Send your questions to Steve Key, HSPA executive director and general counsel, skey@hspa.com or call (317) 624-4427.
The following questions were submitted by a Westfield resident, Spencer Evening World:
Pre-council meetings might or might not be subject to Open Door Law
Q: I’ve been watching the Westfield City Council. What is your opinion of the meeting described here? “Pre-Council is only for setting agenda, not discussion of agenda items. Two to three councilors rotate, although the council president always attends, as well as department heads, clerk, and attorney. Usually held Wednesday morning week before regular meeting. Not open to public.”
A: If this is a council- created or council president-created committee, it would subject to the Open Door Law. If not, then as long as the number of council members present doesn’t reach a quorum, then it wouldn’t meet the definition of a meeting under the Open Door Law and could be closed to the public. So you’ll have to determine its origin.
County hiring decision might be null and void if vote improperly taken
Q: I have attached a document —a legal services agreement – from Owen County. I am wondering if it legally holds water? The commissioners voted to hire a county attorney as a part-time contractor. He drew up this agreement, then met with two of the three commissioners at the county highway garage to sign it. The third commissioner told me he had no clue about the agreement or the way it got signed. The county auditor refused to attest to the document because she was not present when it was signed and she also questioned the legality of it.
A: I’d first have to ask when/where did the commissioners vote to hire a county attorney as an outside contractor. If the third commissioner had no clue, it would indicate the decision was not made at a public meeting, unless it was one he missed.
The Open Door Law requires votes to be taken during a public meeting. [See Open Door Law at I.C. 5-14-1.5-6.1(c). They couldn’t have taken the vote legally during an executive session or an “administrative function” session.
If the vote wasn’t taken properly, then anyone could ask the court to declare the contract null and void, but they have to move within 30 days of the illegal act or when the person complaining should have known about the illegal act.
I see this agreement is dated March 1, 2019, so I’m unclear as to how the third commissioner would not have a clue for nearly a year unless the county never paid the attorney for any services in 2019. The commissioners have to approve claims so the third commissioner would have known payments were being made to the attorney.
So the window to ask that the contract be declared null and void probably has passed by now. One could still ask for a declaratory judgment that the Open Door Law was violated or for an injunction requiring the commissioners to comply with the statute moving forward.
I’m not an expert on the legality of the contract if it is missing the auditor’s signature, but that comes back to the length of time this contract has been in existence. If the auditor questioned its legality, I would have thought she would have gone on record to question any payments to James Bryan for legal services over the last 10 to 11 months.
If the auditor and county commissioner did nothing to challenge the legality from March 1, 2019 to the present, a judge may find it difficult to declare the contract void. There may well have been a violation of the Open Door Law and there may have been a requirement for the auditor’s signature that was ignored, but there doesn’t appear to have been any challenge so the attorney has been doing work in reliance upon that contract.
It does appear that the renewal time will be coming up, so the third commissioner could call for a termination of the contract, which would then require a vote to renew, renegotiate, or terminate. That public vote would clear up the future status of the arrangement.
