A Citizen's Guide to Indiana

Masson's Blog

SB 83: Mandatory Public Comment at School Board Meetings

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Sen. Leising (the quixotic cursive crusader) has introduced SB 83 which mandates the opportunity for public comment at school board meetings. This is a reaction to the measures taken by school boards to deal with pro-COVID parents who objected to the idea of having to work with the community to limit the spread of COVID. Some members of the public not only disagreed with mask policies, they turned abusive and belligerent. When the Public Access Counselor was asked about how public bodies could comply with the Open Door Law and still get business done when civility broke down, the PAC observed that public comment was not required by the Open Door Law and eliminating the public comment period was one tool that boards could use when necessary.

[N]othing in the Indiana Open Door Law guarantees or even mentions the right  to participate in the proceedings of a governing body much less interrupt…[G]overning bodies can choose whether to extend the courtesy of a  comment forum, and therefore revoke it if misused. Tumult, disorder, and disturbance on the part of the audience should not be tolerated by a board, council, or commission.  This office does, and will always, advocate for a meaningful public comment opportunity  at public meetings, if practical. Ultimately, however, a public comment forum during a  meeting is a privilege and a courtesy extended by a governing body to the public.

Sen. Leising’s bill does not have much to say about the public comment period she would require school boards to provide. Certainly, it does not give schools any tools to deal with interruption, tumult, disorder, or disturbances. This legislation could be read as a sanction for using such tactics as a means by which to influence public policy. By the same token, however, the legislation says nothing about rules the school board could use to regulate the public comment period. “You have ten seconds and comment must be germane to agenda items. Go!”  Any rules on public comment used to ensure order is maintained will no doubt be decried as tyranny. But, I suppose once everything is tyranny, then nothing is tyranny.

SB 12: Semiquincentennial Commission

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Sen. Kruse has introduced SB 12 which would establish a Semiquincentennial Commission to commemorate the 250th anniversary of the signing of the Declaration of Independence. I’d never heard the word “semiquincentennial” before, so at least this bill has taught me that. It designates required members of the commission: the governor, lieutenant governor, the adjutant general of the Indiana National Guard, director of the Indiana Dept. of Veteran’s Affairs, four legislators, and representatives from: Revolutionary War reenactment organization, Civil War reenactment organization, the VFW, the American Legion, executive director of Indiana War Memorials, Boy Scouts, Girl Scouts, Sons of the American Revolution, Daughters of the American Revolution, Fraternal Order of Eagles, and the Indiana Historical Society.

It’s at least mildly interesting to me that the statute requires the representative from the Sons of the American Revolution to be the chair and the representative from the Daughters of the American Revolution to be the vice-chair. I have a vague notion that some of these type organizations have problematic pedigrees — though, it’s entirely possible I’m thinking of the Daughters of the Confederacy and their Lost Cause, Klan-loving b.s.

SB 11: If the State displays the Declaration of Independence, it must include a plaque talking about religion

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Sen. Kruse has introduced SB 11 which is kind of a reverse of what you normally see with these religious display bills. Normally, the approach is to encourage government units to display religious items and mix them in with enough secular stuff that it might pass First Amendment, Establishment Clause challenges. This one says it’s o.k. for State agencies to display historical documents that aren’t primarily thought of as religious documents — specifically the Declaration of Independence, parts of the Northwest Ordinance, Washington’s Farewell Address, and the Mayflower Compact — but then requires that such displays be accompanied by a plaque talking about religion.

A display of [one of the listed documents] must be accompanied by a document entitled “Educational Documents for Acknowledging America’s Religious History” that reads as follows: “Many historical documents pivotal to American law, constitutionalism, and political theory have deep roots in religion. Examples include the Mayflower Compact, the Declaration of Independence, the Northwest Ordinance, and Washington’s Farewell Address, which collectively express5the American ideals of liberty, equality, personal responsibility, and the rule of law. The purpose of this display is to help the general public understand the role that religion has played in the legal history of the United States and Indiana.”

(Emphasis mine). Religion did have a huge impact on America’s development. Sometimes for the better. Sometimes for the worse. And, significantly, sometimes the impact had to do with the Founders understanding from relatively recent conflicts like the Thirty Years War how badly things could go when government and religion got too mixed up with one another. The decision to legislatively insist on a religious focus when the State displays the Declaration of Independence is misguided and probably unconstitutional.

