Healthy Dubois County puts forth a hand of compromise but city balks

The Jasper Utility Service Board and the Jasper Common Council joined in a special meeting Friday morning to decide on a settlement offer from Healthy Dubois County in regards to the open door lawsuit.

The litigation has hung over the proposed power plant conversion project since the USB and common council approved moving forward with a lease with Jay Catasein of Twisted Oak to convert the coal-fired power plant into a biomass power plant.

The city’s counsel, Greg Neibarger of Bingham Greenebaum Doll LLP, received the settlement offer shortly after the new year, according the City Attorney Renee Kabrick.

The council and utility service board met in executive session Wednesday morning to discuss the settlement offer which had a response date of January 10, 2014.

Kabrick read aloud from the settlement offer during the meeting this morning. In it, Too Keller, representing Healthy Dubois County, INC., stated the group recognized that too resolve the litigation both sides would need to engage in reasonable but meanigful compromise. To this end, HDC stated they felt it would be in the public interest to take the first step in that compromise. In doing so, they stated they were willing to drop five of the seven settlement terms from the July 24, 2013 settlement offer.

Healthy Dubois County offered to removed the requirement that the city admit to violating the open door law; publicly declare the biomass incineration project to be abandoned; state publicly that HDC and its litigation has not been a detriment to the city; the city would acknowledge that it underestimated the health effects from the project; and that although HDC preferred the settlement to be an entirely public agreement with no confidentiality, they were willing to negotiate regarding aspects of the agreement that the city would prefer remain confidential.

The settlement then asked that the city join HDC in dismissing all claims by both parties with prejudice; to never be visited again.

HDC also asked that the city pay or arrange payment of HDC’s attorney’s fees amounting to about $240,000.

The settlement offer pointed out this was less than half of the amount the city had paid for the litigation to date. They stated that the request for fees is reasonable due to the court of appeals finding that “HDC has demonstrated that it was diligent in pursuing discovery, but was thwarted for months by Jasper’s refusal to cooperate.”

The city did recently provide over 13,000 pages of documents in discovery but according to HDC, those still lack certain key documents that could increase the litigation costs for both sides now or on appeal.

HDC also offered to assist the city in any effort to find demolition funds, including procuring grants, to dismantle the power plant.

The letter further states that this offer is in the city’s interest due to their stance that depositions of former-city attorney Sandy Hemmerlein and counsel Bill Kaiser would likely result in evidence of open door law violations by the city.

They also stated that removing the litigation would, according to city statements, remove the only remaining obstacle to “giving the project a fair chance to succeed.”

The combined council and board unanimously voted to reject the offer from Healthy Dubois County, stating they would not approve any settlement offer in which any money was paid directly to Healthy Dubois County.

City Attorney Renee Kabrick stated the two parties were still amicable to further negotiations in regards to a potential settlement agreement and asked for permission to meet with Too Keller to continue negotians. She stated she expected to reach some agreement by Wednesday of next week and asked that the two city entities determine what day and time she could schedule an executive session to discuss any possible settlement.

“We gave the attorneys authority to continue the negotiations, and we will see where that goes,” Utility Service Board Chairman Wayne Schuetter stated. “We reject their offer today, but we are still amicable to some kind of a settlement.”

The litigation was brought against the city and the utility service board in August of 2011.