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HomeMy WebLinkAbout03-19-1990COUNCIL PROCEEDINGS OF THE COMMON COUNCIL OF THE CITY OF JEFFERSONVILLE, INDIANA MARCH 19, 1990 The Common Council of the City of Jeffersonville, Indiana met in regular session in Council Chambers, in the City-County Building in Jeffersonvitle, Indiana on the 19th day of March 1990, at 7:30 o'clock P.M. The meeting was called to order by Mayor Dale Orem and C. Richard Spencer Jr. at the desk. Mayor Orem asked all those present to stand and pledge allegiance to the flag. The roll was called and those present were: Councilmen Caldwell, Carter, Grooms, Harrod, Perkins, Williams, and Waiz. Absent: None. Mayor Orem presented the minutes of the meetings of February 17, and 22, 1990 for consideration by the Council. Councilperson Harrod made the motion to approve the minutes as presented, seconded by Councilperson Carter and carried unanimously. Mayor Orem presented the register of claims for consideration by the Council. Attorney Filer presented three claims that had been discussed regarding litigation, and Clerk and Treasurer Spencer presented and explained several additional claims. Following discussion, Councilperson Harrod made the motion to approve the claims as presented as well as the addltionals, Waiz and carried unanimously. Ordinance No. 90-OR-11, Portions of Section I Of Ordinance No. seconded by Council President An Ordinance Amending Certain 89-OR-42 (Salary Ordinance), was presented for the consideration of the Council. This Ordinance will allow for a full-time employee at the Animal Shelter. Shelter Manager Jan Wheatley-Dobler explained the need. Following all discussion, Councilperson Harrod made the motion to suspend the rules for Ordinance No. 90-OR-ii, seconded by Councilperson Carter and carried unanimously. Councilperson Harrod made the motion to pass Ordinance No. 90-OR-11 on all three readings, seconded by Councilperson Carter, passing with the following roll call vote: Ayes: Councilpersons Waiz, Perkins, Caldwell, Grooms, Carter, Williams, and Harrod. Nays: None. Mayor Orem introduced Ordinance Authorizing The City Of PAGE 2 MARCH 19, 1990 Ordinance No. 90-OR-12, A Special Jeffersonville To Issue Its "Economic Development Mortgage Revenue Refunding Bonds (Jeffersonville Public Warehouse, Inc., Project), Series 1990" In The Principal Amount Of Four Million Three Hundred Seventy Thousand Dollars ($4,370,000), And Approving And Authorizing Other Actions In Respect Thereto. Mr. Robert Lanum, Attorney representing Jeffersonville Public Warehouse explained the reasons for this Ordinance saying there would be no liability on the part of the City. Following all questions and answers, Counoilperson Perkins made the motion to suspend the rules for Ordinance No. 90-OR-12, seconded by Councilperson Harrod, passing unanimously. Councilperson Perkins made the motion to pass Ordinance No. 90-OR-12 on all three readings, seconded by Councilperson Grooms, passing unanimously. Councilperson Carter made the motion to appoint Fred Hale to the Economic Development Commission Board, seconded by Councilperson Harrod and carried unanimously. Mayor Orem presented Resolution No. 90-R-8, A Resolution Authorizing Revision Of Certain Terms Of A Ground Lease Between The City Of Jeffersonville, Indiana, And Hughes Group, Inc. Hughes Group, Inc. Representative Shotwell explained the need for the extension. Hughes Group, Inc. is currently taking bids for the grass cutting of the riverbank. There followed discussion regarding the debris clean-up. Following all discussion, Councilperson Grooms made the motion to pass Resolution No. 90-R-8 with the addition of "and the City Council" at the end of paragraph 3 on the second page, seconded by Councilperson Williams. Councilperson Carter explained he will abstain from this vote due to a conflict of interest opinion he has received from an attorney. Councilperson Perkins asked Attorney Filer if he felt any other Council members would have a conflict of interest in this case. Attorney Fifer stated he does not feel any Council member has a conflict of interest on this matter. Councilperson Perkins presented a legal opinion on this subject from Attorney Michael T. Forsee, asking it be included with the minutes. Resolution No. 90-R-8 passed with the following roll call vote: PAGE 3 MARCH 19, ~990 Ayes: Councilpersons Waiz, Caldwell, Williams, Nays: Councilpersons Perkins, and Harrod. Abstain: Councilperson Carter. Councilperson Williams introduced Ordinance No. Ordinance Rezoning Certain Property From R-l, Residential, Business (908 Nachand Lane) for consideration by and Grooms. 90-OR-15, An To B-l, Local the Council. Councilperson Ordinance, however he does not feel Commission. Following the checking Councilperson Harrod made the motion for further action by the Plan the next meeting, seconded unanimously. Ordinance No. it has properly passed of the Plan Commission to table Ordinance No. Perkins explained he would be willing to approve this the Plan minutes, 90-0R-15 Commission in anticipation of passage at by Councilperson Carter and carried Funds Within The Same 90-OR-13, An Ordinance Transferring Certain Department was presented and discussed. Councilperson Carter made the motion to suspend the rules for Ordinance No. 90-OR-13, seconded by Councilperson Waiz and carried unanimously. Councilperson Carter made the motion to pass Ordinance No. 90-OR-13 on all three readings, seconded by Councilperson Waiz, passing with