SJR 3: Urging a Constitutional Convention to Fix United States Supreme Court at Nine Justices

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Sen. Buck has introduced Senate Joint Resolution 3 which would have the State of Indiana directing Congress to call a Constitutional Convention for the purpose of amending the United States Constitution to fix the number of Supreme Court Justices at 9. First of all, I’m on record as saying that a Constitutional Convention is a terrible can of worms to open:

For his part, Long envisions a convention which is narrow in scope. But revolutions often get away from their bourgeois instigators. Once a Constitutional Convention was opened up, I would anticipate radical factions taking over.

Second, there is nothing magic about nine Supreme Court Justices other than that, by blocking President Obama’s nomination of Merrick Garland and ramming through Ruth Bader Ginsburg’s successor, Sen. Buck’s political party has managed to capture a majority of the seats on the Supreme Court. Article III of the Constitution says nothing about the size of the court. The Framers initially set the number at six Justices. In 1801, the number was reduced to five but, before the Court could shrink, in 1802, it was restored to six. As the country grew, so did the Court. It was expanded to seven in 1807, nine in 1837, ten in 1863. In 1866, Congress enacted a plan to reduce the Court back to seven through attrition, but it only got down to eight in 1867 and then was returned to nine in 1869.

As a political matter, I think it would be an extremely heavy lift to get the number of Justices changed. If the People desire a Constitutional amendment to fix the number of Justices, I’d suggest that it go the route of every other Constitutional amendment to date: two-thirds of each house of Congress proposing an amendment and having it ratified by 3/4 of the States.

SB 34: Prohibition on Medical Services to Minors Related to Gender Identity

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Sen. Kruse has introduced SB 34 prohibiting medical services to minors related to gender identity. It contains some exceptions where “the minor has a medically verifiable genetic disorder of sex development, including having: (A) both ovarian and testicular tissue; or (B) external biological characteristics that are ambiguous3 resulting from having a 46,XX karyotype with virilization or 46,XY karyotype with undervirilization.” The other exception is for situations where “(2) The minor has an abnormal sex chromosome structure that has been diagnosed using genetic testing by a physician licensed under IC 25-22.5.” I don’t know what those technical terms mean. But, notably, there is no exception for situations where the minor, the minor’s parents, and the medical provider all agree that the medical services are in the best interest of the minor.

This bill would prohibit the following:

[A health care professional may not] attempt to change,14reinforce, or affirm a minor’s perception of the minor’s own sexual attraction or sexual behavior, or attempt to change, reinforce, or affirm a minor’s gender identity when the identity is inconsistent with the minor’s biological sex, by performing or causing to be performed any of the following procedures on the minor: (1) Castration. (2) Vasectomy. (3) Hysterectomy. (4) Oophorectomy. (5) Metoidioplasty. (6) Orchiectomy. (7) Penectomy. (8) Phalloplasty. (9) Urethroplasty. (10) Vaginoplasty. (11) Mastectomy. (12) Lobotomy. (13) A surgery to remove a healthy organ or body part.

The bill would also prohibit:

[A health care professional may not] attempt to change, reinforce, or affirm a minor’s perception of the minor’s own sexual attraction or sexual behavior, or attempt to change, reinforce, or affirm a minor’s gender identity when that identity is inconsistent with the minor’s biological sex, by engaging in any of the following activities: (1) Prescribing, administering, or furnishing to the minor a drug to stop or delay puberty. (2) Prescribing, administering, or furnishing to a female9minor testosterone or estrogen-suppressing drugs. (3) Prescribing, administering, or furnishing to a male minor estrogen or testosterone-suppressing drugs. (4) Subjecting a minor’s genitals to an electric current. (5) Penetrating the minor’s fingers with needles. (6) Restraining and placing ice on the minor’s hands. (7) Wrapping the minor’s hands in heat coils. (8) Subjecting the minor to an ice bath. (9) Injecting drugs into the minor to induce vomiting. (10) Restraining the minor with ties or harnesses. (11) Inflicting any physical pain or suffering.

Back in the old days, I would have joked about Sen. Kruse going to wilder parties than the ones I get invited to. But I don’t have the heart for it. Questions about gender identity and what to do about it when a person’s identity differs from their biological sex are difficult. I think they’re especially difficult because puberty can be a kind of ticking clock where the release of hormones is going to make the inconsistency more difficult for the person to navigate and also difficult because making the wrong decision — either by taking action or by not taking action — can have significant impacts for the rest of the person’s life. I do not think these questions are ones the General Assembly is well equipped to answer on behalf of these families.

