Commissioners stand by their actions

Jay County Commissioners stand by their actions. 

Their legal representative says they have followed Indiana law and intend to defend a dispute of those actions if necessary.

Commissioners heard a prepared response Monday from county attorney Wes Schemenaur to the letter The Commercial Review submitted to them May 10.

They also agreed, per Schemenaur’s request, to submit the response as a letter to the editor of the newspaper. (It will run in Thursday’s print edition online and has already been posted online at thecr.com.)

The Commercial Review questioned the legality of discussing the county’s proposed contract with Jay County Development Corporation during an “administrative” meeting May 2. President, editor and publisher of The Commercial Review Ray Cooney sent a letter to commissioners urging them to “publicly acknowledge that discussion of the proposed contract with Jay County Development Corporation at the administrative meeting was inappropriate and constituted a violation of Indiana’s Open Door Law.” It also urged that commissioners keep any future administrative meetings to “routine activities that are reasonably related to the everyday internal management of the county” as required by Indiana Code 5-15-1.5.5(f).

If commissioners did not do so, The Commercial Review said it would file a formal complaint against Jay County Commissioners to the Office of the Public Access Counselor. The newspaper also printed an editorial Saturday relaying that information to the public.

On Monday, Schemenaur cited Indiana Code which allows county executives to meet without a 24-hour notice if the meeting is intended for “administrative functions,” which are defined in the statute as “only routine activities that are reasonably related to the everyday internal management of the county or town, including conferring with, receiving information from, and making recommendations to staff members and other county or town officials or employees.”

(The section also states “administrative functions” do not include “taking final action on public business,” “the exercise of legislative powers” or “awarding of or entering into contracts, or any other action creating an obligation or otherwise binding the county or town.”)

Schemenaur referred to Indiana Code 36-2-3.5-4(a), which states “all powers and duties of the county that are executive or administrative in nature shall be exercised or performed by its executive, except to the extent that these powers and duties are expressly assigned to other elected officers.” The subsection of that text, he added, includes the ability to “negotiate contracts for the county.”

“This statute expressly makes the negotiation of contracts on behalf of the county an executive, or administrative, function,” he said.

Schemenaur said municipal executives regularly negotiate and talk about the terms of contracts before they are brought to a public vote. He noted proposals are often amended and re-written multiple times before being brought to a public vote.

“The Open Door Law only expresses and prohibits the awarding or entering into contracts creating a binding obligation on the county in an administrative meeting,” he said. “By expressly prohibiting the awarding of a contract in such a session, the legislature clearly contemplated the contracts with the county would necessarily be discussed, otherwise there would be no need to include the express prohibition on voting in the statute. Likewise, if the legislature intended to prohibit discussion of contracts in the statute, it could have clearly done so.”

Despite commissioner Rex Journay’s email to Jay County Development Corporation representatives that used the word “decision,” said Schemenaur, there was no vote taken on May 2 to award or deny a contract. He said discussion regarding a counterproposal to the contract with JCDC was “well within their executive and administrative function.”

He compared county commissioners’ roles to those of a mayor, noting they routinely negotiate contracts prior to bringing them to a vote before the appropriate body. Those preliminary discussions are not always occurring while the public is present.

“The county commissioners are no different just because there are three executives instead of one,” he added.

Schemenaur also said he took issue with The Commercial Review’s demands, specifically addressing Cooney. He asserted The Commercial Review should have filed a complaint with the Indiana Public Access Counselor’s Office immediately instead of waiting for a response from commissioners.

He also alleged that because The Commercial Review sought an opinion from Britt outside the formal complaint process — it allows for a response to the complaint by the county, he noted, which has not yet occurred — that commissioners couldn’t expect to receive a fair opportunity to respond to a formal complaint or impartial judgment of the facts.

He accused The Commercial Review of giving a “one-sided account” to the public access counselor and of its article impacting the May 7 primary election results. (Republican Duane Monroe picked up 67.7% of the vote against incumbent commissioner Brian McGalliard.) 

Schemenaur also noted the formal complaint process could result in a $100 fine and, under some circumstances, result in awarding attorneys’ fees to the prevailing party.

“As the county’s legal counsel, I stand firm in the opinion that they did not violate the Open Door Law and that the meeting was not illegal, and if legal action is taken against the county, the county will vigorously defend such a suit and will seek all appropriate remedies,” he said.

Addressing the letter prior to Schemenaur, commissioner president Chad Aker said, “Any meetings we have is done through our counsel.”

Schemenaur noted the county will not give further comment on the matter because of the threat of litigation.