Tag Archives: legal

Lindke v. Freed and O’Connor-Ratcliff v Garnier: Balancing free speech and social media moderation

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In the digital age, social media platforms have become virtual town squares where citizens engage in robust discussions, express their opinions and interact with public officials. The cases of Lindke v. Freed and O’Connor-Ratcliff v. Garnier delve into the delicate balance between free speech rights and the authority of public officials to moderate their social media pages.

In Lindke v. Freed, James Freed, the city manager of Port Huron, Michigan, maintained an active Facebook presence. His page served as a platform for both personal posts and official communications related to his role as city manager. Like many public figures, Freed received comments from constituents, including Kevin Lindke. Lindke expressed his dissatisfaction with the city’s handling of the COVID-19 pandemic on Freed’s Facebook page. Initially, Freed deleted Lindke’s comments, and later, he blocked Lindke from commenting altogether. Lindke argued that Freed’s actions violated his First Amendment rights, asserting that the page was a public forum.

In O’Connor-Ratcliff v. Garnier, two individuals, O’Connor-Ratcliff and T.J. Zane, created public Facebook pages to promote their campaigns for election to the Poway Unified School District Board of Trustees. Both also had personal Facebook pages they shared with friends and family. After winning the election, O’Connor-Ratcliff and Zane continued to use their public pages to discuss school related business. They also used their pages to solicit feedback and communicate with constituents. Christopher and Kimberly Garnier had children attending the Poway Unified School district. The Garniers often criticized the school board members and posted repetitive negative comments on the school board members’ social media posts. Initially, the negative comments were just deleted but then the Garniers’ were blocked from commenting altogether. The Garniers sued, saying their First Amendment rights were violated when they were blocked.

The central question before the Supreme Court in both cases was whether blocking the commentators constituted state action under 42 U.S.C. §1983. This statute allows individuals to seek redress when their federal constitutional or statutory rights are violated by someone acting “under color of any statute, ordinance, regulation, custom, or usage, of any State.” The Court clarified that §1983 applies only to state actors. Private individuals’ actions do not fall within its scope. Thus, the critical issue was whether Freed, Zane, and O’Connor-Ratcliff’s management of their Facebook pages constituted state action.

The Supreme Court established a two-pronged test:

Actual Authority: the individual must possess actual authority to speak on behalf of the state regarding a specific matter.

Exercise of Authority: the individual must have purportedly exercised that authority in relevant social media posts.

The Court held that because his Facebook page was used for personal and business-related posts, Freed’s actions did not indisputably amount to state action under §1983. The Court remanded the case back to the Sixth Circuit so that the Sixth Circuit could analyze the posts Lindke commented on using the new two-prong test to determine if Freed was exercising his authority to speak on behalf of the city. If so, the blocking would be problematic.

In O’Connor-Ratcliff v Garnier, the Court remanded the case back down to the Ninth Circuit to analyze the case under the new two-pronged test established by the Court. It is likely the Ninth Circuit will find as they did initially, that O’Connor-Ratcliff and Zane possessed actual authority to speak on school board matters and that they were doing so when using their public Facebook page to share school news and discuss school issues.

These decisions underscore the distinction between public and private actions on social media. Public officials must tread carefully when moderating their pages, balancing their personal rights with their official responsibilities. Citizens, too, should recognize that not every online interaction with a public figure constitutes state action. In the clash between free expression and social media moderation, it is important to remember that, while outright blocking could be problematic, public officials still have the right to moderate comments that violate their social media policies or that are not protected speech in the first place, such as obscene language, threats, fighting words, defamatory language, fraud, child porn and language that incites violence or implicates criminal conduct.

This blog post was written by Sylvia Watson, library law consultant and legal counsel, Indiana State Library. For more information, email Sylvia.

Service animals in public accommodations

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The Indiana General Assembly wrapped up its 2023 session several weeks ago. Many new laws were passed including HEA 1354. HEA 1354 modifies a few things in Indiana law regarding service animals and also codifies some of the longstanding principles regarding service animals in public establishments. HEA 1354 is effective as of July 1, 2023.

HEA 1354 narrows the definition of service animal to just dogs and miniature horses. Previously, Indiana law was pretty open and recognized any animal that was trained as a hearing animal, guide animal, assistance animal, seizure alert animal, mobility animal, psychiatric service animal or autism service animal. HEA 1354 requires public accommodations to make reasonable modifications in policies, practices or procedures to permit the use of a service animal by an individual with a disability.

