Sunday, October 04, 2009

Ackles Paid Double His Salary In Settlement With City

The City-County Council voted to withhold the pay of former Marion County Coroner Kenneth Ackles (D) during his last year in office because of a 2007 state law that required county coroners to pass a state-mandated certification exam for coroners and their deputies as a condition to receiving their pay. Ackles failed that exam. At the time, I commented that I believed the law as applied to Ackles was unconstitutional because it imposed a condition on his pay that did not exist when he was elected to that office in 2007; if the law had been adopted prior to his election, then I don't think it would have been a problem. Fellow blogger and attorney Paul Ogden sued the county on behalf of Ackles to recover his lost wages under Indiana's Wage Payment law, which allows successful litigants to recover treble damages. Recently, the City's corporation counsel's office quietly entered into a settlement agreement with Ackles. The Star's "Behind Closed Doors" column reveals that Ackles received double his salary plus attorney's fees:

Kenneth Ackles, an embattled one-term Democrat who left office at the end of 2008, settled his lawsuit against the city quietly, signing an agreement in May.

Ackles received twice the wages withheld over nine months in 2008 -- totaling nearly $60,000, minus taxes and other withholdings, making for $25,000 in net pay, said Jon Mayes, the city's chief litigation counsel. The city also paid $12,500 to cover Ackles' attorney's fees.

Had the city lost in state court, Indiana's Wage Payment Statute would have required double wages and attorney's fees anyway. City officials decided not to fight.
"Rather than litigate and risk paying significant attorneys fees, the matter was settled," said Robert Vane, deputy chief of staff for Mayor Greg Ballard. "We think that was the lowest cost resolution for the taxpayers."

The council's Republican majority and four Democrats, acting on news reports that Ackles had failed to pass three sections of a newly required 10-part exam, directed the county auditor to withhold Ackles' pay in March 2008.

Ackles, paid an annual $38,501 salary for part-time duties, argued the new requirement -- mandated by a 2007 state law -- couldn't be applied retroactively to coroners in office.

"Once a person's doing a job, you've got to pay him," Paul Ogden, one of his attorneys, said last week. "That's just how the law is."
The irony here is that the City-County Council action withholding Ackles' pay was pushed by Councilor Ryan Vaughn (R), who chairs the Public Safety Committee. His law firm, Barnes & Thornburg, has been paid hundreds of thousands of dollars to defend Ackles and his office in several racial discrimination lawsuits. Two of those lawsuits were settled for $100,000 about the same time the county settled Ackles' wage payment claim. Another lawsuit brought by the former forensic pathologists for the office is still pending in federal district court. As I've previously disclosed, I represent the plaintiffs in those lawsuits against the coroner's office. An EEOC administrative law judge also awarded former Chief Deputy Coroner John Linehan more than $400,000 in a separate claim he brought against the office, which the EEOC in Washington, D.C. affirmed on appeal. The City's corporation counsel's office has said it will appeal that decision to the Seventh Circuit Court of Appeals. Linehan also has another pending action against the coroner's office for defamation, resulting from Ackles' false accusation claiming that Linehan had engaged in ghost employment while employed at the coroner's office.

As outrageous as it may seem that the county had to pay Ackles double his withheld pay and cover his attorney's fees, that's simply what the law requires in this situation when you are not paid by your employer what is due you in wages. The City-County Council should have never retroactively applied that law to Ackles. The proper action would have been to pressure Ackles to resign from the office, whose four-year tenure has proven extremely costly to taxpayers. I've been extremely disappointed at the Republican-controlled council for not scrutinizing his budget. His management decisions, including the cancellation of the former forensic pathology contract and hiring nearly double the number of full-time staff, have resulted in a more than 50% increase in the coroner's budget. Republicans on the council, including Vaughn, approved his budgets without questioning his actions. Vaughn as Public Safety Committee Chairman should have been focused on reducing Ackles' budget and not unconstitutionally withholding his pay. His and other councilors failure to perform proper oversight has cost taxpayers dearly. Ackles' successor, Dr. Frank Lloyd, has done nothing to undo the costly changes to the office implemented by Ackles.

9 comments:

Paul K. Ogden said...

Gary,

We had three legal arguments:

1) Indiana Wage Claim Act - This statute is very strict. It requires that an employer pay an employee his wages within a period of time or there will be strict consequences, namely the employer will be required to pay the employee triple his wages and cover attorney's fees.

