MOORESVILLE — The Mooresville school board voted May 13 to approve a settlement agreement between the school district and The Morgan County Correspondent.
The agreement settles all disputes between the district and The Correspondent stemming from a civil lawsuit filed by the newspaper in the Morgan County Circuit Court late last year.
The Correspondent’s civil complaint — filed Dec. 24, 2024, by Kris Cundiff, an Indiana-based attorney with the Reporters Committee For Freedom of the Press, a national organization devoted to First Amendment freedoms — alleged that Mooresville Schools violated Indiana Open Door Laws when appointing school board member Deon Brimmage following the death of previous board vice president William Roberson last October.
In the settlement agreement, the board agrees to hold public interviews for board appointments in the future and solicit public comment, in addition to paying legal fees.
Background
In the event that a school board member dies in office, state law permits boards 30 days to fill the vacancy. If 30 days pass and a vacancy has not been filled, a judge will decide who will fill the seat.
The Mooresville school board had not found a replacement for Roberson by the end of October 2024, and so voted to shift board president Matt Saner from the at-large seat to the Brown Township seat. This, in effect, filled the vacancy but created a new one, giving the board 30 more days to find a fifth member.
Indiana Code says when a board is filling a vacancy, it may hold executive sessions to “develop a list of prospective employees, consider applications, and make one initial exclusion of prospective appointees from further consideration.”
The law goes on to say that a governing body “shall make available for inspection” applicants who are not excluded from consideration, and that all interviews of said candidates must be conducted at a public meeting.
But Mooresville’s school board conducted no interviews of potential candidates, public or otherwise, and Brimmage was appointed to the school board during its Nov. 25 meeting.
Saner said at that meeting that the board received five applications, all of which were discussed in executive session behind closed doors prior to the meeting. The candidates’ paper applications — less than two pages in length — were the sole consideration during the appointment process. The names of the applicants were never disclosed to the public before the vote was held, and the reason Brimmage was chosen over the others was not made clear at the meeting or after.
At the Nov. 25 meeting, in just under two minutes, the board nominated and appointed Brimmage to the school board.
Saner briefly thanked “the board for their efforts” in the appointment process, asking if they had any questions or comments, but he did not ask if anyone wanted to speak. Public comment was not on the meeting agenda at all nor sought during the meeting.
After hearing no comment from the board, Saner solicited a motion to nominate one of the five applicants to join the board.
Board secretary Jen Reed then immediately nominated Brimmage, a name the public was hearing for the very first time, and her motion was unanimously approved by the board.
Saner later told The Correspondent in a phone interview that he “knew of (Brimmage),” but the two had never met in “any substantive way.” He voted for Brimmage nonetheless.
When asked why the board did not interview Brimmage before appointing him, Saner pointed to board policy.
“Board policy says we may interview potential candidates,” Saner said. “We decided not to.”
A month after Brimmage was appointed, The Correspondent filed a civil complaint against the school district in the Morgan County Circuit Court, alleging that Mooresville had violated the Open Door Law by taking unauthorized official action on public business during an executive session.
The complaint alleged that the board discussed all candidates for the vacant position and eliminated all but one behind closed doors. Additionally, the lawsuit alleged that the school board failed to allow public comment at the meeting.
Lawyers representing Mooresville Schools responded to the lawsuit Feb. 24, denying all wrongdoing and asserting that the board had acted lawfully in appointing Brimmage.
Public Access Counselor opinion
Prior to the civil suit, The Correspondent filed a formal complaint last December with then Public Access Counselor Luke H. Britt. The PAC is a state-level appointed position that “provides advice and assistance concerning Indiana’s public access laws to members of the public and government officials and their employees.”
The PAC also offers formal advisory opinions in the case of disputes over Open Door Law and Access to Public Records Act.
On Feb. 25, Britt, in one of his final PAC opinions before leaving the office, addressed both of The Correspondent’s allegations against Mooresville Schools. He began his opinion by laying out the framework for the state’s Open Door Law.