In determining whether reasonable modifications in policies, practices or procedures can be made to allow a miniature horse into a specific facility, a public accommodation must consider the type, size and weight of the miniature horse and whether the facility can accommodate these features; whether the handler has sufficient control of the miniature horse; whether the miniature horse is housebroken; and whether the miniature horse’s presence in a specific facility compromises legitimate safety requirements that are necessary for safe operation.

A public accommodation may charge the handler for damage caused by the service animal if a public accommodation normally charges an individual for damage the individual causes. A public accommodation may ask an individual with a disability to remove a service animal from the premises if the animal is out of control and the animal’s handler does not take effective action to control it or if the animal is not housebroken. If a public accommodation excludes a service animal for reasons permitted by law, the public accommodation must give the person with a disability the opportunity to obtain services without having the service animal on the premises.

It was already the case that service animals in training are entitled to access public accommodations, but HEA 1354 adds that the service animal in training must be under the control of its trainer at all times while on the premises of the public accommodation. A service animal must be under the control of its handler at all times as well, while on the premises of a public accommodation. A service animal must have a harness, leash or other tether, unless the handler is unable because of a disability to use a harness, leash, or other tether; or use of a harness, leash or other tether would interfere with the service animal’s safe, effective performance of work or tasks in which case the service animal must be under the handler’s control by other effective means, such as the use of voice control or signals.

HEA 1354 declares that a public accommodation is not responsible for the care or supervision of a service animal. Further, a public accommodation cannot ask about the nature or extent of an individual’s disability but may make two inquiries to determine whether an animal qualifies as a service animal. The public accommodation may ask whether the animal is required because of a disability and what work or task the animal has been trained to perform.

A public accommodation cannot require documentation, such as proof that the animal has been certified, trained or licensed as a service animal. A public accommodation also may not make inquiries about a service animal’s qualifications when it is readily apparent that the animal is trained to do work or perform tasks for an individual with a disability.

An individual with a disability is permitted to be accompanied by a service animal in all areas of a place of public accommodation where members of the public, program participants, clients, customers, patrons or invitees are allowed to go.

A public accommodation cannot ask or require an individual with a disability accompanied by a service animal to pay a fee for access to the public accommodation or comply with other requirements not applicable to a person without a service animal.

An individual with a disability is defined as an individual:

(1) who has a physical or mental impairment that substantially limits one or more major life activities:

(2) who has a record of a physical or mental impairment that substantially limits one or more major life activities; or

(3) who is regarded as having a physical or mental impairment that substantially limits one or more major life activities.

A public accommodation is defined as an establishment that caters or offers services, facilities or goods to the general public.

This blog post was written by Sylvia Watson, library law consultant and legal counsel, Indiana State Library. For more information, email Sylvia.

Merry Christmas from your public library… but wait, can they say that?

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This is the time of year for all sorts of celebrations. The most widely-recognized holidays in America during this time of year include Hanukkah, Kwanzaa and Christmas.

Hanukkah is a Jewish festival that celebrates the rededication of the Second Temple of Jerusalem after a successful 165 B.C. revolt against a king who had outlawed the Jewish religion and its practices, and who decreed only Greek gods could be worshiped in the Temple. Hanukkah is celebrated with certain foods, games, gifts and the lighting of a candle for each day of the eight-day celebration. The symbol most widely associated with Hanukkah is the hanukkiah, a candle holder that holds nine candles, one for each of the eight-day celebration and a “helper-candle” which is used to light the others. It is more commonly referenced as a menorah.

Kwanzaa is a seven-day festival that celebrates African and African American culture. Each day of the celebration is dedicated to one of seven principles: unity, self-determination, collective responsibility, cooperative economics, purpose, creativity and faith. It is not intended to be a political or religious holiday. Kwanzaa is celebrated by festivities that include decorating, singing, dancing, gifts and a large feast on the last day. The symbol most widely recognized in relation to Kwanzaa is the kinara, a candle holder that holds seven candles, one to be lit on each day of the celebration.

Christmas is traditionally a Christian festival that celebrates the birth of Jesus, a person most Christians believe is the son of God. However, in more recent years, Christmas has become a more secular holiday celebrated by both Christians and non-Christians with festive decorations, singing, parties and the exchange of gifts. Symbols most commonly associated with Christmas are the Christmas tree, Santa Claus and nativity scenes depicting baby Jesus.