SB 62: Tax Sale Properties to Non-Profits for Low and Moderate Income Housing

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Sen. Young has introduced SB 62 which permits properties listed for tax sale to be sold (prior to the tax sale) to non-profits for the purpose of developing low and moderate income housing. As I read the bill, I think he has Habitat for Humanity as well as community development corporations in mind. I haven’t bothered to do the additional research, but I think the provisions of the chapter this new section is in would require the non-profit to pay the amount of the delinquent taxes to acquire the property, but by selling it prior to the tax sale, it would avoid the likelihood of the price being driven up by bidding. Not more than 10% of the tax sale properties listed could be sold in this fashion.

I suppose the owners who are delinquent in paying their taxes that this artificially lowers the amount their property would receive at tax sale. (The owners are entitled to the tax sale surplus after delinquent taxes and some other fees are paid.) But, even if that’s a valid complaint, there would still be a redemption period during which the owner could get the property back from the tax sale purchaser — the owner has to pay the delinquent tax amount plus 10% or something which goes to the tax sale purchaser (in this case the non-profit.)

Someone’s ox is always getting gored with legislation, but on its face, this strikes me as a positive initiative.

SB 18 and SB 68: Dog Days of the General Assembly

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They’re good dogs, Brent.

All right, the title is lame, but you get what you pay for. Sen. Doriot has introduced SB 18 and Sen. Alting has introduced SB 68. Sen. Doriot’s bill prohibits local government from imposing bans or similar restrictions that are focused on a specific breed of dog.I’m generally supportive of this, I think. I’m not one to generally embrace state restrictions on local government, but I think the breed-specific prohibitions end up being a little arbitrary. This is typically directed at pitbulls who can be very sweet dogs. I don’t think the problem is with the breed so much as with the people who seek out the breed and treat them in a way calculated to make them mean and destructive. Ideally, you’d go after the people abusing the dogs.

Meanwhile, Sen. Alting’s bill would require animal shelters to make reasonable efforts to contact owners before destroying dogs or cats. It suggests time frames and measures that would be considered reasonable. The “shall” language is that “An animal care facility shall adopt written policies and procedures to ensure that the animal care facility makes a reasonable effort to quickly and reliably return a lost or stray companion animal to an owner.” Some of the “may” language in the bill focuses on checking for microchips, checking reports of lost animals it has received, making efforts to notify the owners within 48 hours, posting notices on the shelter’s website, having available hours on weekends and/or weeknights, and double checking before euthanizing the animal.

Sen. Alting’s bill reminds me of a tragic incident I’d been told about my Aunt and Uncle’s cat, “Chester.” At some point Chester got lost or — there may have been allegations of him being turned over to the shelter by a neighbor who didn’t like Chester in his yard. The way I heard the story, they found the correct shelter just as Chester had been given the euthanasia but before he was dead. (In retrospect, I wonder if I heard this correctly — I’ve had to put several dogs down over the years, and once the chemicals are injected, the death takes place incredibly quickly.) So, obviously a very tragic story. On the other hand, I work a bit with one of our local shelters. It’s a no-kill place, so euthanasia hasn’t been an issue. But, it’s clear that some animal owners are incredibly bad pet owners. And they don’t answer their phone, they promise to show up then don’t, and otherwise end up being indifferent and difficult to contact. None of this makes Sen. Alting’s bill bad, but hopefully shelters can implement reasonable efforts without being unduly burdened by irresponsible pet owners.

 

My Remarks to the West Lafayette Community School Board on the subject of new superintendent compensation

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My remarks to the West Lafayette Community School Board, December 13, 2021. The background is that IC 20-26-5-4.3 requires that, prior to entering into a contract with a superintendent, a school board must hold public hearing to take public comment on the proposed contract with the superintendent at least 7 days before entering into the contract. The statute permits the identity of the potential candidate to remain confidential during these negotiations. Because many potential candidates would prefer not to alienate their current employers by having their interest announced in public, this is the process followed by our school board (and, it’s my understanding, by most Indiana school boards.) I offered the following as public comment.

(This transcript is based on my notes and may not have come out as coherently!)   

First of all, thank you all for your work in the superintendent selection process. When the General Assembly adopted the law requiring these hearings a few years ago,  I got the sense that the intent was to put school boards in an uncomfortable position.  Public hearings put downward pressure on superintendent compensation which isn’t necessarily a bad thing.  But it’s also part of a theme where the General Assembly makes schools justify every dime spent on public education.

One problem you face is that it’s hard to know what a position like this is actually worth. For example, the Mayor of West Lafayette is a big job that affects us all and pays something like $105,000 plus benefits. I’m a county government guy, so I happen to know that some of our local county elected officials make quite a bit less. On the higher end of the scale, the State of Indiana has set compensation for our judges, prosecutor, and chief public defender at close to $160,000 plus benefits. The Exponent reported that the average salary for Purdue’s top 100 employees was close to $350,000/year. I read in recent news that Purdue’s President was paid something like $900,000 last year. So is the superintendent job more or less valuable to our community than a judge or a professor or mayor? Is it a harder or easier job? That’s tough to say.

