Classykvillepolitics Enlightens CCO Readers of Indiana Public Access Counselor Determination.

Sorry I am late to the game, but I’ve been on the road again.

As I have previously indicated, many of the local issues can and should be considered for submission to the Indiana Public Access Counselor for determination. This accomplishes a number of things that are critical for continued resolution.

The Public Access Counselor provides advice and assistance concerning Indiana’s public access laws, specifically the Access to Public Records Act (APRA) and the Open Door Law (ODL)to members of the public and government officials and employees.

First, aspects of issues that are considered by the Indiana Public Access Counselor do have the capability of setting binding precedent for issues locally

Second, if a local arm of government is in violation of any sections of the Indiana Code or Indiana Administrative Code, there are financial penalties (which can be significant) that can be levied against a municipality.

Finally, issues submitted to the Indiana Public Access Counselor do not require an attorney or elected official to seek determination. In fact, many issues submitted to the Indiana Public Access Counselor for advice come from private citizens who feel they have been denied appropriate access to public records. These citizen violation concerns usually cover two aspects of public records: Access to Public Records Act and the Open Door Law.

The important thoughts here are that the Indiana Public Access Counselor interprets the issues and approaches it two ways. If a municipality, employee, or citizen submits a formal complaint, the Indiana Public Access Counselor will issue an “Advisory Opinion” per Indiana Code 5-14-5. For cases where the issue is not so much as a complaint as a request for “clarification”, there will be an “Informal Opinion” released to assist in guidance.

In the case at hand today, we have been having a long-term discussion of the Evansville Brownfield and the aspect of their audits and whether the public has a right to see them. I did some research into this, and found something not only enlightening, the sole case from the Indiana Public Access Counselor was a case involving the Evansville Brownfield back in 2009.

In June of 2009 the Indiana Public Access Counselor released an Advisory Opinion regarding Formal Complaint 09-FC-126 regarding the “Alleged Violation of the Open Door Law by the Evansville Brownfield’s Corporation” which was as follows:

Alleged that the Corporation violated the ODL by declining to provide notice of its meetings
Alleged a citizen telephoned the office and inquired about the next meeting date and time which was not given
Alleged that the Corporation was in violation of the ODL because the Corporation’s board makes decisions at its meetings about the use of public funds.

http://www.in.gov/pac/advisory/files/formal_opinion_09-FC-126.pdf

(Do I have your attention now?))

The Evansville Brownfield’s responded with the following:

Evansville Brownfield’s contended it is not a public agency and is therefore not subject to the ODL.

Evansville Brownfield’s is a non-profit corporation organized on March 24,2003.

Evansville Brownfield’s is controlled by a five-member Board, some members of which are also public officials.

Evansville Brownfield’s is a tax exempt entity, files IRS Form 990,maintains a separate bank account, approves its own contracts, maintains its own insurance, and maintains its own records.

Evansville Brownfield’s contended it is not subject to audit by the Indiana State Board of Accounts (“SBOA”) that is required by statute, rule or regulation but does agree contractually to be subject to an audit.

As of 2009, Evansville Brownfield’s has not been audited by the SBOA.

Evansville Brownfield’s contended that its arrangement is similar to a fee-for-services agreement and as such it is not subject to the ODL.

After considering all this in detail, the Indiana Public Access Counselor declared as follows:

Because Evansville Brownfield is a non-profit corporation not formed by statute, ordinance or executive order, most of the entity types listed in IC § 5-14-1.5-2(a) are not applicable.

The Indiana Public Access Counselor analysis turned to the one provision which may apply, IC § 5-14-1.5-2(a)(3)(B). It is often the case that a non-profit corporation is also considered a public agency for the purposes of the ODL because it is subject to SBOA audit and the audit is required by statute, rule or regulation.

The complaint from 2009 indicated the belief that the Evansville Brownfield was a public agency because at its meetings the Board makes decisions regarding the use of public funds. That the Board may make decisions regarding its use of public funds, though, is not determinative on the issue. The question is whether the Evansville Brownfield is subject to audit by the SBOA and whether that audit is required by statute, rule, or regulation.

