements due to our sincere desire to share the information and ensure Ms. Freitag Burdette had time to make arrangements to attend (and post on the newspaper website for the public, if desired).

It is important to note that the DCRC consistently complied with the Notice of Public Meeting Posting requirement which requires the notice of public meeting and executive sessions to be posted at the entrance of the location where the meeting is held in accordance with the prescribed timeline (48 hours in advance of the meeting). This Public Notice of Meeting posting was prepared and posted timely for every meeting and/or executive session held by the DCRC; including those Ms. Freitag Burdette questions in her complaint.

Response to Violation #2 Ms. Freitag Burdette provides documentation that the DCRC took action regarding application for grant monies. DCRC believes this was an error on their part and agrees that it does not qualify to be discussed under the IC code for purchase of real property. We contend that this was a procedural error with no intent to avoid public discussion or be secretive.

The DCRC Board makes note that the grants in question were, by virtue of the very process they require, were very public information (as are the general nature of governmental body grant funds). They became public record upon submission. The submission of the grant was not detrimental to the citizens of Dearborn County as the board was not making a decision to spend any funds; merely to apply for financial assistance. The grants were confusing to the board, in part, because the board was only a “sponsor� of the grants. The grant monies, if awarded, would fund projects that were not being led by the DCRC Board. The DCRC was merely the passthrough vehicle. While this does not excuse nor minimize the importance of the error, it helps explain why the DCRC board did not feel they were keeping information from the public in any way.

Clarification of Board Members: As a matter of record, it should be clarified that some of the individuals listed by name in the initial complaint notification letter were invited guests or speakers at the meeting(s). Randy Maxwell is a guest consultant. Susan Craig and Mary McCarty were invited from SIRPC to speak on a specific topic. Mark Neff sat in on behalf of the Chamber of Commerce. For the record, the members of the Dearborn County Redevelopment Commission are: Dave Deddens, President / Jim Deaton, Vice President / Jim Helms, Secretary / Maynard Barrett, Member / John Rahe, Member / Dusty Burress (non-voting School Board member). Terri Randall is County Administrator and Sue Hayden is the Executive Assistant to the County Commissioners.

These individuals were formally given responsibility for supporting the Dearborn County Redevelopment Commission in December 2013.

Date: May 26, 2014 (Via Email to: pac@icpr.in.gov) TO: Ms. Dale Brewer, Office of the Indiana Public Access Counselor FR: Dearborn County Redevelopment Commission, Lawrenceburg, IN 47025 RE: Response to Formal Complaint 14-FC-105 (PART 2) Below is the official response from the Dearborn County Redevelopment Commission (DCRC) regarding Formal Complaint 14-FC-105 and is filed on behalf of the individuals specifically named and those unnamed in the complaint that represent the entirety of the official DCRC Board. This is the second portion of a response to this complaint. This response applies to the portion of the complaint related to Public Records Access.

This response has been prepared after a thorough review of the facts, thoughtful consideration of the concerns raised by the complainant, and with the utmost respect for the important rights of the citizens we serve as outlined in both the Indiana Open Door Law and Access to Public Records Act. PART 2 – RESPONSE (Allegations related Public Records Access) No Records requested were denied or withheld (DCRC did not Violate APRA): Ms. Freitag Burdette was not denied any specific documents she requested in her public records request to the DCRC. We contend that the records requested did not exist; thus, they were not denied.

The complaint of several pages refers to specific meetings on multiple dates. However, the complaint is consistent relative to the availability and/or completeness of (specifically) “memoranda of Executive Sessions”. Thus, to avoid being overly repetitive in a response to each separate meeting date presented in the complaint, it seems reasonable to respond to the concerns raised about the documents collectively. The answer applies to all of the meetings noted in the complaint.

Executive Session Memoranda The DCRC admits that no memoranda of the “Executive Sessions” exist. The fact is that the DCRC board was unfamiliar with this component of the statute. DCRC was under the impression that the minutes of the meetings (in which members of the board present, the date, location, and time of the meetings were noted fulfilled requirements for the records that should be maintained) and the legal notices served as adequate documentation of the Executive Session.

