Thursday, May 21, 2015

Council's Attorney Says Vision Fleet Contract Void If Not Voidable As Committee Votes To Initiate Lawsuit Against Ballard Administration

The Public Works Committee of the Indianapolis City-County Council voted tonight to introduce a resolution at the next council meeting on June 8 authorizing the filing of a lawsuit on behalf of the council to have the controversial 7-year, $32 million contract the Ballard administration illegally entered into with Vision Fleet last year declared void. The committee's vote came after the council's attorney, Fred Biesecker, laid out his legal analysis showing that at least five laws were broken by the city when it executed the initial lease agreement in February 2014, as well as the subsequent Master Fleet Agreement it signed with the company four months later in June, which was backdated to give the appearance it had been executed last February.

For the first time we learned at tonight's meeting that it was a memorandum of understanding Mayor Greg Ballard himself signed in August, 2013, which singled out Vision Fleet to be the exclusive, sole source provider of a fleet of 425 electric and hybrid cars. In a scathing legal analysis of the subsequent actions taken by city legal to carry out the agreement broadly set out in the August 2013 memorandum of understanding, Biesecker described city attorneys disregarding basic legal principles a first-year law student would understand.

What Biesecker described was an initial agreement executed by the parties in February 2014 that was clearly described as a lease/purchase agreement on its face. Under the state's procurement law, the renting and leasing of goods and supplies are expressly subject to competitive bidding requirements and cars clearly involve the delivery of goods or supplies. The administration insists a later rendition of the agreement clearly makes it an agreement for services, which is not subject to the state's competitive bidding requirements. Biesecker pointed to a state law expressly providing that a services contract cannot involve the delivery of supplies unless the supplies are merely incidental to the performance of the contract. Biesecker could not understand how anyone could argue with a straight face that the fleet of cars is incidental to services being provided by Vision Fleet concerning fleet management.

A city ordinance required the contract approval process to go through OFM, not the Department of Public Works, followed by the approval of the lease agreement by the Board of Public Works, neither of which occurred. Under state law, lease/purchase agreements must expressly provide that they are subject to available annual appropriations and must be subject to renewal annually if it extends beyond the term of one year. The city's lease agreement with Vision Fleet says the exact opposite, binding the city to make payments to Vision Fleet through its term of at least seven years. Competitive bidding procedures are mandated for all contracts in excess of $150,000 instead of the no-bid, sole-source procedure city legal utilized. In no event, can a contract for supplies be made for a period of more than four years. Vision Fleet's lease agreement is for at least seven years for the hybrid vehicles and eight years for the electric vehicles.

Biesecker told council members he believed the administration figured out in May 2014 that its February 2014 lease agreement was clearly illegal on its face. Rather than void the agreement and re-do the contract approval process in accordance with state and local laws, city legal rewrote the agreement as a Fleet Management Agreement through gymnastic linguistics to make it appear to be a services agreement rather than a lease agreement. The second agreement, which was electronically executed on June 12, 2014 by the parties, was backdated to make it appear that it was originally executed in February 2014. It made no reference to the original contract, and it did not state that it superseded the originally-signed lease agreement, which led to the confusion over which agreement governed the terms of the vehicle lease agreement.

Mayor Ballard did not publicly announced the Vision Fleet agreement until last October. The council, which had heard nothing of the proposal prior to that announcement, immediately requested a copy of the contract. The administration did not provide a copy of the contract until December, and that copy was so heavily-redacted the council's attorney was able to ascertain little about it. Through negotiations, the administration eventually agreed to release an non-redacted version of the lease only after the council's attorney agreed to sign a non-disclosure agreement since it claimed the redacted information involved proprietary and/or trade secrets protected from public disclosure under state law. After the firestorm created over the administration's refusal to release the full version of the lease agreement, Vision Fleet sent the entire agreement to council members, but according to Biesecker, the contract has substituted the signature page from the February 2014 lease agreement as the signature page for the Master Fleet Agreement signed in June.

Biesecker told council members he believed there was a strong legal argument to be made that the contract that exists today with Vision Fleet is void on its face because of the legal deficiencies, if not a voidable agreement. He believes both versions of the contract contained the same fatal legal flaws regardless of the terminology used to gloss over the glaring legal omissions made in the original contract execution. Ballard's cake boy, David Rosenberg, addressed the council at that point to criticize Biesecker for putting Vision Fleet's reputation at risk as it sought to enter into contracts with other cities and organizations around the country. Council members quickly disabused Rosenberg of the notion the criticism was directed at Vision Fleet instead of the administration and, in particular, the city attorneys responsible for the legal blunders. The sole Republican council member present at the committee meeting, Janice McHenry, dissented from the Democratic members' vote to move forward in recommending the initiation of a lawsuit against the administration to void the lease agreement. She was concerned litigation would be wasting taxpayer dollars as if the $32 million contract itself wasn't a waste of taxpayer dollars.

Speaking of our law-breaking mayor, a little birdie tells Advance Indiana his honor met with DPS Director Troy Riggs, Deputy Director Valerie Washington and city attorneys today to discuss the Vision Fleet contract. In no uncertain terms, Ballard made it clear he wasn't about to terminate the illegal contract and that if anyone didn't agree with his position, they needed to seek employment elsewhere. It's like I told you, Ballard is Rod Blagojevich on steroids.


Anonymous said...

...because Ballard was the authorizing authority of the illegal lease, he should be held personally liable to recoup all expenditures the city made on this illegal endeavor. I hope that recovery on behalf of The People of Indianapolis is included in the law suit.

Anonymous said...

Where does a disgusted Marion County grass roots Republican begin to express revulsion on so many levels with Greg Ballard [AND the MCRCC) in this Vision Fleet swamp of corruption and an illegal contract by the failure we call mayor? Self-proved pathological liar and possibly seriously psychologically disordered Greg Ballard wants voters to engage in a suspension of disbelief with his illegal Vision Fleet deal complete with career hacks like Mark Miles. Enough is enough; it is not only time for Greg Ballard to go (from office to jail) but for the wholesale removal of Kyle Walker, wife Jennifer Hallowell Walker, Bryce Carpenter, Samantha DeWester, all township “R” chairs and VC’s, every “R” ghost PC, Mike McQuillen, the strong pervasive sub rosa influence still wielded by corrupt attorney David Brooks, Tom John, Bob Grand, and Jeff Cardwell. Many of the aforementioned should probably be facing federal indictments.

Ballard signs an illegal contract and as the truth emerges and the threat of a voided crony deal becomes possible whines to his minions like Scarlett O’Hara that, by God, tomorrow is another day and his will shall be done. Ballard can’t even man up to take responsibility because a real man would never have cowered and hid under his skirts by blaming his problems on the incompetence of his own staff. Why am I reminded of SNL’s Arnold and the girly man skits whenever I see or hear or read of ex-soldier Greg Ballard?

And Janice McHenry? Really?? Seriously, lady?!? You who hold annual Lincoln Day fundraisers for yourself while violating every political philosophy espoused by the great man from Illinois who saved the Union and kept a nation together and who continued the ground work for the freeing of the slaves that was laid in the writing of the U.S. Constitution? This long-maned gal is another total embarrassment to the electorate and to the philosophy of republican (small “r” intentional) government. Has there ever in her too long Council "career" been an insider pay-to-play deal she did not like?

THIS Republican commenter calmly but eagerly anticipates the day Christine Scales leads this City as Mayor. I will be at the victory night celebration with the loudest cheering possible.

Anonymous said...

Can't Christine still file to run for mayor as an independent?

frustrated public servant said...

And lets not forget that Township Government needs to be abolished.