Undoubtedly, the holiday most obviously on display right now is Christmas. You can hardly leave your house without evidence of the upcoming Christmas holiday on display all around you. Many homes and businesses are decorated with pretty lights, wreaths, garlands and Christmas trees. Many cashiers and salespeople are wishing us Merry Christmas as we conclude our business with them. With Christmas being so popular, what could possibly be the issue with our local public library joining in the festivities?

The dilemma lies in the fact that Christmas is still considered by many in our country to be a religious Christian holiday. The establishment clause – found in the first amendment of the U.S. Constitution – prohibits government from making any law establishing a religion. It is widely established through numerous court cases that the establishment clause further prohibits government actions that promote, endorse or favor one religion over another. Thus, many have argued that taxpayer-funded government entities should not celebrate or decorate for Christmas because it promotes Christianity. Several U.S. Supreme Court cases have discussed the issue of Christmas displays on government property and the result appears to be that government can recognize and even decorate for Christmas, as long as it is done primarily from a secular perspective and not in a manner that promotes or endorses religion.

In the 1971 U.S. Supreme Court case of Lemon v. Kurtzman (403 U.S. 602), the Court established a three-part test to analyze if government behavior violates the establishment clause. In using the “Lemon” test to analyze a holiday display, the Court would look at (1) whether the primary purpose of the display is secular in nature, (2) if the display either promotes or inhibits religion and (3) if there is excessive entanglement between church and state. Accordingly, the analysis into whether a particular government holiday display constitutes an impermissible violation of the establishment clause is a fact-based analysis that could result in different outcomes depending on the nature and contents of the display.

The two most commonly-recognized U.S. Supreme Court cases on this topic are the 1984 case of Lynch v. Donnelly (465 U.S. 668) and the 1989 case of County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter (492 U.S. 573).

In Lynch, the city of Pawtucket, Rhode Island was sued due to the city’s inclusion of a nativity scene in its annual Christmas display at a local park. In addition to the nativity scene, the city’s display included a Santa Claus house, a Christmas tree, reindeer pulling Santa’s sleigh, candy striped poles, carolers, cut out animal figures, hundreds of colored lights and a banner that read, “Seasons Greetings”. The city was sued just for inclusion of the nativity scene. The city lost both at the U.S. District Court level and upon appeal and was prohibited from using the nativity scene in its Christmas display. However, the U.S. Supreme Court overturned those rulings and held the city’s display did not violate the establishment clause. The Supreme Court held, in part, that when a nativity scene is included as one component of a Christmas display for the purpose of celebrating the holiday and depicting the origins of the holiday, those were legitimate secular purposes. The Court further held it did not believe the display was a purposeful advocacy of a particular religious message which would violate the establishment clause and any benefit to any particular religion was “indirect, remote and incidental”. The Court additionally held that there was no excessive entanglement between religion and state resulting from the city’s ownership of the nativity scene and inclusion of the scene in its annual Christmas display. There was no evidence the city had been in contact with any church about the content or design of the exhibit prior to or after the city’s purchase of the nativity scene. No expenditures for maintenance of the nativity scene was necessary and any tangible material the city contributed was minimal. The Court explained in great detail how church and state cannot and have never been completely separate from each other. As one example, the Court brought attention to the fact that there are government funded art exhibits that include famous religious scenes such as “The Last Supper” and “The Birth of Christ.” Generally, the Court will invalidate government action where that action was motivated wholly by religious considerations and where no secular purpose is evident. (Stone v. Graham 449 U.S. 39 (1980)). The Lynch decision was a split decision, however, with five of the justices believing Pawtucket’s use of the nativity scene was constitutional and four believing it was not.

In the Allegheny case, the city of Pittsburgh and Allegheny County – both in Pennsylvania – were sued due to two recurring holiday displays on public property that depicted religious symbols. The first display was a creche – model or tableau representing the scene of Jesus’ birth – inside the main, most beautiful, public part of the county courthouse. The creche was displayed on the grand staircase of the courthouse and was surrounded by traditional Christmas greens. The creche was donated by the Holy Name Society, a Roman Catholic group, and included a sign stating such. Included in the creche itself was a picture of an angel and the words, “Gloria in Excelsis Deo!” which means “Glory to God in the highest!” The U.S. Supreme Court found this to be an unconstitutional display mostly because the creche itself was the focal point of the display and there was nothing to detract from the patently religious (Christian) meaning and message. This is a stark contrast to the Lynch display which included primarily secular symbols.

