Monday, November 10, 2014

Westfield Violates Open Door Law By Conducting Committee Meetings In Private

When the Westfield city council rammed approval of the controversial $53 million public funding of a sports arena last month, it was the first public meeting at which the proposal was discussed. When the plan was announced by Mayor Andy Cook in June, he lied to the public and claimed it was being built without public funding by Holladay Properties. The final proposal in fact was essentially a build, operate and transfer agreement under which the City of Westfield will lease the facility being built by Holladay properties for up to 25 years, bear all expenses related to the arena, including ongoing maintenance and operating expenses, and take ownership of the improvements to the property at the end of the 25-year lease if it does not exercise its right to purchase the property sooner.

Indiana law is very clear city officials should have conducted a public bidding process known as a Request for Proposal ("RFP") whereby the RFP is made available to the public and companies like Holladay Properties are afforded an opportunity to compete to build a public facility. Westfield ignored that law by negotiating in secret with Holladay Properties. It also turns out the council's finance committee met in secret several times to discuss the proposal before voting on it at last month's regular council meeting, a clear violation of Indiana's Open Door law. I brought the former violation to the Star's Chris Sikich's attention. Despite pointing him to the statutes, he claimed he couldn't conclude the law was violated. The Star has similarly refused to question the Ballard administration's violation of that same law for the RFP process it is undertaking for the nearly half billion dollar criminal justice center it wants to rely upon a private developer to build at the site of the former GM Stamping Plant, even though the current law exists largely because of reporting and editorializing by the Star nearly twenty years ago when the Public-Private Agreements Act was being enacted by the General Assembly.

Sikich took the issue of the Open Door violation by Westfield city officials to the Public Access Counselor but not the RFP issue. Public Access Counselor Luke Britt recites the requirement of Indiana's Open Door Law requiring notice to be published at least 48 hours in advance of a public meeting. Westfield's long-time attorney is Brian Zaiger, a partner at Krieg DeVault, who claimed no public notice of committee meetings are required because the council never formally created the committees and no final action was taken on matters which were discussed at committee meeting. In case you haven't figured it out yet, the City publishes notices for none of its committee meetings, not just the finance committee meetings at which it discussed the sweetheart deal with Holladay Properties. Here's what Sikich is reporting today in a story titled, "Do Westfield meetings violate open door law?:
. . . Communities can face stiff penalties for violating the open door law, including having decisions overturned in court.
Open door advocates say the public has a right to know what elected officials are discussing during such meetings. By the time proposals leave the committee and reach the full council, decisions could have been made — in effect if not by vote.
Many communities do post notices of council meetings, including neighboring Carmel and Indianapolis. Britt, however, thinks cities and towns across the state probably violate the law simply because no one is watching.
“It happens all the time,” Britt said. “They don’t understand the law.”
Longtime Westfield City Attorney Brian Zaiger disagrees. He said no formal action created Westfield’s committees. They don’t include a majority of council members. And they take no final actions or votes.
Britt, though, said Indiana’s open door laws are written broadly to ensure that such committees qualify as public agencies . . . 
Despite the Public Access Counselor's opinion the City of Westfield's policy of not posting notice of committee meetings violates the state's Open Door Law, Council President Jim Ake tells Sikich he has no plans to start doing so unless his high-paid outside legal counsel advises him to do otherwise. Just last week the IBJ received an advisory opinion from the Public Access Counselor in which he concluded the City of Indianapolis violated state law by refusing to make public the RFP document, including all draft versions, upon which it is relying to competitively bid its new criminal justice center. This is a continuation of a growing problem of big law firms in Indiana providing cover to governmental entities to flaunt state laws.


Chris Sikich said...

I wrote about the ethics of the RFP process. I gave you an opportunity to make a specific argument that the RFP process had been legally violated and you pointed to the state statute generically. I asked you a second time and you made another generic statement. Make your legal argument. I'm interested.
Chris Sikich

Gary R. Welsh said...

Chris, Firstly, the statute to which I referred you expressly requires an RFP. Secondly, I've written exhaustively on this topic. You could have read my prior entries on this topic (like here, or you could have picked up the phone and called me. It's not like this topic has not been in the news a lot given the IBJ's legal wrangling with the Ballard administration to cough up the criminal justice center RFP.

Flogger said...

“It happens all the time,” Britt said. “They don’t understand the law.”

I would say rubbish to this. The City would have an Attorney that as a job expectation should know the Law or research it.

As far Mr. Skitch's comments, the JOB of a Journalist is to perform the research, either himself or tap into one of The Star's or Gannet's Attorneys to do the leg work.

Meetings that the Public is not aware of are basically a closed meeting. No one shows up per the article - No one ever has, though, possibly because no notice is provided anywhere. The city’s website doesn’t include any information about council committees — even to note they exist. The dates, times and locations aren’t posted publicly.

The old philosophical, question is - If a tree falls in a forest and no one is there to hear it - does it make a sound??

So if you have Public Meeting and the Public is not informed - Is it a Legal Meeting??

Sir Hailstone said...

I'll tell you how Westfield "notifies" you of the public meetings - it's in this junk mail flyer we get every month and in the fold of 2nd or 3rd page are the scheduled full City Council meetings. Granted the council here is only 6 people. I haven't figured out which bar they go to for the "pre-meeting discussions" yet.

Gary R. Welsh said...

Sikich appropriately looked into the issue of the public meeting notice requirement and confirmed the City had broken that law, Flogger; it was the RFP notice requirement which I pointed out the City also ignored just like the City of Indianapolis concerning its criminal justice center project.