Neibarger denounces fishing expeditions, Ripstra wants city on record about private meetings, Goffinet sets date for hearing in Jasper Biomass complaint

Today Honorable Lucy Goffinet  in Perry County Circuit Court heard arguments from both sides of the Open Door Violations suit brought against the City of Jasper by Healthy Dubois County, Inc.

Attorney Steve Ripstra argued for the plaintiffs, Healthy Dubois County, Inc., in regards to alleged Open Door violations. Ripstra stated the city had been uncooperative in his efforts to gain access to any records concerning Executive Sessions that occurred in July of 2009 or any other Executive Sessions that involved potentially problematic negotiations with Jay Catasein.

Ripstra argues that these executive sessions are illegal under Indiana Public Access Laws if Jay Catasein was present or decisions were made during the meetings. An affidavit from Amy Breedlove states Catasein was seen in the building during one of the sessions while the public was locked out of the city hall.

[box]According to the Public Access Attorney, an executive session is a meeting from which the public is excluded, except for persons necessary to carry out business. The provisions allowing for executive sessions are narrowly construed against the agency. They are as follows:

1. Discussion of strategy with respect to initiation of litigation or litigation that is pending or has been threatened in writing (I.C. § 5-14-1.5-6.1(b)(2)(B))
2. To receive information about and interview prospective employees (I.C. § 5-14-1.5-6.1(b)(5))
3. To discuss a job performance evaluation (I.C. § 5-14-1.5-6.1(b)(9)

The governing body may not take final action (i.e., vote) in an executive session but may make decisions in the executive session.  See Baker v. Town of Middlebury, 753 N.E.2d 67 (Ind. Ct. App. 2001). [/box]

Essentially the plaintiffs argue that the City of Jasper was in violation of the state’s open door policy in regards to the decisions is made concerning the lease of the Jasper Power Plant to Twisted Oak, Inc.

Ripstra stated he informed the city of 19 dates he would be available to depose individuals in regards to the alleged open door violations all of September and October, however the City of Jasper refused to allow any depositions to occur and continually failed to provide any information regarding the executive sessions.

The city contests that no violations exist and it is their right to not provide information other than the memoranda. A memoranda of the meeting is required by state law and includes the following information:

1. Date, time and location of meeting
2. Members present and absent
3. The general substance of all matters, proposed, discussed, or decided
4. A record of all votes taken, by individual members if there is a roll

Ripstra states his clients feel the city has acted in a secretive manner concerning certain meetings and decisions. Ripsta has attempted to put a public official on the record in regards to the potential “minutes” of these executive sessions but the city has continued to stand in silence to the lawyer’s demands.

Attorney Greg Neibarger of Bingham McHale argued for the city. He stated that the plaintiff’s case was based around potential violations and they were conducting a “fishing expedition” to find the alleged open door violations.

He contended that the city acted within the Indiana code in all of the executive and public sessions and has adequately provided Mr. Ripstra with all the notices of public and executive sessions that have occurred concerning the lease of the power plant.

Calling upon the fact that Ripstra was unable to  point out any specific actions that violated the open door law Neibarger stated, “they are raising the scepter that something is improper” in hopes they will find something improper.

He cited the one complaint of open access that has been vetted. The complaint stated the Jasper Strassenfest festival hindered public access due to inaccessibility to handicap parking spaces near the City Hall, however, Joe Hoage, the Public Access Council, sided with the city and stated there were no violations. Additionally the individual that made the complaint did attend the vote.

Neibarger further stated one executive session from July 19, 2009 included in the motion from the plaintiff never actually occurred. He called into question the validity of the affidavit on the basis of the source of the information concerning the meeting.

According to the affidavit given by Barbare Schue-Wendt, she conducted a Google search and found a link to the minutes to an executive session that occurred in regards to the power plant lease, but those internet records no longer exist and the city denies a meeting took place.

In an original response to the complaint from Healthy Dubois County the city listed and vetted the executive session that occurred on this date. Now they stand that the meeting never took place.

Judge Goffinet ordered the city to allow Ripstra discovery to find any violations that may have occurred during these executive sessions. He will be able to depose individuals from the city to determine if information exists in regards to the executive sessions and who was present during the executive sessions.

Healthy Dubois County Inc., stated they were happy with the outcome and dismayed that the media had not accounted for the city’s lack of cooperation in the discovery conducted by their attorney.

The hearing is scheduled for December 19 and Judge Goffinet has allowed for three days in the schedule for the hearing.