Tuesday, April 6, 2010

Pike Township School Attorney Advises School District To Continue Violating Indiana Law, Will Promote Referendum Using School Website

When it comes to referendums, there are two things I will strongly object to. The first is when a political subdivision attempts to rig the vote by using slanted wording in the question. The second is when taxpayer funds are used directly or indirectly to promote the referendum in violation of Indiana law.

Clearly the convoluted language of the Guion Creek referendum includes slanted wording to try to influence the vote:
"Shall the Metropolitan School District of Pike Township, Marion County Indiana, issue bonds or enter into a lease to finance the Tax Neutral New Guion Creek Elementary School Project in order to create equity among our elementary students in the Century by providing our teachers with the tools needed to offer quality education to all of the children in our community, which is estimated to cost not more than $21,475,000 and is estimated to increase the property tax rate for debt service by $0.2375 per $100 of assessed value based on the assumption that the debt service fund tax rate would otherwise be $0.00?"
The use of "Tax Neutral" (a lie), "equity" and "tools needed to offer quality education" are all hot button phrases included for no other reason than to make sure the question is not fair or objective, but rather one that provides the majority "yes" sought by the Pike administration and School Board.

Recently I found out the administration had gone a step further, placing two pages on the School's Website to promote the Guion Creek referendum.

In an letter to Superintendent Nathanial Jones, I informed him:
IC 6-1.1-20-10.1(b)(1) prohibits political subdivisions (which include school corporations) from using facilities and equipments, including mail and messaging systems, to promote a position on a public question, unless equal access to the facility or equipment is given to persons with a position opposite to that of the political subdivision. I am not aware that you have offered the school districts website to opponents of the referendum. In addition, I would imagine that a school employee or a contractor of the school, paid for with tax dollars, installed the referendum pages. That would be a violation of IC 6-1.1-20-10.1(b)(3).
I proceeded to ask that the administration taken the pages down and that opponents of the referendum be provided equal time for the period the pro-referendum pages had been left up. An easy request. I expected that there wouldn't be any problem at least recognizing the obvious legal violation and taking down the pages.

Not so. Jeffrey Qualkinbush, an attorney with the law firm Barnes & Thornburg, wrote me a letter with the tortured legal reasoning easily summarized as: "because the pages don't explicitly say vote 'yes' on the referendum, the 'facts' contained in the pages do not violate the law."
Apparently Qualkinbush believes people are so stupid they will accept his "legal opinion" regardless of how completely far-fetched it happens to be.

It didn't take long for Qualkinbush to step in the manure he was trying to sell to me. In the very next email he sent he explained that the web pages spell out the "facts" that support the School Board's decision, which decision was to support the referendum. Yep, that's exactly what they are doing. It is also called promoting a position on a public question and under IC 6-1.1-20-10.1(b)(1) it is illegal. Under the Qualkinbush's theory (which frankly I doubt even he believes) it would even be okay to send kids home with "Guion Creek Facts" that promote the referendum - as long as it doesn't include the magic words "Vote Yes." Of course that's not at all what the law says. But, hey, let's not let the actual wording of the statute interfere with the misinformation Qualkinbush intends to hand out.

This is not exactly the first time Qualkinbush has provided the Pike administration and School Board with inaccurate legal advice. During a previous meeting of the Pike Township School Board, administration officials told the Pike teacher union representative they had been advised by their attorney that the case Eastbrook Community Schools Corporation v. Indiana Education Employment Relations Board, Ind. App., 446 N.E.2d 1007 (1983) allowed the Pike administration to overrule the teachers contract that was in effect and change the flex days that were specified in the contract. I reviewed the opinion after the meeting. The case said nothing of the sort. Regardless of which side one was on in the dispute, I do not agree Qualkinbush should have been, through the administration, misrepresenting the law to the teachers and members of the School Board.

Diana Vice over at the Welcome to My Tea Party blog has also written about her experiences with Qualkinbush. I would encourage people to read the posts.
Thursday, December 11, 2008, "Larry Risk's Directive to Barnes & Thornburg Attorney: Get the State Board of Accounts to Agree"

Monday, January 12, 2009, "The political connections of Brian Burdick, the newest Barnes & Thornburg lawyer/lobbyist for the Wilson Education Center"
In her posts, Diana Vice talks about a troubling conflict of interest. Indeed that is a problem here too. Qualkinbush's law firm Barnes & Thornburg has substantial ties to the construction industry and represents several construction companies. The law firm sends out their attorneys to represent local units of government, which inevitably involves advice that the local units - surprise, surprise - engage in more construction at taxpayer expense. Of course the B&T attorneys will do the bond work too - yet more money in the pockets of the politically-connected law firm. Advising the district that the construction is not needed - well that's just not profitable for the lawyers, even if that is what is best for taxpayers.

The fleecing of subunits of government, i.e. the taxpayers, by big law firms is not exactly a new phenomenon in this city. Other firms including Ice Miller, Baker & Daniels, and Bose McKinney do the same thing. But no law firm presently compares to Barnes & Thornburg when it comes to persistently sucking at the public teat, while providing substandard legal work which often cloaks serious conflicts of interest.

We need School Board members who will ask questions about conflicts of interest Qualkinbush and other attorneys might have that affect their representation. We need to have people on the Board who will question why a law firm sends multiple attorneys to a board meeting when one would do. We need School Board members who will look at legal billing records and ask questions as to the specific charges that are made. The failure to ask these questions is irresponsible. The public deserves better.

I close with the not so veiled threat Qualkinbush, made via email, to report me to the Disciplinary Commission when I hit "respond to all" to dispute his legal opinion after Qualkinbush had copied Board members and administration officials with the letter. Apparently Qualkinbush feels he has some sort of right to misinform a school administration and elected School Board members about the law without fear of being contradicted by another more experienced lawyer. Of course he's wrong about that and I'm not about to be deterred by his clumsy attempt to intimidate me or his unprofessional threat against my license. I have been a lawyer for 22 1/2 years including 3 1/2 years as a clerk at the Indiana Court of Appeals interpreting law and writing legal opinions. If Qualkinbush thinks I will quietly sit by while he misrepresents a statute and encourages the Pike School District to violate Indiana law, he should think again. It is never going to happen.

Bottom line is that the voters of Pike Township deserve a fair referendum in which their tax dollars are not used to promote one side over another. That is not happening in Pike.


varangianguard said...

I suppose B&T will have to rotate him elsewhere if you are elcted to the School Board? I hope my township doesn't acquire him.

Paul K. Ogden said...
This comment has been removed by the author.
Paul K. Ogden said...


There are plenty of fish in the sea. I'm sure Qualkinbush and B&T will find another school district they can prey on.

M Theory said...

Even though I don't live in Pike, I'm coming to the fundraiser tomorrow night for Allison Maguire's school board campaign.

Is the fundraiser yours too? You guys can count on me for at least $100.

Paul K. Ogden said...

Yes it is mine too. Allison has done a better job of promoting it than I have.

Marycatherine Barton said...

Thanks for the reminder financial contributions will help Ogden and Macguire, help the movement for truth and justice. I know of members of the Council and of the Indiana legislature who have family members who benefit from construction paid for by taxpayers.

Had Enough Indy? said...

What legal recourse do the taxpayers of Pike have, given that a) the law is there to protect them from the deep pockets of Pike's school taxes and b) Qualkinbush isn't any more than an advisor who is trying to clear his client of charges of wrongdoing?