Present: Jeff Hughes, President, Tom Orschell, and Shane McHenry
Also present: Gayle Pennington, Auditor, Bill Ewbank, County Coordinator, and, Andy Baudendistel, Attorney.
Executive session preceeded the meeting and commissioners denied the appeal at the regular meeting.
Purchasing Agent Ordinance- Hughes said it was an assigned task by the legislature and he would like it taken out. Orschell asked to table it for further review. Tabled.
Contract Amendment- Votaw Building Purchase- JJ Malcolm Inc aka Votaw building. Bill Ewbank presented. Seller wants to extend the closing to April 30, 2011 and possession of the building will be within 6 months of this. Votaw requested this to take advantage of the lifetime captial gains exclusion law. Commissioners approved the amendment.
OKI- Jane Wilke and Travis Miller- Dearborn County Water Quality Management update- Jane Wilke presented that this was under section 208 of the Federal Clean water Act. IDEM has funded $9,000 of this plan. This plan was adopted in 1978 with some amendments. GIS, Planning and Commissioners and Council , Soil and Water, Oxbow, DCRSD etc have participated in this. The public has been involved in several public meetings. Another one will be May 9 at 7 PM at Dearborn County Adult Center. The Plan Commission posts data and information on this plan on their section of the County website. The Plan update will be finalized by June and is due to IDEM this summer. They have mapped certain pollutants. Lower dissolved oxygen, E.coli from animal and human waste, impaired biotic communities, mercury in fish tissue, PCVs in fish tissue still exist as they are fat soluble and stay in fish tissue a long time. Point sources and non-point sources of contamination were identified. Septic tank discharges, sedimentation and siltration, floatables and trash, and unrestricted cattle access. They mapped home sewage problem clusters.
This plan has a 20 year horizon- to 2030. When population data comes in OKI uses it for transportation and also for water quality. OKI also uses future land use plans both for the county and the towns in it. Facility planning areas are created and OKI looked at existing quality, existing and planned areas. Population projections, topography, non point pollution, wastewater management and their resources.
Originally SDRSD, Dillsboro, and Moore’s Hill existed. Now we have LMH, St. Leon, and DCRSD added. There is a federal requirement to get discharge permits and those require looking at the 208 Water plan. These designated areas are on the county website. Go to Government, and then Water Quality Plan.
Considered an amendment that commissioners asked for in the West Harrison TIF district previously as there was a development prospect there that needed to be ready before this summer to get lines in. Whitewater River is a pristine resource and so amendment process was undertaken and passed unanimously to take the sewage to West Harrison. This was designated as a facility planning area.
Hughes said this was responsive and flexible.
$1.3 million was appropriated to build this sewer line by Council.
Wilke thanked Hughes and Orschell for their OKI representation and noted that McHenry has heard this presentation twice now as he was at a previous presentation. Orschell noted that St. Leon was upset that they’d chosen Harrison. He said that it was more economical to use Harrison as "it was all about the money at that point. "
Doxpop Contract- recorder’s office- Glenn Wright- this will allow people to get on internet and pull down their deeds. Checked with 8 other Recorders using them in Indiana and had all positive comments. They also have a fraud alert if someone puts a lien on the property etc. there will be a fee to pull down the deed etc. Ewbank said the contract has been reviewed by the county attorney. Title searching can be done on line now. The fees will go to the recorder’s fund. This is tied to GIS as well. These go back to 1965 for deeds. Mortgages go back to 1990. This would not do a complete title search as they go only to 1965. A DD214 for veterans are recorded – but these are not public record- only the veteran himself, the licensed funeral director, or the veteran’s officer have legal access to these.
There is no cost to the county- these are user’s fees. All old surveys are being scanned into the system. Public can still come to Recorder to get full size images of these. This is just an additional service to the recorder’s regular services. The property watch service is no cost to the user or the county. You can set a watch on your name or your parcels. Enhanced access fund is created (like a perpetuation fund that the state has to keep records) by state law for these fees. Council will set that up. Commissioners approved the contract.
HIGHWAY DEPARTMENT- Todd Listerman gave the following updates:
Contract with URS Corp for design of 2 message signs along US50 for $39,860- 100% reimbursable to the county. There is funding in highway budget to cover this until INDOT reimburses this. Commissioners signed the contract. Will be operational by next spring.
