Legal Notice Before Legal Action

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Legal Notice Before Legal Action Powered By Docstoc
					Open Door Law,
Public Records Law,
Retention Laws
December 1, 2009, Breakout “A”
Election Administrator‟s Conference
Where can I find
these laws?
   Open Door Law (Indiana Code 5-14-
    1.5), pages 481-487 of 2010 Election
    Code
   Public Records Law (Indiana Code 5-
    14-3), pages 487-500 of 2010 Election
    Code, and certain sections in IC 3-7
    concerning voter registration records.
   State Record Retention Law (Indiana
    Code 3-10-1-31.1), page 222 of 2010
    Election Code; cross-references in laws
    about other types of elections.
Basic Open Door
Law Questions:
   When is there a “meeting”?
   How much notice must be given?
   What kind of notice must be given?
   Does there have to be an agenda?
   When can there be an “executive
    session”?
   Can there be a “secret ballot”?
   What if the law isn‟t followed?
Is this a “meeting”?
   A gathering of a majority of the
    County Election Board to take
    “official action”, such as receiving
    information, deliberate, make
    recommendations or decisions.
   Exemption: social or chance
    gatherings not intended to evade
    law
   Exemption: traveling to or
    attending better government
    meetings.
Circuit court clerk;
board of
registration
   A “governing body” means two (2)
    or more individuals who are
    exercising legal authority and
    making decisions.
   Circuit court clerk is only one
    individual.
   Board of Voter Registration is two
    person body. No specific
    exemption from law‟s
    requirements.
Notice requirements
   At least 48 hours notice (not
    including Saturdays, Sundays, or
    legal holidays).
   Media annual notice requirement:
    US mail, email, or fax.
   Exemption: Reconvened meetings
    when time and place of
    reconvened meeting announced at
    properly noticed meeting.
A “real emergency”
   “Actual or threatened injury to
    person or property”
   “Actual of threatened disruption” of
    government activity under authority
    of office.
   48 hour notice does not apply;
    instead, news media given same
    notice as board members; notice of
    meeting posted for public.
Risk of “running
late”
   If meeting convenes at time “so
    unreasonably departing from the
    time stated in its public notice that
    public misled or substantially
    deprived of opportunity to attend”
    then meeting has not met notice
    requirements.
   No set time limit. Have presence at
    meeting site, announcement about
    delay.
“I’ll just whisper”:
How notice is given
   Posting copy of notice “at principal office
    of the agency conducting the meeting”
   Not necessary outside actual meeting
    room. But location must be specified in
    notice.
   Legal publication of notice not required.
   Ask county attorney about newspaper
    legal notice requirements for penalty
    ordinances. (Indiana Code 5-3-1-2)
Regularly
scheduled meetings
   Consider possibility of regularly
    scheduled meetings (once a
    month, for example), which can be
    cancelled if no important business.
   Notice only given once a year.
    Additional notice necessary only if
    time, date, or place of regular
    meeting changed.
Agendas
   Agenda not required to be used.
   If agenda is used, must be posted
    “at entrance to location of meeting”
    before the meeting occurs.
   Cannot adopt item by “agenda
    number” only. “Move to adopt item
    5 on the agenda…”
“Minutes” and
Memoranda
   “Minutes” generally not required.
    Consider risk of litigation, using tape
    recordings, etc.
   Memoranda must be available within
    reasonable time after meeting to inform
    public of proceedings.
   Memoranda must include: date, time,
    and place of meeting; members present
    and absent; “general substance” of
    matters discussed or decided; record of
    all votes taken, by individual member if
    roll call.
Secret Ballots?
   A secret ballot vote may not be
    taken at meeting. (IC 5-14-1.5-3).
   Only time secret ballots permitted
    in election law are on election day,
    and during political party caucuses.
“Executive
Sessions”
   What is an “executive session”?
   When can a board have one?
     Where authorized by law: Missouri
      rule – “Show me where it says…”
     Litigation discussion and strategy;
      lawsuit filed or threatened in
      writing.
     Discussion of confidential records.
Executive Sessions
   Public notice must identify specific
    law that allows executive session.
   Impromptu executive sessions not
    allowed: “Governing body may not
    conduct executive session during a
    meeting… A meeting may not be
    recessed and reconvened…” with
    intent to evade Open Door Law.
   Certification of compliance
    required.
Executive Session
Certification and
Minutes
   INDIANA ELECTION COMMISSION EXECUTIVE
    SESSION MINUTES OF DATE
   MEMBERS PRESENT: Listed by name MEMBERS
    ABSENT: None; OTHERS PRESENT: Listed by
    name
   CALL TO ORDER: Chair called the date executive
    session of the Indiana Election Commission to order at
    time, location. Chair noted quorum.
   REMARKS BY THE CHAIR: As required by Indiana
    Code 5-14-1.5-6.1(d), the chair noted that this
    executive session had been called under IC 5-14-1.5-
    6.1(b)(2)(B) for the discussion of strategy with respect
    to the initiation of litigation or litigation that was either
    pending or had been threatened specifically in writing.
    The chair added that the required public notice for this
    executive session meeting had been given under the
    Indiana Open Door Law.
Executive Session
Certification and
Minutes
   EXECUTIVE SESSION BUSINESS: The Commission
    proceeded to conduct the business for which the executive
    session was called.
   ADJOURNMENT: Mr. A moved, seconded by Mr. B, that the
    Commission do now adjourn its executive session. The chair
    called the question, and with four members voting aye
    (Names listed) and no member voting nay, declared the
    motion adopted unanimously. The Commission then
    adjourned at 1:45 p.m.
   Respectfully submitted, Secretary
   APPROVED: Chair