The second Allegheny holiday display was outside the city-county building and was an 18-foot-tall menorah standing alongside a 45-foot-tall Christmas tree. The mayor’s name was on a sign at the base of the Christmas tree along with the words:

“Salute to Liberty. During this holiday season, the city of Pittsburgh salutes liberty. Let these festive lights remind us that we are the keepers of the flame of liberty and our legacy of freedom.”

The menorah is owned by a religious group but is stored, erected and removed each year by the city. The Court held in this instance that in the context of the display as a whole, the Christmas tree was the primary focal point, not the menorah, and Christmas trees are largely considered secular Christmas symbols. The Court further felt that the sign saluting liberty further detracted from any possible religious meaning behind the display. The Court determined that the display was a culturally diverse permissible recognition that Christmas and Hanukah are both part of the same winter holiday season. Allegheny was also a split Court decision on both issues.

Note that the above doesn’t address the situation where a private individual or group wants to erect a religious display on government property, but rather if the government itself is the sponsor of such a display. Generally, if a public entity allows a private individual or group to erect a temporary display of some kind on public property, a public forum is opened and restrictions on other individuals or groups who want to erect displays in that space must typically be limited to time, place and manner and, for the most part, should not be content based. To the extent restrictions are based on the content of the display, such restrictions must be necessary and narrowly tailored to serve a compelling state interest.

Disclaimer: This blog article should be considered general information and should not be construed as legal advice. The article is a high-level overview of some of the considerations a court will look at when analyzing the constitutionality of religious symbols in a government display. The reader should not act on the information contained herein but rather should act on the advice of his/her own legal counsel.

Resources consulted for this article include:

https://www.britannica.com/topic/Kwanzaa
https://www.britannica.com/topic/Hanukkah
https://www.britannica.com/topic/Christmas
https://www.britannica.com/biography/Jesus
https://www.cnn.com/2019/12/22/us/hanukkah-questions-answered-trnd/index.html
https://www.uscourts.gov/educational-resources/educational-activities/first-amendment-and-religion
Lynch v. Donnelly 465 U.S. 668 (1984)
County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter 492 U.S. 573 (1989)

Image courtesy of Pixabay.

This blog post was written by Sylvia Watson, library law consultant and legal counsel, Indiana State Library. For more information, email Sylvia.

New state law changes provisions related to employing minors

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There are a number of benefits to having teenagers in the workforce, a couple of which are that it tends be cheaper for the employer than hiring adults, and it gives the teenagers some work experience and connections that could be valuable later in life. However, it is important to balance the needs of employers with the needs of the teenagers, who may still be in school. There are both federal and state laws in place that provide some basic guidelines for employers when it comes to teen employees.

Image Credit: Child Labor Laws by Nick Youngson CC BY-SA 3.0 Alpha Stock Images

Image Credit: Child Labor Laws by Nick Youngson CC BY-SA 3.0 Alpha Stock Images.

The federal Fair Labor Standards Act sets wage minimums, work hours and safety requirements for workers under the age of 18 who are working in jobs that are covered by the law. For information on the Fair Labor Standards Act as it applies to minors, click here.

IC 20-33-3 is the chapter of Indiana state law that traditionally covered employer limits on employing students. However, the part of the law where you will find these limitations has moved from Title 20 (Education) to Title 22 (Labor and Safety).

In the 2020 legislative session, the Indiana General Assembly made a number of changes to Indiana’s laws related to employing students, only one of which was moving the teen labor laws to a different part of the code. A few of the additional changes are as follows:

The Bureau of Child Labor is now called the Bureau of Youth Employment. Work permits are no longer required for students who are not Indiana residents, or for home schooled students, or students enrolled in a career and technical education program. However, working hour restrictions still apply. Break requirements have been eliminated. Working hour restrictions for 16 and 17-year-old students are the same now. Work permit termination notices are no longer required to be sent to the school upon worker termination. Minors less than 16 years old may not work during school hours. Employers who employ at least five minors age 14 to 17 must register with the Indiana Department of Labor and a minor may not work in an establishment that is open to the public after 10 p.m. or before 6 a.m., unless another employee who is at least 18 years of age also works with the minor.

The Indiana Department of Labor has a summary  document available that describes some of the additional changes. To read about all the changes, review SEA 409 in its entirety.