Meeting set up Monday March 28 9 AM commissioners room to discuss regional freight issues with OKI. This is includes rail, truck, and barge traffic. Local cities, Planning dept., and commissioners were notified.
Meeting with INDOT for funding for fiscal 2012.
Orschell and he will meet Thursday with Mr Larry Smith of North Dearborn road for ROW. This will leave only one landowner to settle with. Project is set for 2013.
AUDITOR- Gayle Pennington- - gave Margaret Minzner part of her time to update the commissioners on GIS. Since she was back from medical leave- she was working with Schneider to set up databases with the website. With the webmap they decided what to put on it. They decided what layers they wanted for both public and private use. Hoping within 2-4 weeks they will be ready to demonstrate this all to commissioners.
Schneider has completed the parcel edits. Schneider wants to convert using something like AutoCad. She is hoping to save $5,000 by doing this herself. She is collecting the orphan data as well. They are working on assigning the privileges to different dept. heads. Only a few people can edit. ARC GIS 10 is what they are on now. She doesn’t implement new software until bugs are worked out.
Looking for training opportunities for staff also. They trying to close out with Sidwell. They will set up a 3-day Arc map training for what would have cost $7-10,000. There are some issues with dispatch. They want to fix that up and get address ranges set up to geo-code. They have done some service requests for park board and also GPSing hydrant data for towns. They have provided data for other projects going on.
The commissioners said this GIS report was over their head- but there were an impressive amount of services. Gayle said we will soon see the results of a lot of hard work.
Gayle Pennington presented- claims and minutes- approved.
EMS services from Greendale were approved for 2 units at $20,000 each
ATTORNEY- Andy Baudendistel- this is last meeting on 30 days on SPICE ban and it will go into effect before the next meeting.
Asbury tort claim on L-bg speedway- will show that county has no involvement with the speedway. He is handling that.
Baudendistel then read his 3 page OPINION on the issue of a funds transfer requested by the prosecutor, Aaron Negangard, to pay for his defense on a disciplinary grievance filed against him:
I have reviewed the issue raised by Christine Mueller regarding the transfer of funds approved by County Council on December 14, 2010 and present the following opinion:
Three statutes in the Indiana Code address the issue of representation of Prosecuting Attorneys in certain matters, and they are as follows:
1. Indiana Code 4-6-2-1.5(a) states that: “Whenever any state governmental official or employee, whether elected or appointed, is made a party to a suit, and the attorney general determines that said suit has arisen out of an act which such official or employee in good faith believed to be within the scope of the official’s or employee’s duties as prescribed by statute or duly adopted regulation, the attorney general shall defend such person throughout such action.”
This statute is inapplicable because the legal matter involved in this instance was not a suit, rather it was a disciplinary complaint filed against Mr. Negangard and disciplinary complaints are not contemplated by this statute.
2. Indiana Code 33-39-9 (formerly IC 33-14-11) is titled “Defense and Indemnification of Prosecutors,” however, it states in Section 1 that: “This chapter does not apply to a threatened, pending, or completed action or a proceeding that: (1) results in the criminal conviction of; or (2) is a disciplinary action or proceeding against; a prosecuting attorney.”
As stated above, the matter for which Mr. Negangard received representation was a disciplinary complaint, therefore, Indiana Code 33-39-9 does not apply as it is clearly indicated in Section 1 that it does not apply to disciplinary actions.
3. Indiana Code 33-23-13 (formerly IC 33-2.1-9-1) is entitled “Defense of Judges and Prosecutors,” however, Section 4 (formerly IC33-2.1-9-2) states that: “This chapter does not permit the appointment of counsel for the defense of a judge or prosecuting attorney in criminal or disciplinary proceedings.”
This chapter is inapplicable because it is stating that the Attorney General cannot appoint counsel in disciplinary proceedings and this statute is specifically directed at the Attorney General. Because the Attorney General was not involved in this matter, this statute does not apply.
Based on the above statutes, it is my opinion that the Indiana Code is silent as to the situation before us.
While the cases of State of Indiana v. T. Eric Evans (which involved a prosecutor) and In the Matter of the Honorable Raymond L Kern (involving a judge) may seem to be on point, they too can be distinguished from the situation at hand.
