dissenting.
I respectfully dissent with regard to to the majority's application of the Open Door Law. Applying the majority's construction of the term "governing body," as defined by the Open Door Law, it is clear that the action taken by Reynolds and Pierce would be subject to the Law's provisions:
(b) "Governing body" means two (2) or more individuals who are [members of ]:
(1) a public ageney that:
(A) is a board, commission, authority, . or other entity; and
(B) takes official action on public business; [and]
(2) the board, commission, council or other body of public agency which takes official action upon public business; or
(3) any committee appointed directly by the governing body or its presiding officer to which authority to take official action upon public business has been delegated.... (emphasis supplied).
Majority, Op., 998.
Reynolds and Pierce are two (2) or more individuals who are members of a public agency that is an authority. They took official action on public business. They can also be considered "any committee appointed directly by the governing body or its presiding officer to which authority to take official action upon public business has been delegated...."
The majority opinion allows Reynolds and Pierce to escape the Open Door Law because "neither were members of the 11-member Indiana State Board of Health, nor members of any advisory committee directly appointed by that board." Id. at 998. I fail to see why two individuals acting together and endowed with such binding State power as to deny federal funding to health care organizations are not considered to be a committee appointed directly by the governing body. The majority tautologically argues that "Nor, as to See. 2(b)(2), do we know of any boards, commissions, etc., consisting of only two people. Thus, See.'s 2(b)(1) and (2) are useless when literally applied." Id. at 998. However, the majority admits the 1987 amendment to the Open Door Law was "intended to include not only public boards, committees, etc., within the Act's coverage, but also advisory committees directly appointed by them." Id. at 992. Reynolds and Pierce can be considered a "committee" for purposes of the Open Door Law:
Committee. An individual or body to whom others have delegated or committed a particular duty, or who have taken on themselves to perform it in the expectation of their being confirmed by the body to represent or act for.
Black's Law Dictionary at 248 (1979).
Nor should we ignore the policy which permeates the Open Door Law: "The Open Door Law stands as a strong policy decision by the legislature that business conducted by committees of a public body should be conducted in plain sight." Riggin v. Board of Trustees of Ball State University (1986), Ind., 499 N.E.2d 243, 244 (Shepard, J., dissenting). The 1987 amendment of the Open Door Law does not diminish the reasoning by our First District in Riggin v. Board of Trustees of Ball State University (1986), Ind.App., 489 N.E.2d 616, that a governing body cannot do indirectly what it could not do directly. It cannot avoid the Open Door Law's provisions by appointing a committee which appointed a committee which appointed the committee (or persons) in question. Id.
Moreover, all doubts under open door requirements must be resolved in favor of requiring public meeting, and all exceptions to the rule requiring open door meetings must be narrowly construed. Evansville Courier v. Willner (1990), Ind.App., 553 N.E.2d 1386, affirmed in part, 563 N.E.2d 1269.
I would affirm the right of a reporter for the Journal-Gazette to have been present at the informal reconsideration meeting.