Attorney defends commissioners

To the editor: 

Indiana Code 5-14-1.5-5(f) permits the county executive to meet without 48 hours’ notice if the meeting is held solely to receive information or recommendations in order to carry out administrative functions related to the county’s executive powers. “Administrative functions” are routine activities that are reasonably related to the everyday internal management of the county, including conferring with, receiving information from and making recommendations to staff members and other county officials or employees. 

Indiana Code 36-2-3.5-4(a) provides that all powers and duties of the county that are executive or administrative in nature shall be exercised or performed by its executive (the county commissioners), except to the extent that these powers and duties are expressly assigned to other elected officials. Further, IC 36-2-3.5-4(b)(9) provides that the county commissioners shall negotiate contracts for the county. This statute expressly makes the negotiation of contracts on behalf of the county an executive or administrative function. 

Municipalities enter into numerous contracts each year related to the internal management of the county. These contracts range from contracts for services provided to the county, such as phone and internet, to contracts for the purchase of equipment and supplies, and contracts with engineers and consultants to carry out the everyday functions of government. One permissible contract that a county, city or town may enter into is a contract with a nonprofit corporation whose primary purpose is to assist government in planning and implementing economic development projects. See I.C. 6-3.6-10-2(7). 

The municipal executive routinely negotiates and discusses the terms of contracts prior to them being brought forward for a public vote. The negotiation process itself is inherent within the executive or administrative power of the county executive. This process often involves conferring with legal counsel and/or other county employees or officials. Often there are proposals or items contained in contacts that are amended, deleted or rewritten numerous times with suggestions or counter-proposals from both parties before a final version of the agreement is ripe for public vote. 

The Open Door Law only expressly prohibits the awarding or entering into contracts creating a binding obligation on the county in an administrative meeting. By expressly prohibiting the awarding of a contract in such a session, the legislature clearly contemplated that 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 the discussion of contracts in the statute, it could have clearly done so. Contrary to commissioner Journay’s email, no vote was taken on May 3 to award or deny a contract. The discussions were held to confer with the county attorney regarding a counter-proposal to a potential county contractor, the Jay County Development Corporation, well within their executive and administrative function. 

The county commissioners when acting in their executive or administrative function are analogous to the mayor of a city. Mayors routinely, often weekly, negotiate contracts on behalf of the city prior to bringing a contract to a vote before the appropriate body. They routinely seek advice from legal counsel, employees and staff on such matters during the negotiation process. Should the mayors of Portland and Dunkirk invite Ray Cooney to every such conversation? That would be absurd. The county commissioners are no different just because there are three executives instead of one. 

Finally, I take issue with the ultimatum that Mr. Cooney has presented. If Mr. Cooney believed an ODL violation occurred, he should have filed his complaint as outlined in Indiana law. That did not happen here. The public access counselor’s job is to issue opinions on a violation of the law after an investigation. However, Mr. Cooney has already tainted this process by seeking an opinion from the public access counselor outside of the formal complaint process which allows for a response to a complaint by the county prior to the issuance of an opinion. Mr. Cooney contacted the public access counselor directly, gave the counselor one side of the story and quoted the counselor in his newspaper article. He even quotes the public access counselor in his demand letter. If this were a judicial proceeding, this type of communication with the finder of fact would be considered an ex parte communication and is absolutely prohibited. The county commissioners were not given an opportunity to respond to the counselor directly. Now Mr. Cooney threatens to file a “formal complaint.” Hasn’t he already made his complaint and received an answer? How can the county commissioners now expect to receive a fair opportunity to respond to a “formal complaint” where the ruling authority has already given his opinion based solely on Mr. Cooney’s one-sided account? 

A formal complaint is often a precursor to a lawsuit. A court cannot impose a penalty for a violation unless the public access counselor has first found a violation. The public access counselor has already determined that there was a violation based solely on Mr. Cooney’s one-sided account. The county can have no confidence that the public access counselor can impartially judge these facts even if given a chance to respond to a “formal complaint.” Under Indiana law, the court may impose a $100 fine and under certain circumstances award attorneys’ fees to the prevailing party. It is a defense to the imposition of a civil penalty that the commissioners relied on an opinion of their legal counsel. Mr. Cooney has already gotten his tainted answer from the unelected public access counselor and his preferred result in the election as a result. As the county’s legal counsel, I stand firm in the opinion that they did not violate the ODL and that the meeting was not illegal. If legal action is taken against the county, the county will vigorously defend such a suit and seek all appropriate remedies. 

Because of the threat of litigation presented in Mr. Cooney’s demand letter, the county will have no further comment on this matter. 

Respectfully submitted,

Wesley A. Schemenaur

Jay County Attorney