the following roll call vote: Ayes: Councilpersons Carter, Harrod, and Grooms. Nays: None. Mayor Orem introduced Resolution No. Approving Appropriation Intent Of Fund Monies Among City Departments. Perkins, Waiz, Caldwell, Williams, 90-R-9, A Resolution to show intent, not permission. pass Resolution No. 90-R-9, unanimously carried. Councilperson Grooms made the motion to seconded by Council President Waiz and Mayor Orem introduced Resolution No. 90-R-10, A Resolution Designating Certain Areas Within The City Of Jeffersonville, Indiana, As "Economic Revitalization Areas". Attorney Filer explained the approval of any "Economic Revitalization Area" does not approve tax abatement. Following discussion, Councilperson Carter made the motion to approve Resolution No. 90-R-10, seconded by Councilperson Grooms and carried 1990 Cumulative Capital Development The reason for this Resolution is PAGE 4 MARCH 19, 1990 with a vote of 6-1. Councilperson Perkins voted against the Resolution. Mayor Orem introduced Resolution No. 90-R-11, A Resolution Designating Certain Areas Within The City Of Jeffersonville, "Economic Revitalizaiton Areas". Councilperson Grooms made to pass Resolution No. 90-R-11, seconded passing with a unanimous vote Mayor Orem presented Ordinance No. Indiana, As the motion by Councilperson Harrod, 90-0R-14, An Ordinance Amending Ordinance No. 86-0R-31 And Section 50.61 Of The Jeffersonville City Code Establishing Sewage User Fees. Mayor Orem explained this is a basic 5% increase in rates except for the minimum. Councilperson Perkins inquired as to the money on hand in the fund and upon being informed it was approximately $1,000,000 questioned the need for an increase at this time. Mayor Orem explained there are many expenses to be met before the building of a new plant and the issuing of bonds and this raise will help take the "sting" out when the new bonds are obtained. Following further disucsion, Councilperson Grooms made the motion to suspend the rules for Ordinance No. 90-0R-14, seconded by Councilperson Harrod and carried unanimously. Councilperson Grooms. made the motion to pass Ordinance No. 90-OR-14 on all three readings, seconded by Councilperson Harrod, passing with the following roll call vote: Ayes: Councilpersons Grooms, Harrod, Carter, Williams, Caldwell, and Waiz. Nays: Councilperson Perkins. Councilperson Harrod called attention to the information distributed from Waldrip Construction Company, Inc., General Contractors for Fire Station No. 3. Building Commissioner Scales answered questions regarding the delays in the project and explained the need for the use of shale in the front driveway. It was the general opinion to leave the back driveway alone for the time and to concentrate on finishing the building. Following all discussion, Councilperson Perkins made the motion to approve up to $5,000 above the contract price for shale and excavation in the back driveway, seconded by Councilperson Caldwell and carried unanimously. Following a discussion of concrete versus asphalt, a vote of 4-3 favoring asphalt was taken. PAGE 5 MARCH 19, ~990 Councilperson Grooms announced the Convention Center Committee will meet this Thursday, March 22, 1990. He also inquired if the opinion from Attorney Forsee presented earlier in the meeting by Councilperson Perkins will be billed to the Council. Councilperson Perkins believes this to be true. An interested citizens in the audience asked for clarification of what deadline the Hughes Filer explained this would be permits are approved. Councilperson Carter was informed the problem at Riverside was due to a storm overflow collapse. Councilperson Perkins expressed concern that Group has for the Riverfront. Attorney 120 days after all non-local governmental Walnut and the Plan Commission, consisting of 11 members, has a problem getting a quorum and this "bogs down" the process. Councilperson Perkins has been working with Building Commissioner Scales to clean up the sand at the foundry on Market. He feels this sand is not safe by State standards and when it rains this gets into the Ohio River and the wastewater treatment plant. The foundry has been notified to clean up the alley immediately. The company has a piece of equipment to recycle this by-product which they are waiting for a part to come in to start the process. Councilperson Perkins made a motion to ask that clean up start within 48 hours and be completed within 10 days as this is not zoned properly and is not safe, seconded by Councilperson Harrod. The motion failed on a vote of 1-6. Councilperson Grooms has corresponded with Mr. Shrewsberry and asks that a decision be held off. Mayor Orem stated the last sample was "lost" for 120 days and this was the one that came back with an unfavorable rating. Councilperson Perkins feels this has been going on long enough and it is not supposed to be there, safe or not. Mayor Orem will ask that signs be posted, and Councilperson Carter requests that a retest be done as soon as possible. Councilperson Perkins made a motion that if the sand tests at a Class II rating, clean up has to begin within 48 hours and be completed Council will ask for Councilperson Harrod. within 10 days, and with a Class III rating the immediate action within 30 days, seconded by The motion failed on a vote of 3-4. PAGE 6 MARCH 19, 1990 Councilpersons Waiz, Caldwell, Williams, and Grooms voted no. Mayor Orem will work with the company to get the sand out as it is an eyesore and a potential problem. There being