This blog post was written by Sylvia Watson, library law consultant and legal counsel, Indiana State Library. For more information, email Sylvia.

Considerations for reopening if the library board or staff still have concerns

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Once the current COVID-19 public health emergency is over and the executive orders limiting movement have expired, some library board members or staff could still have concerns. It is imperative that if additional restrictions remain in place, the library enforce those restrictions universally. Some of the things a library could continue to do to encourage social distancing for the public without risk of legal recourse are as follows:

1. Rearrange or remove some of the seating to limit how many people are congregating in the seating areas and to keep the tables spread a good distance apart from each other. This might draw some criticism from taxpayers but would not be discriminatory if seating was first come first serve.

2. Meeting room reservations by the general public could technically continue to be temporarily or even permanently discontinued. Neither the law nor public library standards require libraries to provide meeting rooms. Again, this is a move that might draw criticism but wouldn’t be discriminatory if no one has access except the library staff or board.

3. Libraries could continue to request patrons stand six feet apart at the check out and reference desks by marking the floors with tape – or something else – and posting signs, similar to what retail stores are doing. Requiring everyone to do that is not discriminatory. Family members and small groups that come in together should not be required to be separated from each other.

4. Libraries can use plastic sneeze shields at the check out and reference desks to protect staff from patrons similar to what the retail stores are doing. This seems impersonal but would be a non-discriminatory safety measure.

5. Libraries could rearrange their computer areas to provide some distance between each terminal. However, if rearranging isn’t practical, they could have only every other computer terminal operational to force some distance between the users and perhaps limit the amount of time each user may be on the computer. Computer users can put their name back on the waiting list to have another turn if they don’t complete what they need to do on the computer the first time. The library could sanitize the terminals between users.

6. Libraries could limit story time and other programs to X number of people, first come first serve and make sure they are holding the programs in a large enough space that individuals are not on top of each other, and so on. Maybe those turned away because the program filled up could get to be first on the list for the next program. Or, maybe the program is repeated multiple times so everyone can have a chance to attend since smaller groups will be allowed to attend each time. Don’t pass around objects to be touched by multiple people at story time  or programs; continue to keep puzzles and games put away out of reach or require that they be checked out and checked in even while using on the premises so they can be sanitized between users, etc. Capacity limits for story time or other programs should be stated on the program description. For example: “This program is limited to X number of attendees and is first come first serve” or “Attendees may register via X or Y.”

7. Libraries could still post a sign at the library entrance and have a policy requesting that those with communicable illnesses refrain from entering the library. However, trying to kick patrons out if they are coughing or have a runny nose could be problematic for multiple reasons. Library staff don’t know if the patrons might have allergies, asthma, lung disease, cancer, etc. Additionally, with COVID-19 and other communicable illnesses, sometimes the person is contagious before they even show symptoms and sometimes a person may still be coughing after they are no longer contagious.

8. It is possible for libraries to set a lower maximum capacity threshold for their buildings that will allow for six feet between every person in the library to try to prevent against overcrowding but this could be difficult to enforce unless the library stations someone at the door to do head counts of everyone coming in and out. This would obviously draw criticism if people are forced to wait to come in until others have come out but would not be discriminatory if enforced consistently. Libraries will want a policy in place for this and should expect to have to address complaints. This will likely not be a popular move.

Wherever the general public gathers, whether retail or grocery stores, the mall, restaurants, the Bureau of Motor Vehicles or the public library, there will always be some risk of being around others with communicable illnesses. However, as stated above, there are measures that can be taken to help reduce the risk of spread of such illnesses and make public places safer for all.

This blog post was written by Sylvia Watson, library law consultant and legal counsel, Indiana State Library. For more information, email Sylvia.

Changes coming to overtime eligibility requirements under the Fair Labor Standards Act

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This blog article should be considered general information and should not be construed as legal advice. The article reflects the Department of Labor rules on the Fair Labor Standards Act at the time the article was written but may not include every detail or nuance and may not reflect the law in other jurisdictions. Additionally, laws frequently change. The reader should not act on the information contained above but rather should act on the advice of his/her own legal counsel or other appropriate professional.

What is the Fair Labor Standards Act?
The FLSA is the set of federal laws that establish minimum wage, overtime pay requirements, employment record keeping, child labor standards and break time requirements for breastfeeding mothers. Please be mindful that there are also state laws in Indiana that cover some of these topics, so it’s important to review both when trying to determine what the law requires.

