A Citizen's Guide to Indiana

Idea: Be nice until it’s time to not be nice.

Rep. Hatfield has introduced HB 1093 concerning protective orders for bullying. “Bullying” is defined as “overt, unwanted, repeated acts or gestures . . . that are committed by a person or group of persons against another person or group of persons with the intent to harass, ridicule, humiliate, intimidate, or harm the targeted person or persons.” It gives verbal, written, and electronic communications, physical acts, and aggression as examples of “acts or gestures.”

It permits a person who has been a victim of bullying to seek a protective order in the same manner currently available to a victim of domestic violence. The orders can, among other things, enjoin the bully from threatening or committing future acts of bullying; enjoin the bully from communicating directly or indirectly with the victim; and order the bully to reimburse the victim for expenses related to the bullying – including medical expenses, counseling, and repair or replacement of damaged property; and prohibit the bully from using or possessing a firearm.

The structure of the legislation is perhaps a little kludgy at times because bullying has been shoe-horned into statutes designed for domestic violence. So, in the case of a bullying protective order, the court has the authority to order that the victim “has the exclusive possession, care, custody, or control of any animal owned, possessed, kept, or cared for by the [victim], [bully], minor child of either the [victim or bully], or any other family or household member.”

I don’t work with them a lot, so I’d defer to those with more experience, but I’m skeptical of the general effectiveness of protective orders. I don’t oppose them by any means, but I think probably they often do too much or too little. The legal system is an unsubtle piece of machinery not well designed to respond to nuanced human interactions. It’s a cleaver where sometimes a scalpel is necessary.

Bullying itself is an interesting question. People will complain — with some justification — that it’s too hard to define. Any definition you care to come up with will be both over and under-inclusive. And some of that is meant in good faith. But there are people who, when you get down to it, believe that bullying is good or, at least, that protecting kids from bullying is bad. Curbing bullying behavior in boys is emasculating. The pecking order is a natural and ultimately beneficial aspect of human society. Dealing with bullies make you a stronger person.

I disagree. I think tolerating bullying behavior is maladaptive for modern society where more people are placed in closer proximity with one another and required to work together and rely on one another for society to thrive. I’m an adherent (as should we all be) of the Road House rule as given to us by the best cooler in the business, Dalton (who’s not as big as you might think): “be nice until it’s time to not be nice.” Bullying, pretty much by definition, is someone not being nice when it’s still time to be nice. We shouldn’t tolerate that. (Though, like I suggested, I’m on the fence about whether a protective order is the proper tool for this particular job.)

Keep 3 feet away. Or, if you prefer, 1 yard, 0.944 meters, 91.44 centimeters, or .0045 furlongs.

Sen. Sandlin has introduced SB 72 concerning bicycle safety. Specifically, it would require that,  “when a vehicle passes a bicycle that is proceeding in the same direction as the vehicle, the driver of the vehicle must maintain a safe distance of at least three (3) feet between the vehicle and the bicycle during the entire time that the vehicle is passing the bicycle.”

Makes sense to me. I might alter the bit about “during the entire time the vehicle is passing” to reflect that it’s also a bad idea for the motor vehicle to be closer than 3 feet when the motor vehicle is tailing the bike with no intent to pass. To the extent we haven’t been, we probably also need to keep non-motor vehicles when we design our travel infrastructure.

Because this is a short one, I’ll digress by sharing an article I read awhile back about how the invention of jaywalking was associated with a “massive shaming campaign” by the auto industry.

In his 2007 paper, “Street Rivals: Jaywalking and the Invention of the Motor Age Street,” Peter D. Norton describes how ridicule was recognized early on as the best socializing force to control pedestrian behavior—behavior that would have to change with the times.

. . .

As Norton explains, “before the city street could be physically reconstructed to accommodate motor vehicles, it had first to be socially reconstructed as a modern thoroughfare.” And that social reconstruction meant redefining who belonged on the street, by poking fun at those who were seen as unwanted. This ridicule would show up in newspaper editorials, in verbal confrontations between motorists and pedestrians on the street, in American classrooms, and through public shaming by police officers and other authority figures.

The term “jaywalking” apparently comes from the term “jay” being used to refer to a rural idiot or rube. If they were walking in the middle of the street instead of crossing at intersections in order to accommodate the new motor vehicles, that must mean they are hicks from the sticks who are too simple to know how to properly walk in the city.

Viewed through a long historical lens, this attempt to reclaim a place for non-motorized vehicles on our streets is something of a pendulum swinging back somewhat to the days before motor vehicles.

