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 “clarificationâ€, 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 (“SBOAâ€) 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.â€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.â€
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 Corporationâ€
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 agencyâ€, 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 agencyâ€
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 agencyâ€
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?
EDITORS FOOTNOTE: We are asking our readers to “like page” on Facebook and encourage friends and family to do so, as well?
If you would like to advertise in the CCO please contact us City-County Observer@live.com.
Todays “Readers Poll” question is: Do you feel that “Keep Evansville Beautiful” should take a more active role in keeping political signs off the public right a way?
Copyright 2015 City County Observer. All rights reserved. This material may not be published, broadcast, rewritten or redistributed
I could use some help. Give me a call 812 653 2164
I’ll be giving you a call this evening, around 6 PM if that is OK
A couple of helpful comments on requesting material under the Indiana Access to Public Records Act (ARPA)
Time frames for responding to APRA Requests depends on the manner in which the public agency receives the request is covered under IC 5-14-3-9
If requester is physically present in the office of the agency, makes the request by telephone, or requests enhanced access to a document, the agency has twenty-four (24) hours to respond (enhanced access=on disk or through remote computer)
If the request is made by mail or by facsimile the public agency has 7 days from the date the public agency received the request to respond
Important: Production of documents is not required in these time frames, but within a reasonable period of time
In addition to examining the records of an agency, there is also the issue of people wanting to see copies of email, which Indiana refers to as “Electronic Mail”
A public record is any record, including electronic media, that is created received, retained, maintained, or filed by or with a public agency.
Electronic mail must be available for inspection and copying by the governing body unless an exception to disclosure, based on the content of the email, applies.
Electronic mail must be maintained in accordance with records retention schedules, pursuant to I.C. 5-15.
So, for people that want to request records, there is an advantage to a citizen actually going to an office in-person and making the request in person. Once you are there, you can probably fine-tune your request by seeing the records and deciding what records you want.
The bigger question here is if the public thinks the City of Evansville or any of its departments should be allowed to contract with, or in any way do business with a corporation, where public funds in any form are being handed over to that corporation, IF that corporation IS NOT subject to any sort of audit or subject to Indiana public access laws? It would appear such a situation would be inviting abuse of taxpayer funds.
What sort of motivation would anyone in government, from legislators, to governors, to mayors, and to DMD executives have in creating such a situation? There is only one lobby in the State powerful enough to pull this off, and we all know who they are.
Pressanykey
Excellent comments.
I can comment on some of this. The Indiana Public Access Counselor has numerous complaints and advisory opinions that deal with the premise you show.
The main point is that there are an innumerable number of non-profit agencies in Indiana that are 501(c)3 that receive all or a large part of their operating funds from municipal sources (local, state, or federal). Just because they receive the public funds does NOT mandate that they be subject to SBOA audits on an annual basis. To be honest, if all non-profits that get public funding were subject to a state audit, the State Board of Accounts would not survive. The funding necessary for 100% audit of public funds is prohibitive.
However, as outlined in several of my recent comments, an agency who receives public funds would be audited if a complaint of something inappropriate was found. The non-profit who misused public funds would not only be required to pay the funding back, they would be subject to fines and could be banned from every participating in local, state, or federal funding in the future. They also would be eligible for criminal prosecution.
Your thoughts on that?
And just how would one discover the “inappropriate” behavior when there is no public access to their records or meetings? I fully understand the prohibitive costs involved in requiring the SBOA to audit every corporation. In the case of these NFPs that financial picture is available in their IRS Form-990 filings, but a lot of their “program expenses” lack the detail that the public needs to make an informed decision about the corporation. It is left to the individual to do their own research, which is drastically restricted when the target corporation takes a position that the public has no right to know. When NFPs take that position, you know it is time to pull the public funding out.
And then there is this from CCO’s today (2-17-2016) Is It True column:
IS IT TRUE that the transfer of the Hotel Parking Garage to the Evansville Brownfields Corporation now will allow this public project to proceed without the competitive bidding process?
I can not even imagine how much extra it has cost local taxpayers over the last 20 years because of no bid public construction projects going to an anointed few. The practice is still in full force. Who can forget when a group of local contractors finally had enough and filed suit. They won their suit, but the court did not award them damages because they did not claim any in their suit.
But wait a damn minute here. What about the taxpayers who were PAYING for the construction project? They were not even MENTIONED! Did the taxpayer suffer damages in the form of HIGHER TAXES because the project did not receive competitive bids? You damn right they did!
The court failed the taxpayers and the contractor group, and a favored firm came out on top, and is well positioned for the next big public project in downtown Evansville. I say “public project” because as far as I can determine the funds that will be used by IU and the City of Evansville for the project come from tax dollars.
Comments are closed.