Ritz Sues State Education Board Members For Violating Open Door Law: Why No Separation Of Powers Claim?

Ten members of the Indiana State Board of Education appealed in a letter last week to House Speaker Brian Bosma and Senate President Pro Tempore David Long to get their assistance in having the Legislative Services Agency, an agency of the legislative branch, to conduct the Department's A-F grade calculations for the state's schools because they believe the Department of Education under the direction of State Supt. Glenda Ritz was taking too long. Ritz says the agency is still awaiting data from the scorer of the state's ISTEP tests before it can make the calculations. Recall that the integrity of the entire grading process has been called into question after the former superintendent, Tony Bennett, changed the grading system after learning that a charter school founded by his largest campaign contributor was about to receive a "C" instead of the "A" he believed it should be receiving. This is a matter that has been of little concern to state board members who worshiped at Bennett's altar.

The board members seem to rely on the fact that they did not formally meet to take their "official action" that is clearly represented by the request they made in their letter to the legislative leaders on board letterhead to reassign the grade-calculating duty to the Legislative Services Agency. Instead of conducting a formal meeting, they communicated by e-mail and phone and made the decision to formalize the request of the legislative leaders by letter signed by the board members. If a public board can simply discuss matters amongst themselves and take actions in private without providing notice to the public of a meeting held open to the public as prescribed by the Open Door Law in order to take official actions, then the Open Door Law is rendered meaningless. Even executive sessions of a board are required to be publicly-noticed under the law.

Interestingly, the recently-appointed "Democratic" member to the state board, Gordon Hendry, signed the letter, which should disabuse Democrats of any idea that he is anything but a Republicrat doing the bidding for the political insiders in this state using the mantra of education reform to engage in self-enrichment. His signature clearly appears on the letter despite the protestations of his wife, Jennifer Wagner, on her Twitter account that "we were on fall break in Florida the exact same dates she was on her China trip." "It's unclear to me how an alleged SBOE meeting happened while we were on the beach in Florida," she adds. Remember, this is the guy whose real estate brokerage firm stands to make a million bucks off a costly plan concocted by the administration of Mayor Greg Ballard, who can't approve new charter schools at a fast enough pace that are backed by political insiders, for the redevelopment of a prime block of real estate on Mass Ave, which has unnecessarily resulted in the cost of relocating the fire department headquarters and construction of a costly new fire station at a time the city is supposedly struggling to fund public safety. Not surprised the spokeswoman for the Democratic Party would be attacking her party's only statewide elected official.

In response to the board members' letter, the legislative leaders directed LSA to conduct the grade calculations the Department is statutorily required to perform as soon as possible. Today, Ritz filed a lawsuit against the ten members who acted outside a publicly-noticed meeting of the board, for violating the state's Open Door Law. She cites the fact that the letter was drafted, signed and mailed in secret to the legislative leaders by the members of the board she statutorily chairs. If their action didn't constitute a violation of the state's Open Door Law, I don't know what would constitute a violation of it.

I have another concern that isn't raised by Ritz' lawsuit. The Department of Education is an administrative agency within the executive department of state government. The Indiana Constitution expressly provides for the division of power in state government across the three departments: executive, legislative and judicial. It specifically provides that "no person, charged with official duties under one of these departments, shall exercise any of the functions of another, except as in this Constitution expressly provided." In addition, the State Superintendent of Education is a constitutionally-recognized state official within the executive department whose duties are to be prescribed by statute. The legislature has vested the Dept. of Education under her control with the task of performing the A-F grade calculations. The legislative leaders are violating the separation of powers doctrine and the state law they passed by attempting to delegate that responsibility to a legislative agency under their control. Who would guess that both legislative leaders are attorneys?

Not surprisingly, Gov. Mike Pence, who also supposedly has a law license, expressed his support for what are demonstrably illegal actions of the state board members and the legislative leaders. "Governor Pence strongly supports the actions taken by the bipartisan membership of the State Board of Education to ensure the timely completion of last year's A-F school accountability grades," a statement released by his spokesman read. "The Governor is confident that all relevant Indiana laws were followed."

UPDATE: The Northwest Indiana Times has posted a copy of Ritz' lawsuit here.