   CERTIFICATION As required by Indiana Code 5-14-1.5-
    6.1(d), we, the undersigned members of the Indiana Election
    Commission, certify that no subject matter was discussed in
    this executive session other than the subject matter specified
    in the public notice.
   Signature lines for each member present.
What if the Open Door
Law Isn’t Followed?
   Potential lawsuit (IC 5-14-1.5-7)
   Can ask for court to “declare void
    any policy, decision, or final action”
    taken at improper executive
    session or regular meeting held
    without required notice.
   Generally, must be filed within 30
    days after date of “action
    complained of” or date person
    “should have known” of action.
What if the Open Door
Law Isn’t Followed?
   Court determines whether to “void”
    agency action after deciding extent to
    which violation affected public‟s
    “knowledge or understanding” of
    agency‟s decision.
   Court also looks at reliance on decision
    by the public and what effect declaring
    the action void would have. (Campaign
    finance fine versus election canvass, for
    example).
   Cooperation with Public Access
    Counselor.
Who is the Public
Access Counselor?
   Independent state office created to
    advise public and governing bodies
    about Open Door Law and Public
    Records Law:
   Contact: Andrew Kossack, 402
    West Washington St, Room W460,
    Indianapolis, IN 46204;
   (317) 233-9435
Basic Public Record
Law Questions:
   Which records are “public”?
   What discretion does an agency
    have?
   What about records with some
    confidential information?
   How does an agency respond to a
    public records request?
   What if the law isn‟t followed?
“Public” Records;
The Missouri Rule:
   Begin with assumption that any
    agency record is available for
    public inspection and copying.
   The magic word: “Show Me where
    it says that a record is, or can be,
    „confidential‟.”
   If not, then the document is public
    record.
Election-Related
Public Records
Issues:
   Absentee application and ballot
    information. IC 3-11-4-17 requires
    Clerk keep record of absentee
    ballot applications sent, ballots
    sent, and ballots returned. Not
    “confidential”
   Original voter registration
    application: IC 3-7-27-12 provides
    that forms be available for
    inspection and copying.
Election-Related
Public Records
Issues:
   Voter registration transfers,
    cancellations, etc. Public records
    under IC 3-7-27-12.
   Poll Lists, other Precinct Forms:
    Must be “sealed and preserved”,
    but are available for inspection and
    copying.
   Original marked ballots: IC 3-10-
    1-31.1 These ballots are
    confidential.
Election-Related
Public Records
Issues:
Electronic Voter Registration Records:
 Depends on policy REQUIRED to be
  adopted by county election board
  under IC 3-7-27-6(c).
 If you don’t know what your county’s
  policy is, or have a written copy of it,
  GET ONE!
 Must be “uniform and
  nondiscriminatory”. Choice is whether
  to make available to all, or none. If
  available, for standard fee.
Agency Discretion
Concerning Public
Records:
   Basic choice: Do you create a
    public record or not? Many
    records not REQUIRED to be
    created, but once created, are
    public records.
   Written request or use of form
    can be required by agency
    policy. (IC 5-14-3-3).
   No charge for inspection; limited
    charges for copying (IC 5-14-3-8)
“Partially
Confidential”
Records:
   Classic example: “Legacy” voter
    registration applications with
    full Social Security number.
   Public record with confidential
    information can have confidential
    material “separated” before
    inspection. (IC 5-14-3-7)
   Suggested practice: Photocopy
    original and “redact” confidential
    information on copy.
Public Records
Request:
   In person: Respond within 24
    hours of request.
   In writing: Respond within 7
    days after request received.
   “Respond” does not mean make
    photocopies of documents
    requested. Instead, means indicate
    if agency will comply with request,
    how, and when.
What if the Public
Records Law Isn’t
Followed?
   Lawsuit can be filed in circuit or
    superior court. (IC 5-14-3-9)
   Burden is on public agency to
    prove that inspection and
    copying should not be allowed.
   Court can award attorney’s fees
    to requestor, or to government
    agency, if court finds that
    requestor “substantially
    prevailed”, or if requestor’s
    lawsuit was frivolous.
Record Retention
Laws: Everything
Isn’t “Dust in the
Wind”.
   What records must be kept
    forever?
   When can certain records be
    disposed of?
   How does the agency dispose of
    records?
Record Retention:
What is kept
forever?
   CEB and Board of Registration
    minutes, orders, policies.
   Sample(s) of official ballot.
   Canvassed precinct election
    results.
Record Retention:
When can it be
tossed?
   Unvoted ballots: after recount and
    contest deadline.
   Voter Registration declinations,
    and cancelled records: 24 months
    after applicable election.
   Voted ballots, Absentee Ballot
    Applications, Poll Lists: 24 months
    after applicable election.
Record Retention:
When can it be
tossed?
   Original Voter Registration
    Records: Keep as long as person
    is registered to vote (active or
    inactive), then dispose of 24
    months after cancellation.
Record Retention:
Local Commission
on Public Records
   Local Commission on Public
    Records meeting required to
    dispose of some documents.
   Members are county and municipal
    officials. IC 5-15-6.
   Local retention schedule for
    records may have been adopted.
   If meeting needed, can be a 5
    minute lunch break.
State Commission
on Public Records:

402 West Washington St, Room
  W472, Indianapolis, IN 46204;
 (317) 232-3380
Questions?

Thanks,

Brad King
Co-Director, Indiana Election Division
(317) 233-0929 (direct)
bking@iec.in.gov

				
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