Controversial public access counselor change goes to governor

Mar. 6—Language that critics argue could gut the role of Indiana's public access counselor and lead to less transparency in government cleared the Indiana House on Wednesday and is headed to Gov. Eric Holcomb.

House Bill 1338 gives guidelines to local governments on how to deal with disruptive conduct at public meetings; it won final passage in the House on Wednesday on a 58-36 roll call vote.

Within the bill is an amendment by state Sen. Aaron Freeman, R-Indianapolis, that says the public access counselor, when issuing an advisory opinion, "may consider only the plain text of the public access laws and valid Indiana court opinions."

The law creating the counselor's office directs the appointee to interpret the laws, but statutes setting up open meeting and public records access processes say they should be liberally construed. House Bill House Bill 1338, as amended, limits those interpretations.

Additionally, it says the public access counselor would serve "at the pleasure of the governor." Currently, the governor appoints a public access counselor for a four-year term, and the counselor can be dismissed only for cause.

Critics of the amendment fear the counselor's post will become politicized if the counselor can be dismissed at any moment. Further, they contend statute and existing state case law do not always provide proper depth and context, and they say limiting the counselor's ability to cite other sources — for example, a law dictionary — needlessly binds the counselor.

The state's current public access counselor, Luke Britt, declined to comment, citing pending legislation. "I defer to lawmakers on that and only provide input when invited to do so by them," he wrote in an email to Indiana Capital Chronicle.

Critics also panned the way the language became legislation — slipped into a popular bill as an amendment late in the session and not getting a full legislative-process airing.

The Hoosier State Press Association, for instance, supported the original bill even though it opposed the amendment.

"The process was not the cleanest, the most democratic, by any means. A lot of stakeholders were kind of blindsided by, it so we're finding ourselves playing catch up a little bit," HSPA executive director/general counsel Ameila McClure said early in the week.

Holcomb now has the option of signing the bill into law or vetoing it with a request that lawmakers strike specific language.

Among Wabash Valley state representatives, Republicans Bob Heaton of Terre Haute, Alan Morrison of Brazil, and Bruce Borders of Jasonville voted for the bill on Wednesday. Democrat Tony Pfaff of Terre Haute voted against.

The Indiana Capital Chronicle also contributed to this report.

Contact Mark Fitton at 812-231-4333 or mark.fitton@tribstar.com.