IS IT TRUE? April 27, 2011

12

The Mole #??

IS IT TRUE? April 27, 2011

IS IT TRUE that with four days remaining in April that the City County Observer has already set a new record for internet site traffic for any month since publishing began?…that the Community Observer may just double its previous best month?

IS IT TRUE that farmers are very industrious and hard working people?…that the government of the City of Darmstadt voted to take every measure to prevent Darmstadt from being annexed by Evansville through consolidation?…that Darmstadt is an incorporated farm community and reflects the views of farmers?…that farmers are not only industrious and hard working but that they basically invented consolidation?…that to have a co-op whether it is for chemical purchase and storage, grain storage, expensive equipment, raising a barn, or in selling contracts on agricultural products are all based on the same principle as consolidation of government?…that farmers enter into cooperative agreements many times on a handshake because they realize the IMMEDIATE TANGIBLE BENEFITS that cooperation brings?

IS IT TRUE that farmers in particular would be the first to recognize any IMMEDIATE TANGIBLE BENEFITS offered by consolidation of the governments of the City of Evansville and Vanderburgh County?…that when some committee, someday innovates the long arm of government enough to show IMMEDIATE TANGIBLE GAINS to both the people of the City of Evansville and the people of Vanderburgh County, that this will be recognized and the farmers, their county neighbors, and the people of the city will approve consolidated government?…that until both sets of voters recognize the FINANCIAL BENEFITS of consolidation that there will be substantial resistance to moving forward?…that after over a year of tightly managed and non-risk taking crafting of a consolidation plan that there are no substantial benefits that have been identified to merit consolidation?…that three less elected officials and a clerk saves each and every resident of Vanderburgh County less than $1 and that $1 is not sufficient to assume the FINANCIAL RISKS associated with joining up with the debt laden and $500 Million sewer needing City of Evansville?

IS IT TRUE that the Evansville Convention and Visitors Bureau hired a law firm to advise them on the legality of their own policies and practices with respect to nominal gift cards, birthday lunches, and of course excessive Christmas parties?…that the that the law firm advised the ECVB had no guidelines in place and that they needed some guidelines?…that the law firm advised the ECVB to follow their codified mission according to state law?…that no policies were violated by anyone in the past?…that any thinking person over the age of 12 could have offered the ECVB the advice to craft some policies that are consistent with state law?…that the City County Observer is curious as to how much money the ECVB spent on legal advice that any lay person would have willingly offered for free?…that it would really be ironic if the legal fee to be told to “DO THE RIGHT THING” exceeded the cost of the Christmas Party that started the whole controversy in the first place?…that in 6th grade football practice a volunteer coach told us three things only about football and life?…his mantra was DO SOMETHING YOU LIKE, DO THE RIGHT THING, and DO YOUR BEST?…that we wonder where to send the bill for this simple but timeless advice that applies to everything that we do as a volunteer or for pay?

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12 COMMENTS

  1. Put the two issues together and show me one significant, tangible benefit to having a CVB.

    Is it true that farmers should/could oppose consolidation for CVB, alone? (A set of highly paid, unelected bureaucrats that are totally convinced that government revenues grow on trees and that they deserve to drink any largesse before any others know about it?)

    Is it true that farmers, in a simple and direct manner, would label our CVB – neer-do-wells?

  3. Nothing like paying good taxpayer funds to quire an opinion that is available online from the Indiana Attorney General.

    In the following opinion, for all intents and purposes, you can substitute the name Evansville Convention and Visitor’s Bureau for Lake County Convention and Visitor’s Bureau.

    * * * * * * * * * * * * * * * * * * *

    OFFICE OF THE ATTORNEY GENERAL

    Official Opinion No. 2008-1

    January 10, 2008

    OFFICIAL OPINION 2008-1

    The Honorable Luke Kenley
    Indiana State Senator
    200 West Washington Street
    Indianapolis, IN 46204

    RE: Applicability of the Indiana Tort Claims Act

    Dear Senator Kenley:

    You have asked if the Lake County Convention and Visitors Bureau (“LCCVB”) is a governmental entity covered by the Indiana Tort Claims Act (“ITCA”).

    Brief Answer

    The LCCVB is a “governmental entity” subject to the provisions of the Indiana Tort Claims Act.

    Legal Analysis

    The ITCA, codified at Indiana Code chapter 34-13-3, is the General Assembly’s expression of the circumstances under which the state and its political subdivisions may be held liable in tort. As recently observed by the Indiana Court of Appeals, ITCA “operates as an unequivocal statement of Indiana’s consent to be sued in tort provided certain qualifications – including notice – are fulfilled.” Oshinski v. N. Ind. Commuter Transp. Dist., 843 N.E.2d 536, 544 (Ind. App. 2006) (emphasis added).

    Our legislature requires protection under the ITCA be given to “governmental entities.” Ind. Code § 34-13-3-4. A “governmental entity,” for the purposes of ITCA, “means… the state or a political subdivision of the state.” Ind. Code § 34-6-2-49 (emphasis added). For purposes of the ITCA, the term “political subdivision” has been broadly defined under section 34-6-2-110 and includes a “separate municipal corporation.”Ind. Code §34-6-2-110(5).