In general, the FLSA currently provides that nonexempt employees must be paid for all hours worked at a rate of at least $7.25 per hour. The FLSA also provides that nonexempt employees must be paid overtime pay at a rate of 1 ½ times their regular rate of pay after working 40 hours in any given week. The record keeping requirements applicable to the records of the nonexempt employees include identifying information about the employee, hours and days the employee worked, wages paid to the employee, including any overtime, as well as any wage deductions. There are different requirements for the records of exempt employees. The FLSA includes restrictions on hours of work for minors under 16 as well as lists of occupations deemed too hazardous for minors to work. Indiana state law actually provides more protection for employees and thus would trump the FLSA provisions related to break requirements for breastfeeding mothers.

Image courtesy of Pixabay.com

What does exempt/nonexempt mean?
The overtime and minimum wage provisions provided by the FLSA are applicable only to employees classified as nonexempt. Employees classified as nonexempt are eligible to enjoy the protections provided by the FLSA. Employees classified as exempt cannot benefit from – do not qualify for – the minimum wage or overtime provisions of the FLSA. They are excluded from the FLSA provisions.

How do I know if I am exempt or nonexempt?
Prior to Jan. 1, 2020, in order to be exempt from the FLSA, an employee must be paid a salary of $455 or more per week – $23,660 annually. Additionally, the person must perform duties that would be classified as executive, administrative, professional or be a computer technician, outside sales representative, or highly-compensated employee earning $100,000 or more annually. In order to be exempt, the employee’s job duties and salary must meet all of the FLSA requirements. To find out what duties qualify under the executive, administrative, professional and computer technician exemptions, see this guide.

What are the upcoming changes?
Beginning Jan. 1, 2020:

  • The salary level part of the test – the test that is used to determine if an employee is exempt or non-exempt – is changing from $455 per week to $684 or more per week – $35,568 or more annually.
  • The total annual compensation requirement for “highly-compensated employees” is changing from $100,000 per year to $107,432 per year.
  • Employers will be able to use non-discretionary bonuses and incentive payments – including commissions – paid at least annually to satisfy up to 10% of the standard salary level.
  • The special salary levels for workers in U.S. territories and the motion picture industry have been revised.

Government employers may continue to use compensatory time instead of paying overtime in the event that is the government employer’s policy. Similarly to overtime pay, comp time accrues at 1.5 hours for every hour worked over 40 by a non-exempt employee in any given work week.

When will the changes take effect?
The rule takes effect Jan. 1, 2020. Until that time, everything stays the same.

Who do I contact if I have questions about this?
The U.S. Department of Labor, Wage and Hour Division may be contacted for more information at 1-866-487-9243. The U. S. Department of Labor also has a website that explains the FLSA in more detail.

This blog article is general information and should not be construed as legal advice.  This article reflects Indiana law at the time the article was written but may not include every detail or nuance and may not reflect the law in other jurisdictions. Additionally, laws frequently change. The reader should not act on the information contained above but rather should act on the advice of his/her own legal counsel or other appropriate professional.

This blog post was written by Sylvia Watson, library law consultant and legal counsel, Indiana State Library. For more information, email Sylvia.

Whistleblowing in Indiana

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This blog article should be considered general information and should not be construed as legal advice. The article reflects Indiana law at the time the article was written, but may not include every detail or nuance and may not reflect the law in other jurisdictions. Additionally, laws frequently change. The reader should not act on the information contained in this article but rather should act on the advice of his/her own legal counsel or other appropriate professional.

Reports to State Board of Accounts
This past legislative session, the Indiana General Assembly made a lot of little changes to Indiana laws that largely went unnoticed. One of the changes was related to reporting misfeasance, malfeasance or nonfeasance on the part of a public officer to the Indiana State Board of Accounts. SBOA is the state agency responsible for monitoring the financial integrity of Indiana’s state and local government entities. As of July 1, 2019, statute IC 5-11-1-9.5 language broadens to allow reporting to SBOA wrongdoing committed by not just public officials but also by any individual who has responsibility for administering public funds on behalf of an entity. The law provides some job protection, at least in theory, when the report is made by a state or local government employee. However, a report could be made by anyone. The law states that the public office, officer or institution may not retaliate against an employee of the state or local government entity for making such a report to SBOA alleging wrongdoing. The law also provides that an individual who has been terminated, demoted, suspended, threatened, harassed or otherwise discriminated against by the individual’s employer as a result of the individual’s good faith report is entitled to all relief necessary to make them whole again. “Relief” may include reinstatement to their job, two times the amount of back pay owed to the individual, interest on the back pay owed to the individual, compensation for any special damages suffered by the individual including litigation expenses or reasonable attorney’s fees.

