Indiana University trustees violated open door law with Michael McRobbie payment approval

Indiana University’s Board of Trustees violated the state’s open door law when it approved former IU President Michael McRobbie’s contract extension, according to a ruling from Indiana’s public access counselor.

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The ruling from Luke Britt found that IU had taken final action on public business during an executive session, which is forbidden by the open door law.

"To be sure, despite IU’s casualness regarding high-dollar contracts, a contract extension or consulting agreement worth over $500,000 to a single employee is undoubtedly an action item that would need authorization via final action and warrant discussion in an open meeting," Britt wrote.

While the public access counselor's decision is unlikely to lead to any punishment for IU, Britt indicated some impatience with the university.

"IU’s argument that the agreement was not an extension but rather a whole new 'consulting' contract only exacerbates the matter," Britt wrote.

IU's leaders believe the issue has been resolved.

"Out of an abundance of caution, we addressed the matters of concern in the public access counselor’s ruling during the December board of trustees meeting and we consider this matter closed," IU spokesperson Chuck Carney said.

The matter was indeed added to the agenda of the December meeting. While the measure to approve the McRobbie payments was unanimously approved in that public session, as reported by The Herald-Times, there was no public discussion of the decision to pay McRobbie or its merits.

According to trustees chair Quinn Buckner, important conversations happened behind the scenes with other trustees that made it clear it was the right decision to engage McRobbie as an insurance policy in case a new university president could not be hired in time.

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Rulings in three public access counselor cases filed in 2021 all went against IU. The year ended with the university parting ways with Jacqueline Simmons, an IU vice president and its general counsel.

While IU initially indicated that Simmons was simply retiring, it was later revealed by the Indiana Lawyer Simmons was in fact terminated without cause.

The state's public access counselor is a non-partisan officer. Britt was appointed by then-Gov. Mike Pence in 2013. According to the state's website, the office is "dedicated to preserving the access rights of the public and educating government officials on their responsibilities under Indiana’s access laws."

In separate opinions, Britt found IU failed to follow Indiana's Access to Public Records Act.

Britt determined the university took longer than was reasonable to respond to IU law professor Steve Sanders' request for documents related to the trustees approval of the McRobbie insurance policy.

Britt also decided the university violated public access laws when it denied Indiana Daily Student reporter Cate Charron's public records request for the disciplinary record of a student who was accused of committing a sexual assault.

Charron initially filed two requests in September, asking for the student's disciplinary record dating back to 2015 and a copy of an alleged victim's Title IX case file. IU improperly invoked the Family Educational Rights and Privacy Act when denying Charron's request.

Charron appealed last November. She knew she had a strong case, but it was unfamiliar territory. While she doesn't expect things to change at the university level, she hopes some good can come from the process that led to the public access counselor's decision in her favor.

"I want other student journalists and other journalists to know that we can go through this process, and there can be a result like this," she said. "I got a lot of help from other people and this was kind of a win for the whole newsroom."

According to Carney, the university is "considering the ruling."

In an interview with the H-T, Steve Sanders said there might be reason for some concern for IU. "This is at least a third case in the last four months that the university has lost in that office," he said.

Sanders thought the open door law ruling was a more extreme example of larger trends within the board of trustees.

"The Board of Trustees probably violates the open door law every time they meet," Sanders said. "They almost certainly discuss things routinely in executive session that they shouldn't be. If you go to the meetings, they have a kind of scripted feel to them, where you can tell things have been talked about and worked out. All the questions asked and answered in advance."

Simmons was replaced by Joseph Scodro on an interim basis. IU recently announced that Barnes & Thornburg partner Anthony "Tony" Prather would be IU's new general counsel and a vice president going forward.

Contact Patrick McGerr at pmcgerr@heraldt.com, 812-307-5636, or follow @patrickmcgerr on Twitter.