Sen. Niezgodski introduced SB 169 expanding the list of acceptable documents for proof of identification allowing a person to exercise their right to vote. In addition to a federal or state ID, this legislation would allow a photo ID issued by a state educational institution or an approved postsecondary institution as acceptable proof of identity for a citizen who wants to exercise his or her right to vote.

This will never go anywhere because it satisfies only the stated reason for the underlying Voter ID law. The stated reason for the Voter ID law is that it’s necessary to combat voter fraud. IDs issued by state educational institutions should be satisfactory to provide the necessary security. After all, the instances of people posing as someone else to cast an in-person ballot are rare at best.

But, it doesn’t address the unstated reasons for Voter ID laws. They tend to depress voter turnout among demographics more likely to vote for Democrats. This provision does not further that unstated policy goal and, therefore, I predict it will not pass.

Why, there oughtta be a law!

Sen. Delph has introduced SB 101 amending the Access to Public Records Act (APRA) with respect to public employee personnel records.  First a note on APRA. This is Indiana’s public records statute. It’s a pet peeve of mine that this is not “FOIA” which is the federal “Freedom of Information Act.” FOIA applies only to federal agencies and institutions.  If you make a FOIA request for local government information, the technical response would be that it’s not a federal agency, so no responsive documents will be forthcoming. Now, most public servants aren’t pedantic jerks, so they quietly assume your request is being made under APRA and either provide or deny the documents accordingly. But, I twitch a little bit every time I see something about a FOIA request for state or local documents. And, this is my blog, so I’ll be pedantic if I want to

Second, this seems to be another example of “ripped-from-the-headlines” legislation. In this case, I’d guess it has to do with what looks like a cat-and-mouse game between the media and Hamilton Southeastern suspension of a Fishers high school football coach. I’m not one to get too worked up about media bias, but I always take media reporting about records they aren’t getting with a grain of salt. You know how when one political party makes one assertion about a law and the other political party makes a contrary assertion? Often, the story will then be reported in a “he said, she said” manner in the name of objectivity. This tends not to happen when it comes to records they aren’t getting. You can always tell who they think the good guys and the bad guys are with respect to these stories.

In any case, the underlying issue is IC 5-14-3-4(b)(8)(C). The way APRA is set up, the starting presumption is that the public is entitled to inspect or copy any documents the government has. The government isn’t required to create documents it doesn’t have, but unless there is a mandatory or discretionary exemption, it has to provide what it does have. IC 5-14-3-4(a) lists categories of documents that government is forbidden to provide to the public (e.g. patient medical records). Subsection (b) lists categories of documents the government has the discretion to withhold (e.g. police investigatory files). Subsection (b)(8) pertains to employee personnel files which a governmental entity has the discretion to withhold from public access except for:

(A) the name, compensation, job title, business address, business telephone number, job description, education and training background, previous work experience, or dates of first and last employment of present or former officers or employees of the agency;

(B) information relating to the status of any formal charges against the employee; and

(C) the factual basis for a disciplinary action in which final action has been taken and that resulted in the employee being suspended, demoted, or discharged.

The distinction between types of information versus types of documents creates a problem here. The current statute’s exception describes types of information rather than types of documents. But, APRA says the government has to provide documents. It does not, particularly, have to provide information. In other words, if you don’t have a document stating “the factual basis for a disciplinary action,” there’s nothing to provide under APRA. APRA generally doesn’t require you to create new documents.

Under SB 101, a governmental entity would be required to either provide documentation containing the information described in (A)-(C) above or, in the alternative, create a document containing that information. In addition, it would be required to state the specific “statute, ordinance, rule, or policy” that was the basis for a suspension, demotion, or discharge. This is problematic inasmuch as it seems to create a requirement that a governmental employee violate a specific policy before he or she is demoted or discharged. What if they aren’t violating any policies but just don’t happen to be very good at their jobs? If you want government to be more efficient, it’s probably not a good idea to force a government to wait until the employee violates a policy before you’re allowed to part ways or demote the employee to a position that might be more suitable to their talents. And, even if this was good policy, the public records law is not a good place to impose that requirement.

The proposed requirement that a statement of factual basis for disciplinary action reference a specific policy presumably is in response to the complain that Hamilton Southeastern’s factual basis, that the coach was suspended “due to not implementing instructions for classroom management strategies” was too vague. The problem with legislating based on one specific problem is that unintended consequences are easier to miss. You’re so focused on the tree that you forget the forest. Still, it’s probably not a bad idea to clean up that subdivision so that it refers to particular documents rather than particular information. If the legislature wants government to create particular documents, it should say so. Maybe even create a form and specify civil immunity for providing the information required by the form.