Marion County Sheriff's Merit Bd. v. Peoples Broadcasting Corp., 41A01-8711-CV-296

• Decision Date: 22 November 1988
• Docket Number: No. 41A01-8711-CV-296,41A01-8711-CV-296
• Citation: 530 N.E.2d 755
• Parties: MARION COUNTY SHERIFF'S MERIT BOARD and James L. Wells, Marion County Sheriff, in his official capacity, Appellants (Defendants Below), and Michael R. Berry and Rex E. Thompson, Individually and as Marion County Sheriff's Deputies, Appellants (Third Party Plaintiffs Below), v. PEOPLES BROADCASTING CORP., Videoindiana, Inc., Susquehana Broadcasting Co., Inc., d/b/a Radioindianapolis, Inc., Tel-Am Corp., McGraw-Hill Broadcasting Corp., Inc., Steven E. Sweitzer, Michael J. Androvett, Joseph Hallinan, and Indianapolis Newspapers, Inc., Appellees (Plaintiffs Below).
• Court: Indiana Appellate Court

Page 755

530 N.E.2d 755

MARION COUNTY SHERIFF'S MERIT BOARD and James L. Wells Marion County Sheriff, in his official capacity Appellants (Defendants Below) and Michael R. Berry and Rex E. Thompson, Individually and as Marion County Sheriff's Deputies, Appellants (Third Party Plaintiffs Below), v. PEOPLES BROADCASTING CORP., Videoindiana, Inc., Susquehana Broadcasting Co., Inc., d/b/a Radioindianapolis, Inc. Tel-Am Corp., McGraw-Hill Broadcasting Corp., Inc., Steven E. Sweitzer, Michael J. Androvett, Joseph Hallinan, and Indianapolis Newspapers, Inc., Appellees (Plaintiffs Below).

No. 41A01-8711-CV-296.

Court of Appeals of Indiana, First District.

Nov. 22, 1988.

Rehearing Denied Jan. 10, 1989.

Barbara Malone, Asst. Corp. Counsel, City-County Legal Div., John C. Ruckelshaus, John F. Kautzman, Ruckelshaus, Roland, Hasbrook & O'Connor, Indianapolis, for appellants.

Richard A. Waples, Indiana Civil Liberties Union, Robert P. Johnstone, Jan M. Carroll, Barnes & Thornburg, Indianapolis, for appellees.

ROBERTSON, Judge.

The progenitor of this appeal is Berry v. Peoples Broadcasting Corp. (1987), Ind.App., 514 N.E.2d 1283, transfer pending. In that case it was held that a county sheriff's merit board hearing investigating charges of deputies' misconduct is to be open to the public and that the news media is entitled to make reasonable use of the appliances of their trade at such a hearing.

By appropriate procedure the same case returns for our additional consideration of the issue of whether the deliberative session of the same board is subject to the Indiana Open Door Law, IND. CODE 5-14-1.5-1, et seq. For the reason stated below we hold that the deliberative session of the board is subject to the Open Door Law and that it should be open to the public.

I.C. 5-14-1.5-1 states that the official action of public agencies is to be conducted and taken openly unless otherwise provided by statute. It further provides that the purposes of the Open Door Law are remedial and are to be liberally construed with the view of carrying out that policy.

I.C. 5-14-1.5-6 provides a specific listing of a number of instances where public agencies are authorized to meet in executive session. An executive session is a meeting from which the public is excluded. I.C. 5-14-1.5-2(f). Of the occasions so enumerated as situations where an executive session is authorized none makes mention of the deliberative process. We can only conclude that since the deliberative process is excluded from the list of occasions where an executive session is allowed that the legislature intended for it to be open to the public and we so hold.

The appellants Berry and Thompson argue that two sections of I.C. 5-14-1.5-6 would permit the deliberative portion of the proceedings to be held in executive session. Those sections are 5-14-1.5-6(a)(5) and (8) which state that executive sessions may be held when:

(5) with respect to any individual over whom the governing body has jurisdiction;

(A) to receive information concerning the individual's alleged misconduct; and

(B) to discuss prior to any determination, that individual's status as an employee, ...

and

(8) to discuss job performance evaluation of individual employees....

We are of the opinion that reliance upon these two provisions is misplaced in that they do not address the situation on appeal. We are not faced with a discussion prior to a determination of any status as an employee. Neither is this a situation of job performance of an individual employee as used in the context of the statute.

While taking note of the policy arguments in favor of reversing the trial court, we observe that the legislature failed to respond to changes in the law which sought to exclude the deliberative process from public view. (Peoples Broadcasting et al., brief, pp. A-13 et seq.). Neither are we persuaded by the argument which compares the sheriff's merit board with that of a jury. The comparison is not pertinent to the issue.

JUDGMENT AFFIRMED.

NEAL, J., concurs.

CONOVER, P.J., dissents with separate opinion.

CONOVER, Presiding Judge, dissenting.

I respectfully dissent.

My concurrence in Berry v. Peoples Broadcasting Corp. (1988), Ind.App., 514 N.E.2d 1283, was founded upon the belief the evidentiary portion of a disciplinary hearing by the Sheriff's Merit Board must be conducted openly and reporters permitted, subject to reasonable restriction, to use television cameras and tape recorders while the Board takes evidence in the case pending before it because the Indiana Open Door Law applies to that part of those proceedings. However, I here dissent because the majority's opinion goes beyond the holding in Berry.

When considering cases of this nature, the Board performs a quasi-judicial function. At the conclusion of the evidence, the Board while deliberating prior to rendering a decision, in essence, functions as a jury. The legislature simply did...