“The entire point of the Open Door Law is that ‘the official action of public agencies be conducted and taken openly … in order that the people may be fully informed,’” Britt wrote. “Implicit in that goal is that the Open Door Law requires some discussion … before a decision is made.”
“Any final action concerning items of significance needs to be accompanied by robust discussion of the underlying subject matter,” Britt continued. “The appointment of a public official is one of those.”
Britt said the board should have “at the very least” given a summary of the chosen candidate’s qualifications and why he was chosen before a vote was taken. Instead, no public discussion took place, and the vote was made.
“There may not have been formal yays and nays in the executive session … it would be naïve for the public access counselor to come to any other conclusion than the subsequent vote was an inevitability,” Britt wrote.
Britt sided with The Correspondent’s charges related to the lack of public comment as well.
Per Indiana Code, school districts must “invite public comment before final action takes place,” Britt wrote.
The newspaper alleged that no invitation took place, while the school district pointed to a sign-up sheet that was on the premises for the meeting, which no one signed.
“The law is clear that a public comment forum must take place at a school board meeting. … And while it may be a performative exercise when no one signs up to speak, it should at least be name checked during the meeting itself, even if it ends up being lip service.
“But here, the rushed nature of the agenda item and the vote — less than two minutes according to The Correspondent — is indicative of the desire to open and close the topic with as little fuss as possible.”
Despite the school board’s sign-up sheet, Britt concluded that they did not meet the legal standards.
“In this case, I find fidelity to the statutory intent lacking,” he wrote.
In the conclusion of his formal opinion, Britt reiterates his stance.
“Based on the foregoing, it is the opinion of this office that the vote to appoint a new board member to be a foregone conclusion after an executive session based on the information provided.
“What is more, I encourage the board to be more mindful of the public comment considerations in future meetings.
“The board did not carry the burden of compliance with the Open Door Law in either of these matters.”
Settlement
Hoping to avoid a courtroom, The Correspondent and the school board ultimately reached a settlement, approved by the board at its May 13 meeting.
The agreement comes after months of negotiations between the two parties. While the agreement does not constitute “an admission of liability,” the board has agreed to a number of The Correspondent’s demands, particularly when it comes to public comment and future appointments.
The agreement reached between the two parties requires the board to amend the language of the district’s current policy regarding filling board vacancies, as well as the district’s policy relating to public participation at board meetings. Additionally, the school district agreed to pay a $6,250 lump sum to cover The Correspondent’s legal fees.
Brimmage will remain a member of the school board.
The agreement stipulates that the board shall follow Indiana Code, including Open Door Law, and within 30 days, the board will amend the language of its current policy regarding filling board vacancies as follows:
“The board shall interview finalists under consideration in a public meeting to ask any additional questions of the candidates in order to further determine each candidate’s interest and suitability for the board. The board shall also openly discuss the qualifications of all such candidates and verbally invite oral public comment on the same before taking final action to fill the vacancy.”
The agreement also stipulates that the board shall within 30 days amend the language of its current policy regarding public participation at board meetings as follows:
“To permit fair and orderly public expression, the board shall provide a period for public participation at every public meeting of the board and publish procedures to govern such participation in board meetings in accordance with the Indiana Open Door Law,” the policy reads. “‘Period of public participation’ shall, at a minimum, include: (a) a sign-up sheet for public comment to be posted at the entrance to the board room, (b) a verbal invitation for oral public comments at beginning of each public school board meeting, and (c) a verbal invitation for oral public comments immediately before the school board takes any final action on public business.”
Ever since The Correspondent filed its complaint last December, board president Matt Saner has asked for public comment at the beginning of every meeting and before each item on the agenda.
Final steps
In order to ensure the school board adheres to the agreement, a Joint Motion for an Order Directing Compliance with the Settlement Agreement was filed on behalf of The Correspondent. This motion legally requires both parties to obey the directives of the agreement.
The final filing — a Joint Stipulation of Dismissal — was submitted to the circuit court on Monday. Judge Matt Hanson signed the order of dismissal on Tuesday, formerly bringing the matter to a close.