The DCRC was not educated nor notified to the contrary by legal counsel whom we relied upon in such matters.

It is the practice of the DCRC for many years to hold Executive Sessions immediately prior to the regular meeting. Thus, the location of the Executive Session is the same as the location noted in the legal posting and minutes of the meeting. The same members who are present at the public meeting are present at the Executive Session as a general course of business.

Technical Compliance The DCRC notes that Ms. Freitag Burdette has found instances where some of the minutes (memoranda) did not have every item required to be contained in the records consistently noted every time. Of some confusion is the fact that Ms. Freitag Burdette seems, at times, to be referring to the regular meeting minutes and, at times, referring to Executive Sessions. The documents submitted by Ms. Freitag Burdette demonstrate the fact that the DCRC made a good faith effort in their minutes to record all pertinent facts about a meeting. Any inconsistencies in the exact format and content within the meetings were human error that was not caught by the DCRC members when they approved the minutes.

DCRC Response to the Public Records Request We willingly share the fact that, when the DCRC received the request for the “memoranda of the Executive Sessions” from Ms. Freitag Burdette, it was the first time DCRC became aware of the requirement related specifically to having a separate statement in the minutes (or a separate memoranda document) for Executive Sessions.

The DCRC believed it was important to acknowledge that fact to Ms. Freitag Burdette and did so in its response to her relative to that specific item within the records request. There was no attempt to create a memorandum that simply did not exist. Rather, the DCRC has accepted responsibility for its lack of understanding of this technical recordkeeping item and has taken steps to ensure the records are kept going forward in accordance with requirements outlined in the statute. Moreover, there was no denial of access to any records requested by Ms. Freitag Burdette.

Extenuating Circumstances The DCRC wishes to share with the Public Access Counselor’s office an unusual situation that occurred that resulted in some confusion on recordkeeping, especially during the period of April through August 2013.

For many years, the DCRC (a relatively low activity board) contracted with the local Economic Development public-private entity, the local CVTB, and the Chamber of Commerce for the services of two persons in their office to provide administrative support and guidance to the DCRC board. For those years, the financials, bank accounts, minutes, agendas, notices, and meetings for the DCRC were held outside Dearborn County Government offices. Frankly, while DCRC entity was a public entity by virtue of its creation under Indiana statute, it operated on its own; away from the day-to-day oversight of county officials beyond the volunteer DCRC members.

In April and May of 2013, the individuals who had been providing oversight and guidance to the DCRC were suddenly removed from their positions by their respective Boards of Directors. It was a tumultuous time because the DCRC was just beginning to increase its activity. Thus, the board was faced with no one to assist them at a time when things were getting very busy. In the face of this situation, the DCRC board first focused on clearing up the financial situation and arranging to bring the recordkeeping, bank accounts, and financials into the direct oversight of the County.

3 During that period, until the County Commissioners and County Auditor stepped in and offered major assistance in moving the finances, recordkeeping, and administrative support for the DCRC to the county under direct scrutiny and oversight, things were admittedly difficult. For example, there were meetings where minutes were taken by the contracted individual(s) and they were suddenly gone without having provided minutes to the board. However, after several months, the Commissioners officially designated the County Administrator and their Administrative Assistance to assist the DCRC. Both of these individuals had relied on the Auditor’s office heavily relative to recordkeeping for the Commissioners, posting of notices, executive sessions, minutes, etc. in her role as Secretary to the Commissioners under state statute. Thus, both of these individuals have had a learning curve in order to get things in order.

Good Faith Effort You will note that, DCRC made a true and sincere effort to be honest about the records that did not exist (including minutes that were never taken for some of the meetings). In its response, though not required to provide anything other than the records requested, DCRC did its best to provide Ms. Freitag Burdette with the information she was seeking. In fact, in the case of meeting minutes that were not taken nor presented or approved at any DCRC meetings, the County Administrator provided Ms. Freitag Burdette her personal notes and emails relative to the meetings in question (though this was not specifically requested from the complainant) in an effort to provide her with details of the meetings. Additionally, Ms. Randall (County Administrator who handled the public records response for DCRC) offered to answer questions and speak to Ms. Freitag Burdette about any concerns.