2) Law Not Intended to Apply Retroactively - if you read the statute half way closely, it was clearly never intended to appy retroactively to coroners already in office. In fact the statute talks about that coroners needed to pass the test within six months of taking office. Mr. Ackles had already taken office two years earlier when he was elected. I think it is pretty clear fromt he language that the legislature intened a prospective application of the rule to coroners getting elected down the road.

3) Cornorer Test Law Was Unconstitutional - The office of coroner is a constitutional office, with the qualifications for that office in the Indiana Constitution. There are cases out there that say if you change or add to the qualifications for a constitutional office (as opposed to one created by statute) it takes a constitutional amendment and can't be done by a simple statute.

#1 was a really, really strong argument with #2 fairly close behind. #3 was at the least arguable - there is case law on both sides of the issue. I doubt if we would have ever needed to get to that argument though because of #1 and #2.

Bottom line, here we simply had bad legal advice tainted by partisan politics. I have preached on this before. Council members need to have OBJECTIVE legal advice, untainted by politics. They're not getting that now from Elrod (the council's attorney) or from City Legal. Certainly Vaughn, who is an attorney, had a political agenda that caused him to overlook the law.

I see the same thing happening with redistricting. The $580,000 expenditure is being sold as needed so they can redistrict using the 2010 census data for the 2011 election. They legally can't do that, yet they plod ahead anyway.

Indy4U2C said...

"Bones" Ackles is a disgrace! This incompetent racist boob, cost us taxpayers big time...and why hasn't Carl Brizzi indicted him???

artfuggins said...

I was no fan of Ackles but I wonder who is laughing now.

Advance Indiana said...

Paul, Again, I don't think you can lay it at Elrod's doorstep. He didn't make the decision; the council did. I also went back and reviewed his comments on redistricting. He said the same thing I've said. Yes, the council can redistrict any time as long as it doesn't do it in the 1-year window prior to an election; however, he said the statute mandating a redistricting could come into play again if the redistricting happens in 2010. I don't think that was the answer Ryan Vaughn wanted to hear when he called on him to explain. The Democrats pounced on that explanation to point up the waste in doing a redistricting now. What I couldn't understand is why Ed Coleman voted with the Rs on the Ds amendment to move the money out of redistricting and into the park's budget.

Paul K. Ogden said...

AI,

I didn't hear Elrod's explanation quite that way. I thought he simply said that you can redistrict any time you want except right before an election. I took that "right before" to be less than the one year window. I didn't think Elrod's explanation gave the D's anything to pounce and, in fact, supported Vaughn, but I could be wrong. In fact, one of the D councilors suggested that in response to the amendment, that paying for Elrod's legal advice was a waste of money.

I think you're right though that Elrod is probably just carrying the political party water for Vaughn and gang.

As far as Coleman's vote, that $290,000 for redistricting in 2010 is a complete waste of taxpayer money. I agree with Coleman that I'd much rather see the money spent on parks than to go to some politically connected law firm (i.e. Barnes & Thornburg) to defend early redistricting.

Paul K. Ogden said...

Indy,

Bottom line is that they still legally had to pay him. There was no excuse for not following the law.

Advance Indiana said...

Paul, You misunderstood. Coleman voted with the Rs to keep the money allocated for redistricting. He opposed the Democratic amendment to transfer the money to parks. You also need to go back and listen to what Elrod said again. It was difficult to hear him.

Indy4U2C said...

Paul:

If there's no excuse for not following the law, then why doesn't "Bones" Ackles pay the court judgment for discrimination against him???

Right is right, Paul, and the taxpayers did not discriminate against people under color of elected office, "Bones" did it...he should pay for his official misconduct...and while we're at it, whatever happened to all that county property that turned up missing on "Bones" watch? Shouldn't he be held legally accountable?

Paul K. Ogden said...

Indy, the salary issue has absolutely nothing to do with the discrimination issue. I don't see the connection you're trying to make but yes the law should be followed in every instance.

AI, you're right that Elrod was a little difficult to hear. When he started talking about it, he mumbled a bit. I got the impression he was kind of uncomfortable with the question tossed to him by Vaughn. I did hear it in person and again on video. I thought my recollection was right, but I guess one could interpret it a different way.

Sorry, I thought Coleman voted for the amendment to move the redistricting money to the parks.