We’re proposing to pay this individual a base salary of $160,000 and a total package in the range of $240,000 per year. Is that the right salary? Again, it’s difficult to say. I can Google salaries for various school districts or various kinds of jobs, but ultimately there is enough range in compensation and variety in circumstance that, beyond a certain point, it’s a judgment call as to what the relevant metrics should be.

Should we look at schools with similar numbers of students? Or maybe similar academic performance levels? Maybe districts with similar costs of living?

We can point to schools of a similar size that pay less and we can point to some that pay more. But size is just one variable among many.  Small populations can have big challenges. Ask any teacher how much work 2 or 3 challenging students can add to a classroom. Or, maybe the fact that we’re small means that there is less staff at Central Office and, therefore, the superintendent has to do more of the work.

For my part, my view is that our schools are the heart of our community. We’re asking this person to take a job that’s essentially 24/7. Ideally, the person will move into the community and put down roots. West Lafayette is not the cheapest place to live — in part because of the quality of our schools.

It’s a big job. This is not unlike running a $40 million company.  You have something like 150 teachers plus the administration and support staff required to run a school. Between full and part time, I think that gets close to 500 people all told. And, unlike your average company, every year they have to adapt to the pile of new rules the State throws at them.

We have the best school system in the state, and we want to make it better. The position comes with high expectations and a lot of pressure. That’s worth something in terms of compensation.  As long as the salary is in the ball park, it doesn’t make sense to be penny wise but pound foolish with this decision or to nickel and dime every line item.

Ultimately it’s up to you to make this decision. I’m mindful of the fact that I asked for your job, and I didn’t get it.  I haven’t spent months thinking about the question. I’m sure there are any number of variables I haven’t even considered. I haven’t consulted with Ross or Steve or any of the other people who know about the school’s finances or with folks who have expertise about superintendent compensation.

I’m sure we can find people in the newspaper comment sections who are extremely confident in their ability to make these decisions without putting in that kind of work. People who effortlessly know more medicine than doctors and more law than Constitutional scholars. Undoubtedly, they can run a school system without breaking a sweat. But, I’m not as smart as those people, so thank you to the members of the school board for doing this work.

HB 1001-2022: Employer-Vaxx and Pandemic Legislation

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Needle

Recommendation: Get vaccinated whether you’re required to or not. It will make you safer, reduces the likelihood that you’ll infect your friends and neighbors,  and makes you less likely to incubate mutations that will harm more people.

*Tap* *tap* is this thing on? I haven’t posted in awhile, so I can’t imagine many people will be reading this any time soon, but the General Assembly has released the text of HB 1001-2022 for the upcoming session. This was the subject of some hearings the week before Thanksgiving, and there were some rumblings about the General Assembly convening to vote it through at the beginning of the week before Thanksgiving. I’m awfully glad they didn’t do that. I’m not a huge fan of the substance of the bill but I was really unhappy with the idea of them jamming it through at the end of November. That’s basically unprecedented. (Particularly where, as here, the text of the bill had not been released.) The General Assembly is at least notionally a part-time legislature and, as such, they do business beginning of January each year. During odd years, it’s a “long” session and they can go into May. During even years, it’s a “short” session and they wrap up in March or April. (There are rules on how long they can go, so I might be a little off on the end dates — but I’m not of a mind to look anything up at the moment.) Point being that November and December are absolutely, *not* the time to pass anything remotely controversial.

Like I said, I don’t love the substance, but now that the text of the bill has been released, it’s not as horrible as I’d feared. The first couple of sections have to do with being able to access federal funds and administer COVID vaccines even if the Governor drops the COVID emergency declaration that’s been continued month-to-month since March 2020. Another section expands the knee-jerk “immunization passport” provisions the General Assembly passed last year — to make it clear that it is intended to apply to schools and colleges. The existing law prohibits specified governmental entities from issuing or requiring an immunization passport defined as  “written, electronic, or printed information regarding an individual’s [COVID-19] immunization status.” (The law clarifies that this does not prohibit creating or storing medical records of the immunization.) There was some debate over whether existing legislation covered schools and colleges. Under this legislation, that issue would be resolved.

