Trustees officially deny skirting open door laws

Lawyers for the IU Board of Trustees filed their response to a request for admissions submitted by a group of 46 plaintiffs. The plaintiffs accused the board of violating Indiana's Open Door Laws by meeting in two groups of four the day before IU President Myles Brand fired former men's basketball coach Bob Knight. \nIn a brief dated Jan. 16, the trustees claim many of the plaintiffs' 99 requests are irrelevant, including ones for Brand's private conversations with Knight, information regarding an executive session meeting May 14 and communications between Brand and various trustees. \n"The trustees have responded to many of the requests -- in which the plaintiffs want the trustees to admit certain facts -- but did not when the information sought is both irrelevant to the motions, sensitive, confidential or subject to attorney-client privileges," states the defendants' brief in support of their motion for protective order.\nBut some of the admissions in the brief contradict statements made by trustees or Brand during interviews with the IDS in September 2000.\nThe lawsuit claims Brand and the board of trustees deliberately skirted open door laws Sept. 9. It asks the court to void Brand's decision and to enjoin the trustees from future violations, along with attorney fees, other costs and proper relief.\n"We're pleased with the admissions, but we would have liked more," plaintiffs' lawyer Gojko Kasich said. "They've admitted they met and had informal meetings, now it's a question of what else happened during those meetings."\nEllen Boshkoff, the trustees' lawyer, said she cannot comment on pending litigation.\nThe trustees admit Brand instructed them to appear at his house Sept. 9 to discuss Knight's employment. They also admit Brand was to have a meeting with four trustees at 10 a.m. and four other trustees after that time.\nBut they deny "Brand met purposely with eight of the trustees in order to purposely avoid a quorum and consequently evade the requirements of an open meeting law as required by Indiana Code 5-14-1.5-1," the brief states.\nThis contradicts statements trustee Cora Breckenridge made Sept. 15 to the IDS. \n"The President told us he purposely didn't want a quorum of trustees," Breckenridge said. "He was having a meeting with four trustees at 10 o'clock and a meeting with four trustees after that. The ninth (trustee John Walda) was out of the country."\nThat isn't the only contradiction of previous statements in the brief.\nThe plaintiffs' request asks the trustees to admit the following: "On Sept. 9, 2000, Myles Brand met with at least eight members of the board of trustees of IU with the intent of obtaining the perception of the trustees regarding the termination of the contract of Robert Montgomery Knight, the IU men's basketball coach." \nThe trustees admit in the brief, "… on Sept. 9, Brand had informal discussions with two groups of trustees regarding a personnel matter. Otherwise defendants deny this."\nThe denial contrasts statements Brand made to the IDS Sept. 15.\n"I wanted to brief the trustees, but most importantly I wanted to get their perception," Brand said. "I asked each of the trustees, 'What is your opinion?'"\nBrand also sent an e-mail to various individuals Sept. 26 in which he wrote, "I took this opportunity to meet with the trustees in small groups, explain my thinking and receive feedback."\nKasich said he is amused with many of the trustees' responses.\n"Nothing surprises me about this case anymore," Kasich said. "These people are hanging themselves on their own words."\nThe trustees said in the brief that on Sept. 9 they were not aware that if five or more of them met at the same place at the same time to discuss the termination of Knight, they would be in violation of Indiana's Open Door Law.\nBut six of the trustees are lawyers -- president John Walda, vice president Frederick Eichhorn, Stephen Backer, Stephen Ferguson, Peter Obremskey and Ray Richardson. \nBacker was adamant during an IDS interview Sept. 15 that the board did not violate state laws.\n"No way. Absolutely no way," Backer said. "As my understanding of the Sunshine Law, there's no way."\nIn addition to other admissions, the trustees said minutes were not recorded during a May 14 executive session meeting. \n"That walks into part of our suit that says the May 14 meeting violated the Open Door Law," Kasich said. "Even when you have an executive session you're supposed to keep minutes, and they didn't do that."\nBut Sandy Barger, staff attorney for Indiana's public access counselor, said minutes of an executive session do not have to be recorded. A memorandum must be posted outside the meeting before it happens, she said, and it must list what is to be discussed, but it can be general.\n"The memo can simply be a list, for example, litigation or disciplinary action," said Robin Roy Gress, secretary for the board of trustees. "There are no minutes taken at any executive session."\nThe memo for the May 14 meeting states they discussed litigation, job performance of employees and they "received information concerning individual's alleged misconduct and status as employee or student."\nKasich also submitted a request to depose Brand, University counsel Dorothy Frapwell and each of the trustees. The trustees believe such depositions "could be used improperly, possibly to question witnesses about matters that are confidential under state law," according to the brief.\nA hearing on the trustees' brief and responsive briefs is set for March 2. A hearing on the motion for summary judgement is set for June 15, which could end the lawsuit if Judge Cecile Blau rules in favor of either side.