    “Separate municipal corporation” is not further defined under the ITCA. In determining the meaning of statutory language, we note that statutes relating to the same subject matter are “in para materia and should be construed together so as to produce an harmonious statutory scheme.” Orndorff v. New Albany Hous. Auth., 843 N.E.2d 592, 595 (Ind. App. 2006).

    The court in Orndorff considered the definition of “municipal corporation” under Title 36 when ascertaining its meaning for the ITCA. Id. “‘Municipal corporation’ means unit, school corporation, library district, local housing authority, fire protection district… or other separate local governmental entity that may sue and be sued.” Id. (quoting Ind. Code § 36-1-2-10 (emphasis added)). Furthermore, the term “separate municipal corporation” is similarly defined at section 34-6-2-86 for the purpose of public interest lawsuits brought under chapter 34-13-5. Under that section, “separate municipal corporation” means a “local subdivision of the state” or a “public instrumentality or public corporate body created by state law; including but not limited to cities, towns, townships… and any other local public instrumentality or corporation that has the right to sue and be sued” Ind. Code § 34-6-2-86 (emphasis added).

    The LCCVB is a public instrumentality created by state law under section 6-9-2-3(b):

    A convention and visitor bureau having fifteen (15) members is created to promote the development and growth of the convention, tourism, and visitor industry in [Lake] county.

    The LCCVB can sue and be sued. Ind. Code § 6-9-2-4(a)(2). All of its members are appointed by elected officials at the municipal, county or state level. Ind. Code § 6-9-2-3 (c) to (f). LCCVB members must take an oath of office which must be filed with the clerk of the circuit court. Ind. Code § 6-9-2-3(l). The LCCVB is funded, in substantial part, by revenues derived from lodging tax authorized by section 6-9-2-1 and transferred to the LCCVB by the Lake County Treasurer. Ind. Code § 6-9-2-2(b). Its budget must be submitted to the Indiana Department of Local Government Finance, and “[a]ll money in the bureau’s funds shall be deposited, held, secured, invested, and paid in accordance with statutes relating to the handling of public funds. The handling and expenditure of money in the bureau’s funds are subject to audit and supervision by the state board of accounts.” Ind. Code § 6-9-2-4(b) and (c).

    Moreover, the LCCVB has been granted the one power that is unique to governmental entities – the power of eminent domain:

    The bureau may… exercise the power of eminent domain to acquire property to promote and encourage conventions, trade shows, special events, recreation, and visitors within the county.

    Ind. Code § 6-9-2-4(a)(9).

    Given the foregoing statutory framework, the LCCVB meets all definitions of a “separate municipal corporation” under the ITCA. See generally Orndorff, 843 N.E.2d at 595 (holding local housing authority created pursuant to an act of the General Assembly “comports with the definition of a municipal corporation because it is a public instrumentality created by state law, and has the right to sue and be sued”). The LCCVB is created by state law and has the right to sue and be sued. It has the uniquely governmental power of eminent domain and it is authorized by statute to receive and spend tax revenues.

    The LCCVB is more clearly a “governmental entity” than many entities which our courts have analyzed and held, as a matter of law, to be subject to the ITCA. For example, the Indiana Supreme Court underwent a comprehensive analysis and ultimately determined that private individuals comprising a volunteer fire department were endowed by the state with power or functions that were uniquely governmental in nature and thus subject to ITCA. Ayres v. Indian Heights Vol. Fire Dept., Inc., 493 N.E.2d 1229, 1235 (Ind., 1986). The Indiana Supreme Court has also held that a private nonprofit agency designated by the Governor as a community action agency was a governmental entity within the ambit of the ITCA. LCEOC, Inc. v. Greer, 735 N.E.2d 206, 208 (Ind. 2000). More recently, the Indiana Court of Appeals sua sponte held as a matter of law that the privately owned Indianapolis Water Company, operating by the authority and at the will of the City of Indianapolis, should be considered a governmental entity for the purpose of ITCA. Metal Working Lubricants Co. v. Indianapolis Water Co., 746 N.E.2d 352, 359 (Ind. Ct. App. 2001).

    Conclusion

    It is the opinion of this Office that the Lake County Convention and Visitors Bureau created by the General Assembly at Indiana Code section 6-9-2-3 (b) is a “governmental entity” under the Indiana Tort Claims Act and is entitled to all of the immunities, limitations on liability, and notice requirements set forth in that Act.

    Sincerely,

    Stephen Carter
    Attorney General

    Susan W. Gard
    Deputy Attorney General

    Posted: 01/23/2008 by Legislative Services Agency

  4. “The handling and expenditure of money in the bureau’s funds are subject to audit and supervision by the state board of accounts.” Ind. Code § 6-9-2-4(b) and (c)., and “[a]ll money in the bureau’s funds shall be deposited, held, secured, invested, and paid in accordance with statutes relating to the handling of public funds.”

    The ECVB and the LCCVB were created under the same statute IC 6-9-2-3.

    Both are governed by Indiana statute on the handling of public funds, and both can be sued.

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