Reports made by state employees
Indiana law includes several other whistle blowing statutes. In addition to the above law, there is a whistleblower law that specifically applies to employees of Indiana state agencies. IC 4-15-10-4 provides that a state agency employee may report in writing to a supervisor or the Inspector General a violation of a federal law or regulation, a state law or rule, an ordinance of a political subdivision or the misuse of public resources. This law, like the one previously discussed, also includes some protection for the employee making the report. As long as the employee made a reasonable attempt to determine the information reported is correct, the employee may not be terminated, demoted, transferred or reassigned, have salary increases or employment related benefits withheld or be denied a promotion the employee would have otherwise received just for having made the report. However, the employee can be subject to disciplinary action, including termination, in the event the employee knowingly provided false information. Additionally, employers who violate this law are subject to possible criminal prosecution.

Reports made by local government employees
There is a corresponding whistleblower law, IC 36-1-8-8, that specifically applies to employees of political subdivisions. Political subdivisions are local government entities such as public libraries, schools, cities, towns, townships, counties and more. Just like state employees, local government employees may report in writing a violation of a federal law or regulation, a state law or rule, an ordinance of a political subdivision or the misuse of public resources. However, the report must first be made to the employee’s supervisor or appointing authority unless the supervisor or appointing authority is the person about whom the report is being made. If the report is about the employee’s supervisor or appointing authority, then the statute points to the State Ethics Commission laws to determine to whom the report should be made. It appears a report could be made to the prosecuting attorney of each county in which the violation occurred, SBOA, the attorney general, a state officer or the governor, among others. If a good faith effort is not made to resolve the problem, then the employee may make a report to any person, agency or organization. IC 36-1-8-8 contains similar job protections as its state employee counterpart for good faith reports made by local employees. The state and local laws are also similar in that disciplinary action can be taken against the employee for making a false report. Local government employers who violate this law and who take adverse employment action against an employee who made a good faith report of wrongdoing commit a Class A infraction.

Reports made by private sector employees
There is also a whistleblower law that covers private sector employees whose companies are doing work pursuant to a contract with a public agency. IC 22-5-3-3 is very similar to the whistleblower laws that cover state and local government employees.

This blog post was written by Sylvia Watson, library law consultant and legal counsel, Indiana State Library. For more information, email Sylvia.

Helpful online legal resources available from the Indiana Courts website

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Many, or perhaps even most, public librarians in Indiana know that forms for filing for a divorce in Indiana are available at the Indiana Supreme Court Self-Service Legal Center. The forms are divided into four categories: with children with an agreement on all issues, with children without an agreement on all issues, without children with agreement on all issues and without children without an agreement on all issues. But, did you know resources for a number of other legal issues can be found on the Indiana Courts’ website, either at the public courts portal or at the self-service web page?

In addition to divorce, the Indiana Courts web pages also provide helpful information about child support guidelines. Furthermore, parenting time guidelines, a calendar and a child support calculator are available. The Self-Service Legal Center also contains sample forms for expungement and links to help with mortgage foreclosures. A page on small claims court provides a video to watch before making a decision to go to small claims court without an attorney, as well as a link to Marion County Small Claims Court (damages limited to $8,000) rules and forms and a handbook on how to handle small claims court cases outside of Marion County. Information on how to apply for a marriage license is also available.

When you share these resources with patrons seeking assistance with legal research, remember to steer clear of practicing law. Avoid telling the patron your opinion or what you think they should do by using an appropriate disclaimer such as “I can’t offer you any advice. You would need to see an attorney to get legal advice on your individual situation.”

Additional resources:
Indiana Child Support Hotline
(800) 840-8757
Automated payment information is available 24 hours a day, seven days a week. Customer service representatives are available from 7 a.m. until 6 p.m. EST, Monday through Friday.

Indiana Parenting Time Helpline
(844) 836-0003
Help is available from 12 p.m. until 5 p.m. EST, Monday through Friday. Staffed by licensed attorneys who can provide education about parenting time guidelines, information about visitation questions and relevant referrals for assistance.

This blog post was written by Cheri Harris, certification program director/legal consultant, Indiana State Library. Cheri can be reached by email.