Evansville Brownfield indicate in 2009 that it contractually agreed to be subjected to audit by the SBOA. Contractual obligation to an SBOA audit, though, is not the same as an audit required by statute, rule, or regulation. The Indiana Public Access Counselor found no statute, rule, or regulation requiring the Evansville Brownfield to be subjected to an SBOA audit. Rather, as the Evansville Brownfield pointed out, its arrangement is more like a fee-for-services arrangement as contemplated in I.C. § 5-14-1.5-2.1 and Perry County Development Corporation v. Kempf, 712 N.E.2d 1020 (Ind. Ct. App. 1999).

The Kempf court said that an entity (here, a non-profit corporation) “does not become a ‘public agency,’ thus coming within the purview of the statutes in question, by contractually agreeing to submit to an audit. . . Rather, an entity is ‘subject to’ those procedures only if compelled to submit by statue, rule, or regulation.”Id. at 1025.

The Indiana Public Access Counselor in 2009 decided that the facts were similar to those in Kempf. Evansville Brownfield contended the continued funding of grants is dependent on the continued performance under the applicable statutes. If Evansville Brownfield failed to perform as required, Evansville Brownfield would be required to return the money. As was the case in Kempf, “[t]he fact that said funds were derived from public sources does not transform [the entity] into a public agency.”

In conclusion, in 2009 the Indiana Public Access Counselor issued the opinion that the Evansville Brownfield’s was not covered by the Indiana Open Door Law.

OK, now having written all that (I love legal work), I pose the following:

With the recent change by the Evansville City Council and the Department of Metropolitan Development in how the Evansville Brownfield operates, I would submit that the time is VERY ripe for a citizen to submit a complaint and request to the Indiana Public Access Counselor seeking clarification to the 2009 decision regarding Formal Complaint 09-FC-126 – “Alleged Violation of the Open Door Law by the Evansville Brownfield’s Corporation”

The reason I focus on this is the section of law in I.C. § 5-14-1.5-2.1 regarding the declaration of what constitutes a “public agency”, and I specifically refer to section (5) in that section of the Indiana Code, which states

“Any advisory commission, committee, or body created by statute, ordinance, or executive order to advise the governing body of a public agency”

Would anybody agree that the ordinance from the Evansville City Council regarding the operation of the Evansville Brownfield’s has changed from 2009, and since they are now covered by a local “ordinance” that would suffice to place them under the coverage of being declared a “public agency”

I have to opine that the circumstances have changed greatly regarding the makeup and authority of the Evansville Brownfield’s, and as such they may now be declared as a “public agency” as set out in I.C. § 5-14-1.5-2.1

Anybody want help submitting the request to the Indiana Public Access Counselor?

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Last Friday afternoon the City-County Observer published “breaking news” of City Attorney Nick Cirignano’s refusal to provide Evansville Brownfield’s past audits to Brownfield transparency crusader George Lumley. We believe that the City Legal Counsel’s refusal to share the records of a non-profit that is wholly funded with public monies is a smoking gun, if ever there is one!

We don’t hold Mr. Cirignano solely responsible for the decision to keep EBC’s audits since 2009 under wraps, though. He has a boss, and that boss, Lloyd Winnecke just won re-election as Mayor of Evansville running on a platform of transparency. There are a lot of reasons to doubt that transparency. Before the election, it was known that the Icemen were considering leaving the city, and the investigation of the use of TARP funds for the relocation of D-Patrick’s downtown lot to the corner of Walnut and Hwy 41 was being dismissed as a routine audit. On top of those examples, we are still are awaiting the overdue publication of the results of the SBOA audit for 2014. Nobody seems to know if former Councilman John Friend  CPA was right about $6,000,000 being unaccounted for, but it is past time for the information to be made public.

We hope that the Mayor will see fit to be accountable to the voters and release information concerning the details of the agreement for the new hockey team that will play at the Ford Center next year, and we hope that he will encourage the SBOA to release the overdue results of the 2014 audit. Even more, we look to him to release the Brownfields audits to George Lumley. If everything is in order, it seems that the Mayor would be anxious to make that information public. It is also disappointing to see that the mainstream media isn’t taking more interest in these issues, as it appears that they have begun to occasionally be critical of our current leadership.

We are asking the Mayor to live up to his pledge of accountability and transparency by releasing the audits requested by Mr, Lumley. We have long been wondering how the Maybelle-Montrose give-away is justified and many of our readers have,too. By releasing audits, Mayor Winnecke can clarify the propriety of the expenditures that many of us have questioned. We are asking our readers to join George Lumley and the City-County Observer to call on the Mayor to live up to his campaign promises of accountability and transparency.