The big controversial bit has to do with whether employers can require COVID immunization as a condition of employment. There was some confusion about the relationship between this legislation and the federal rule coming out of OSHA. They cover similar territory but they are distinct. The federal OSHA requirements are currently held up in court. If they go into effect, I’m pretty sure they’d supersede this state legislation. But, as written, this state legislation would permit employers to require immunization with some caveats. The employer’s policy would have to recognize medical and religious exemptions and, for a period of six months after recovery, individuals who have had and recovered from COVID. The employer could require these exempt employees to get tested not more than once a week but the testing would have to be at no charge to the employee. The medical exemption and the COVID recovery exemption would require the employee to go through a medical provider and supply the employer with documentation. The religious exemption requires the employee to provide a statement in writing declaring that he or she is declining due to a sincerely held religious belief.

As I see it, the two most problematic pieces of this legislation are making the employer bear the cost of testing (or at least ensure that the employee does not bear the cost of testing) and the risk that an individual will insincerely declare a religious objection. For example, if the person complains that the COVID vaccine was developed using a fetal cell line but the person uses products also made from fetal cell lines like acetaminophen, albuterol, aspirin, ibuprofen, Tylenol, Pepto Bismol, Tums,  Benadryl, and others — one might conclude that their objection to COVID vaccines has its roots somewhere other than religion. Skepticism about people’s sincerity might be offset somewhat by the weekly testing requirement. I have to guess that the insincere would throw in the towel after a few weeks of having to jump through testing hoops.

The Indiana Chamber of Commerce has objected to this legislation which might seem to be a challenge for the mostly Republican group who supports this bill. The Chamber and the state GOP have been fairly well aligned over the years. A fracture in that relationship probably wouldn’t be good news for either. I don’t see it happening, but maybe some kind of state funding for the weekly testing (to the extent it’s not already paid for by other sources) might bridge the divide between Chamber and GOP on this one.

My personal view is that discouraging vaccination is bad public policy that will prolong the pandemic, resulting in additional illness, death, and expense. But, understanding that the political establishment in Indiana has different views on the matter, this bill could be worse.

Friday Night Lights

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Friday Night in West Lafayette

My growing disinterest in politics as an on-line game is spilling over into the real world. Last night, Bernie Sanders came to town. He was speaking less than two miles away from where I live. On the other hand, my kids were playing in the marching band at the high school football game less than one mile away. I don’t have any particularly negative feelings about Sanders himself and, politically, he very accurately identifies some of our problems, and I’m on board with many of his solutions. That said, I’m still pretty raw about the comportment of a number of his followers. During the 2020 primaries, I was mostly supportive of Pete Buttigieg. Too many of Sanders supporters — not Sanders himself — would’ve had me believe that Mayor Pete was a racist corporate stooge who controlled the price of bread and wasn’t that smart, actually. I didn’t see much of this from other candidates’ supporters, so it wasn’t just a generic primary fight issue. It was a strategic, scorched-earth choice on someone’s part — probably more prevalent online than on the ground.

But, truth be told, my lack of interest in the Sanders event didn’t have much to do with the scars of the primary. I actively wanted to be at the football game. I like football, and I love the community. Schools are the heart beat of a community, and this is part of why that is. There’s just something I love about gathering in the stands with people I know, cheering the good guys and booing the bad guys (and eating slightly stale, over salted popcorn from the concession stand). These are people I mostly don’t know well, but who I know well enough. Many of us have been bumping into each other at school events for a decade now. When Twitter and Facebook got going a dozen or so years ago, one of the things they promoted was referred to as “ambient intimacy.” You don’t see that so much any more once the algorithms took hold and the chronological timelines were obliterated. But, it used to be, you’d get a lightweight look into the lives of friends and acquaintances. These people would never call you up to tell you that their six year old did a cool tumble at gymnastics, but you’d see it in passing online and, if you ever did bump into them, you’d know that they had an elementary school kid who was into gymnastics. You get some of that in real life with the crowd you see at the football games. (Yeah, I know, there are people laughing at my framing real life as a spin-off of online life here when the reality should be the opposite.)

Also, let me take a moment to gush about my kids & the marching band. My son is a senior in high school and my daughter is a junior. The band community has become central to their adolescence. When they’re not studying, their primary extracurricular activities revolve around the band. They march, they play at games, their band mates make up their social circle. It’s pretty common for a crew of 10-12 of them to gather in our back yard after football games. (The fun went on past midnight last night). The band parents are a pretty fantastic group — almost all nice people, friendly and dedicated to their kids; they tend to be joiners and volunteers, happy to pitch in for a cause. The whole thing – seeing them wail on their instruments, shouting support to the team, goofing around with their friends – it’s all a source of joy and community. These are the things that bring us together and help make a place good to live in. I’m just thankful to have the opportunity to participate.

Oh, and you’ll all be happy to know that West Side beat McCutcheon 30-7.