Closing Summation The DCRC truly did not know they were required to certify by a statement in the memoranda and/or minutes of the DCRC body that no subject matter was discussed in the executive session other than the subject matter specified in the public notice. However, our Board has now developed a standard process and format for this requirement and has made remedy for this error going forward.

Indiana Public Access Counselor advisory opinion and addendum Two letters, 6 pages

STATE OF INDIANA MICHAEL R. PENCE, Governor

PUBLIC ACCESS COUNSELOR LUKE H. BRITT Indiana Government Center South 402 West Washington Street, Room W470 Indianapolis, Indiana 46204-2745 Telephone: (317)233-9435 Fax: (317)233-3091 1-800-228-6013 www.IN.gov/pac

June 10, 2014

Ms. Denise L. Freitag Burdette 126 W. High St. P.O. Box 4128 Lawrenceburg, IN 47025 Re: Formal Complaint 14-FC-105 (consolidated); Alleged Violation of the Access to Public Records Act and the Open Door Law by the Dearborn County Redevelopment Commission Dear Ms. Freitag Burdette, This advisory opinion is in response to your formal complaint alleging the Dearborn County Redevelopment Commission (“Commission”) and violated the Access to Public Records Act (“APRA”), Ind. Code § 5-14-3-1 et. seq. and the Open Door Law (“ODL”) Ind. Code § 5-14-3-1 et. seq. The Commission provided a response to your complaint via Dearborn County Administrator, Terri Randall. The Commission’s response is attached for your review. Pursuant to Ind. Code § 5-14-5-10, I issue the following opinion to your formal complaint received by the Office of the Public Access Counselor on May 12, 2014.

BACKGROUND Your complaints dated May 12, 2014 alleges the Dearborn County Redevelopment Commission violated the Open Door Law by failing to keep memoranda of executive sessions and by holding discussions during executive sessions which were not advertised by proper notice. Additionally, you allege the Commission violated the Access to Public Records Act by not maintaining executive session memoranda.

Your first complaint alleges two violations. The first is in relation to a September 12, 2013 executive session ,in which timely notice was given that the Commission would be discussing subject matter authorized by Ind. Code § 5-14-1.5-6.1(b)(2)(D) – strategy with respect to purchasing real property. A public meeting was subsequently held during which minutes were taken and ultimately ratified. The minutes indicate two discussion items took place during the executive session which may not have related to the advertised subject matter as being strategy with respect to purchasing real property. A similar scenario occurred on November 21, 2013 when the Commission again met in

executive session to discuss strategy with respect to purchasing real property. Again, the public meeting minutes from later that day indicate different subject matter. Similarly, you allege a discussion for application of grant monies may have taken place in a forum outside a public meeting with no notice.

Your following complaint alleges multiple violations of the Open Door Law and the Access to Public Records Act alleging the Commission did not have the required memoranda pursuant to Ind. Code ยง 5-14-1.5-6.1 for their executive session for several meetings in 2013. You also contend the absence of these records is a violation of the Access to Public Records Act as the Commission has been unable to fully satisfy your public records request.

The Commission has responded arguing your first formal complaint was untimely as the executive session discussions took place well outside the timeframe for filing with the Public Access Office as set forth in Ind. Code ยง 5-14-5-7 et. seq. The Commission reasons the minutes of the public meetings were approved and made available in the fall of 2013, well before the filing of your formal complaint. It argues you would have had notice of the executive session subject matter as they regularly provide notice to you as a member of the media. It also states the Commission is in technical compliance with the Open Door Law and it has made a good faith effort to comply albeit some minor discrepancies.

TIMELINESS Speaking to the timeliness of your complaints, Ind. Code ยง 5-14-5-7 (a) states: A person or a public agency that chooses to file a formal complaint with the counselor must file the complaint not later than thirty (30) days after: (1) the denial; or (2) the person filing the complaint receives notice in fact that a meeting was held by a public agency, if the meeting was conducted secretly or without notice.

