Remember back in October when state Superintendent Glenda Ritz sued her 10 fellow members of the Indiana State Board of Education?
A judge tossed out Ritz’s suit the following month, saying she didn’t have the authority to bring a lawsuit against the rest of the board. But the central issue — Ritz’s argument that the state board broke the law by holding a secret meeting without telling her or the public — isn’t settled.
Last week, a different judge heard testimony in a different lawsuit making the same charge: that email conversations held by state board members in October, and a resulting letter from the board to legislative leaders, constituted an official meeting that was held in violation of state laws requiring that public boards make decisions in public meetings.
“Official actions must be taken openly rather than in secret,” argued attorney William R. Groth, representing the plaintiffs in Eiler et. al. vs. State Board of Education in a mostly empty courtroom. “The people should be kept fully informed of the affairs of their government. The government is a servant of the people and not the other way around.”
The letter from all board members except Ritz asked to have the Legislative Service Agency calculate A to F grades for schools. Board members felt Ritz was dragging her feet on releasing the grades. But Ritz countered that the release was delayed because of online testing glitches and other problems. The grades were finally released in December, more than a month later than in the prior year.
This lawsuit, filed on Dec. 4 just days after Ritz’s own legal effort failed, includes Ed Eiler as one of four plaintiffs. How the suit came to be filed isn’t completely clear. Eiler, a Purdue professor and former school superintendent in Lafayette, said last year he was recruited to join the suit. Groth said he didn’t recruit anyone. Other plaintiffs include Merrillville schools Superintendent Anthony Lux; Catherine Fuentes-Rohwer, who chairs a Bloomington-based public school advocacy group; and Fort Wayne resident Julie Hollingsworth.
The state board is again trying to get the suit dismissed, arguing that communication over email did not qualify as a meeting, assistant Attorney General David Arthur told Judge Cynthia Ayers at the hearing.
“When there is no meeting, there is No Open Door law application,” Arthur said in court.
The Attorney General Greg Zoeller’s office had no further comment on the case.
“We await a ruling from the court,” said spokesman Bryan Corbin. “As this is pending litigation, it would not be appropriate for this office to comment further.”
Groth said the case is important because it could clarify the rules should questions about email decisions come up with other public boards.
“If one public official can send an email to another public official and conduct public business and take final action, the public will never know beforehand,” Groth said. “The main goal is to make sure that the state officials comply with the legal obligations under the Open Door Law and conduct public business in the open, not behind closed doors or in cyberspace.”
Stephen Key, president of the Hoosier State Press Association, believes the case could address a weakness in state law.
“This is may be a case where technology is ahead of the statute,” Key said. “It is a legitimate concern because now you have a situation where decisions can be made by email and the public doesn’t see the back and forth debate going on. It’s a problem area.”
The suit is no longer about state board politics, Groth said, or the ongoing disagreements between Ritz and the rest of the board.
“We’re not getting into the weeds of all the conflicts and policy disputes between the state board and Ritz,” Groth said. “But it did strike me that there was an important issue here. It’s going to set back the cause for transparency in government. That ought to be a matter of concern to all citizens.”
What are the suit’s chances?
The long lag in getting to last week’s hearing — six months — isn’t encouraging for the plaintiffs, Groth acknowledged. Nor is the fact that the court granted the state’s request for a stay of discovery, meaning that Groth can’t conduct depositions, interviews or ask for other information pertaining to the case.
But the Groth, Eiler and the others say they will fight on.
“Hopefully things will start moving faster,” Groth said. “If the court does dismiss the case, I’m confident we’ll take an appeal.”