Monday, October 11, 2010

Capital Improvement Board Declares Itself Above the Law

A week or so ago, neighborhood activist Pat Andrews suggested to me that the interlocal agreement between the the Capital Improvement Board and the Metropolitan Development Commission to funnel $8 million in taxpayer money to the ICVA to replace the the CIB cut in the ICVA funding (at the same time the CIB agreed to pay $10 million to the Pacers) was not legal. She sent me the statutes and pointed out that the CIB's fiscal body was the City-County Council necessitating council approval of the interlocal agreement.

While obviously the Council is the CIB's fiscal body, I thought the CIB's legal counsel had another argument for the legality of what the CIB and MDC were doing. Never in my wildest imagination did I ever forsee the CIB making the ridiculous argument that the CIB is its own fiscal body. Was I ever wrong. WRTV reports:
The Marion County Alliance of Neighborhood Associations is questioning the legality of a deal that will tap into $8 million in downtown property taxes.

In an unprecedented move, the Metropolitan Development Commission and the Capital Improvement Board approved the agreement on Sept. 1, intended to aid in the city's promotion efforts, 6News' Kara Kenney reported.

But members of McANA said Monday they believe the city is legally required to get approval from the City-County Council for such a deal, citing Indiana Code 36-1-7-4 and 36-1-7-11.5.

"We question whether the law is being correctly interpreted," said group President Cathy Burton, who wrote letters to council members expressing concern. "I hope they'll listen and will hear us and step back and look a little more closely at how they're making the decision."

Burton said McANA read the law to mean that the City-County Council is the CIB's fiscal body, meaning members would have to approve the deal.

But representatives with the CIB said their fiscal body is the group's own board, despite the fact that the City-County Council has to sign off on the organization's budget.

"We followed what is required and we had very open discussions at the CIB board and MDC, which was what was required for this transaction," said CIB President Ann Lathrop. "Before we entered into this transaction, we received two legal opinions from two reputable law firms in town."

Deron Kintner with the Bond Bank, the debt-issuing entity for the city, told 6News that he believes the decision was legal and that he does not think the city will be susceptible to lawsuits.
To see the rest of the article, click here.

Gee, I wonder what two "reputable law firms in town" would have given such an absurd legal opinion? You can bet that Barnes & Thornburg, which represents the Pacers and has a stake in the outcome of this dispute, is one of those firms. B&T is the same firm that grossly misrepresented a Court of Appeals case (I believe deliberately) to the Pike Township School Board so the administration would have ammunition against teachers in a dispute over the calendar. I would bet the other law firm is Bingham McHale which has provided legal representation to the CIB, and also has a stake in the outcome of this dispute

Lay people do not seem to understand that we attorneys are advocates. When an attorney is representing a client, you can't expect that attorney will provide to a third party an objective, unbiased opinion about the law affecting the lawyer's client. No, you're going to get an opinion that favors the client. That's what attorneys do.

The Council approves the CIB's budget. It is clearly the fiscal body under IC 36-1-2-6. It should be noted that in the Pacer agreement to give the team $10 million per year, the CIB specifically conditioned the agreement on the annual appropriation being approved by "the appropriate fiscal body." (See page 2 of Amended Agreement.) If the CIB is its own fiscal body, as it now claims, there is no reason to include that provision.

Advance Indiana notes in a headline in conjunction with its excellent take on the subject, that the "Rule of Law Does Not Apply to the CIB." Yep, that's about it. City officials and the CIB quite simply feel they are above the law. When is the Council going to stand up for itself against an administration which seems intent in taking away its powers?


Gary R. Welsh said...

Toby McClamroch of Bingham-McHale is the legal counsel for the CIB. He doesn't know what the hell he is doing.

dcrutch said...

It would take a more lawful, non-corrupt council to stand-up to the CIB. Council members that would do things like recuse themselves when there's a conflict of interest with the law firm the work for.

I'm voting for whoever is running against my councilman, Ryan Vaughn. I hope it's a Libertarian, but I'll vote for somebody else period.

This city has gone stark raving nuts when it comes to the influence of big money for projects, while our infrastructure is supposed to wait for the glorious tax revenue in the golden horizon.

I'm not hearing the word "No" often enough. I'm not believing we can afford all these projects and spend all this money.

Somebody please explain how all this is affordable. Right now, I'm not buying it.

Paul K. Ogden said...

Thanks, AI, I need to change that. I always get Bingham McHale and Bose McKinney mixed up.

Had Enough Indy? said...

The comment that the Council is not the fiscal body for the CIB is Alice down the rabbit hole - for sure.

The Lathrop, Kintner, and Vane, all need an emergency meeting with Hirons to figure out what the appropriate 'selling points' are.

Citizen Kane said...

Anyone see the last MDC hearing when Kitner tried to avoid speaking (The Artsgarden skyway connection). Then when he did speak, he lied - at least until he finally had to tell the truth.

Had Enough Indy? said...

For whatever reason, Kintner, who is not actually employed by the City, has become one of the Administration's go-to guys. It seems that when I happen to catch him, Robert Vane is within ventriloquist range.

Gary R. Welsh said...

Kitner is just biding time until he gets his pay off job at City Securities or one of the other financial firms with whom the city does business just like his predecessors, Kevin Taylor and John Dillon.