You contend your complaints are timely because you only recently learned of the alleged violations subsequent to an Access to Public Records Act made on April 7, 2014 and (partially) satisfied on April 28, 2014. You state your notice in fact was triggered on April 28; therefore the filing of your complaint to this Office on May 12, 2013 is timely.

In regard to the first two violations, the timeliness of the complaint rests solely on a factual determination. If you were present at the public meetings subsequent to the executive session or had access to the minutes of those meetings (i.e. they were conspicuously posted online or distributed to you), then you would have been put on notice of the violation. I have since confirmed with you that you may have been at those meetings. Therefore, the discussions below addressing the subject matter of executive sessions are for educational purposes only. This only applies to September and November 2013 meetings. The purpose of the grant monies obliquely referenced in the December 2013 was only discovered pursuant to your April 2014 APRA request.

Although the missing memoranda were to be prepared pursuant to executive sessions held in 2013, you only recently discovered their non-existence in April 2014. Your Access to Public Records Act request was a condition precedent to your awareness of their absence. Therefore your formal complaint as to these violations is timely as well.

DISCUSSION It is the intent of the Open Door Law (ODL) the official action of public agencies be conducted and taken openly, unless otherwise expressly provided by statute, in order that the people may be fully informed. See Ind. Code § 5-14-1.5-1. Accordingly, except as provided in section 6.1 of the ODL, all meetings of the governing bodies of public agencies must be open at all times for the purpose of permitting members of the public to observe and record them. See Ind. Code § 5-14-1.5-3(a).

Ind. Code § 5-14-1.5-6.1(d) states public notice of executive sessions must state the subject matter by specific reference to the enumerated instance or instances for which executive sessions may be held. All of the subject matters intended to be discussed fall under the permissible discussion topics for a closed door executive session under the ODL. Notice of an executive session must be given 48 hours in advance of every session, excluding holidays and weekends, and must contain, in addition to the date, time and location of the meeting, a statement of the subject matter by specific reference to the enumerated instance or instances for which executive sessions may be held. See Ind. Code § 5-14-1.5-6.1(d). This requires that the notice recite the language of the statute and the citation to the specific instance; hence, “To discuss a job performance evaluation of an individual employee, pursuant to Ind. Code § 5-14-1.5-6.1(b)(9)” would satisfy the requirements of an executive session notice.

The Commission does not dispute the executive session discussion topics fell outside the noticed subject matter. Strategy with respect to purchasing real property does not include funding to extend waterlines, property improvement, or grant money pass-through. These matters should either be discussed in public or placed on an executive session notice, if applicable. The Commission should be particularly mindful of the added scrutiny which comes with closed door meetings and make every effort to be as transparent as the law requires, if not more so.

Turning to the executive session memoranda, or absence thereof, the purpose of the requirement is to verify no other non-permissible subject matter is discussed behind closed doors. The Indiana General Assembly has made this clear in Ind. Code § 5-14-1.56.1(d): [executive session] memoranda and minutes must identify the subject matter considered by specific reference to the enumerated instance or instances for which public notice was given. The governing body shall

certify by a statement in the memoranda and minutes of the governing body that no subject matter was discussed in the executive session other than the subject matter specified in the public notice.

The Commission concedes the memoranda are absent, but argues it was an inadvertent mistake. While I appreciate the acknowledgment and candor in its concession, a public agency cannot be ignorant of the laws protecting public access. In fact, access is one of the essential responsibilities of government as they are the stewards of the citizenry’s resources. I trust that pursuant to these recommendations, the Commission will comply with the Open Door Law in the future. While good faith efforts may be acceptable in the private sector, public servants are held to a higher standard when it comes to transparency and access.

You also allege the Commission has violated the APRA by not creating and thus producing the memoranda. While the failure to create memoranda is a violation of the Open Door Law, the Access to Public Records Act does not require a public agency to create or generate records pursuant to a records request. The APRA defines a public record as something already in existence when a request is made. See Ind. Code § 5-14-32(o) CONCLUSION For the foregoing reasons, it is the Opinion of the Indiana Public Access Counselor the Dearborn County Redevelopment Commission has violated the Open Door Law, but not the Access to Public Records Act.

Regards,

Luke H. Britt Public Access Counselor

Cc: Terri Randall