Evans involved the Attorney General going after a prosecutor for misappropriation of public funds. While the ultimate issue was whether or not Evans was entitled to counsel at public expense, the holding of the Court turned on an issue much different from the one before us. The Court in Evans held that the prosecutor could not be represented by the Attorney General because the Attorney General was also the person who was bringing the suit, therefore, the Attorney General would have been representing both the Plaintiff and the Defendant. Furthermore, Evans was seeking counsel at the public expense provided by the Attorney General, which is not the situation here.
The Supreme Court decision in Kern is also inapplicable because, while the judge was attempting to obtain payment from the county for his legal expenses incurred in a disciplinary proceeding, the Court ultimately states that the issue was moot and does not even address the charge; therefore, this case offers no guidance because the Court made no decision on the relevant issue.
Since the statutes and the case law are both inapplicable and do not explicitly say that a County Council cannot provide legal expenses for an elected official facing a disciplinary complaint, it is my opinion that Indiana Code 36-1-3 governs. This statute, more commonly referred to as “Home Rule,” states, in pertinent parts, as follows:
Indiana Code 36-1-3-3(b): “Any doubt as to the existence of a power of a unit shall be resolved in favor of its existence.”
Indiana Code 36-1-3-4(b): “A unit has: (1) all powers granted it by statute; and(2) all other powers necessary or desirable in the conduct of its affairs, even though not granted by statute.”
Indiana Code 36-1-3-4©: “The powers that units have under subsection (b)(1) are listed in various statutes. However, these statutes do not list the powers that units have under subsection (b)(2); therefore, the omission of a power from such a list does not imply that units lack that power.”
Indiana Code 36-1-3-5(a): “Except as provided in subsection (b), a unit may exercise any power it has to the extent that the power; (1) is not expressly denied by the Indiana Constitution or by statute…”
Having read the applicable chapters and analyzed the relevant information, it is my opinion that because there is not a statute specifically forbidding the transfer of funds or the use of the money for legal expenses, whether or not to approve the transfer for the purpose stated was at the complete discretion of the County Council. What occurred is not barred by statute, therefore it is allowable. Mr. Negangard presented the transfer to County Council on December 14, 2010, stated that the transfer was needed to cover legal fees for a disciplinary complaint, the transfer was approved by County Council, and ultimately the Board of Commissioners. A way to avoid this expenditure would have been to have had the County Attorney represent Mr. Negangard in this matter; however, because the disciplinary complaint was filed by the County Attorney, G. Michael Witte, this was not an option and would have resulted in the problem presented in the Evans case.
Again, whether or not to approve the transfer for the stated purposes was at the complete discretion of County Council, therefore it was appropriate.
This opinion was prepared at the request of the Dearborn County Board of Commissioners and presented this 15th day of March, 2011.
Andrew D. Baudendistel # 28212-15
230 West High Street
Lawrenceburg, IN 47025
Hughes won’t be present at the March 22 working meeting. PAWS contract will be discussed then and not take action till May 24 when Council meets to decide on finances for the long term support for the Animal Shelter. Jail expansion will also be discussed then- just informational.
McHenry said our Microsoft licensing was corporate licensing and it was cheaper under gov’t. Gayle said that has been fixed.
Thanks to EMA and Vic Grieve for Highway crew for taking care of flood situation from McHenry.
LATE ARRIVAL INFORMATION: none
PUBLIC COMMENT: Paul Filter expressed his concerns about Dillsboro EMS problem. Two nursing homes out there. Its iffy if any one shows.” It’s not a glorious event- it’s just some sick old person. “ I fell off ladder- no one responded. So they made a second call. Finally an EMT fireman came from a training session in Versailles. Lawrenceburg came and ended up making the run as Dillsboro’s ambulance broke down. Management skills and motivation of the EMS out there were questioned. Scott Fortner at town council tried to get county payments stopped. They got paid the $40,000 by Commissioners. State EMS commission did not do anything the last time this was turned over to them. County Commissioners have more control over them than the town council.
McHenry said the Commissioners the town council and EMS need to meet. He said we are looking at this- and he said McCormack is getting a grant to study this. Filter said he wants them to work with the town. Orschell said he was willing to meet with them. No meeting set.