no further business to come before the Council, Councilperson Harrod made the motion to adjourn at 10:10 P.M., seconded by Council President Waiz, and carried unanimously. MAYOR DALE L. OREM ATTEST: ~LER~ k~ TREASURER~[ RICH SPENCER JR. March 12, 1990 MICHAEL T. FORSEE Attorney at Law Mr. John D. Perkins, Jr. Jeffersonville.City Council 323 East.Chestnut Street Jeffersonville, IN 47130 Dear Mr. Perkins: Pursuant to your request, I have prepared the following legal opinion in response to your question as to what, in fact, would constitute either a dire~t or indirect conflict of interest.that would necessitate a member of the City Council to abstain from voting pursuant to I.C. 36-7-4-223. The Indiana State Conflict of Interest Law is set out in I.C. 35-44-1-3. That statute basically states that.a public servant who has a pecuniary interest in or derives a profit from a contract or purchase connected with an action by the governmental entity he serves commits a class D felony under the Conflict of Interest Law. A public servant includes anyone who is authorized and paid to perform an official function on behalf of a-governmental entity or.is appointed to office to discharge a public duty for a governmental entity or is appointed in writing by a public official to act in.an-advisory capacity to a governmental entity concerlning a contract or purchase. (I.C. 35-41-1-24) Several cases have been decided under this statute': 1. It has been held that a city could not.properly contract to buy land from the mayor's father inasmuch as the mayor would be "interested" in such a contract, and the contract would be void. Blinn v. City of Marion, (1979) 390 N.E. 2d 2. It has been held that the fact that a Town Attorney stated a contract~under which.a member.of a-Town Board .was hired as Sewer Construction Inspector and Water Maintenance Supervisor was legal did not preclude conviction of Town Board-member on charge of having an interest in the town contract. Crider v. State, (197~) 282 N.E. 2d 819 3. It has been held that a melmber of the County Council would appear to be in violation of Section 35-44-1-1 et.seq. concerning a official misconduct in conflict of interest in 408 Cou Avenue, Jeffe on lle, Indiana 47130 (8t2) 283-5t02 Mr. John D. Perkins, Jr. March 12, 1990 Page 2 an instance where a County Council let a county contract with a business which in.turn offered a portion of the work to a subcontracting company in.which the member of the County Council owned a substantial interest. 1980, Op. Atty. Gen. No. 80-38 It is interesting to none that in 1989, I.C. 35-44-1-3 was amended and subsection (g) now states as follows: "A public servant has a pecuniary interest in a contract or purchase if the.contract or purchase will result or is intended to result in an ascertainable increase in the~income or net worth.of: 1) the public servant; or 2) a dependent of the public servant.who is under the direct or indirect administrative control of the public servant." It is this writer's understanding that the three (3) individuals involved are Robert Waiz, who owns three parcels of real estate on Riverside Drive and desires, an the immediate-future, to develop said real estate into condominiums; Roger Caldwell, who has an interest~in a certain business located on Spring Street very near the river front and James Carter, who provides a contractual food service to Lloyd Poore at the Bonnie Belle. tt now seems that the issue as to James Carter and the Bonnie Belle is moot and/or should be moot after May of 1990. As you are aware, there is ~certain litigation pending against the-City Council.and the City of Jeffersonville in a case known as "John B. Murphy, et al. versus the City of Jeffersonville, et al.", Cause No. 1C01~8912-CP-689 pending in the-Circuit Court of Clark County, Indiana. Thus far, this case has resulted in two (2) oral hearings before the Honorable Judge Donahue. At one of these hearings, Roger~ Caldwell.and James Carter testified. The plaintiffs in said lawsuit argued in these hearings that their real estate and specifically that of a Ms. Frey would be devalued as a result of the Hughes Development on Riverside Drive. -The City of Jeffersonvilte, by and through its attorney Charles G. Fifer argued in court and through cross-examination of certain witnesses that the property.in question would.in fact increase in value rather than decrease in value. Therefore, it would beyond the realm of imagination.that a multimillion dollar development such as is contemplated herein.would not benefit the three (3) City Council Members either directly or lndmrectly. It is also my understanding that at least one of the Mr. John D. Perkins, March 12, 1990 Page 3 Jr. City Council persons, in the past, ihas disqualified himself from voting on zoning and/or other developments in the past on the grounds~that he may have a conflict of interests. arising out of~his property ownership. It is my opinion that you simply cannot pick and chose as to what issues constitute a conflict and what issues don't.~- ~What I am trying to-say is that you either have a conflict on interest or you do not have~a.conflict of interest and it would seem to me that certainly if there is even the possibility of a conflict that one should disqualify himself from~voting to avoid even the appearance of an impropriety. I simply believe that certainiy the question Councilmen have at least the.probability of a-financial gain frem~the Hughes Development. It has bee~ said-over and over again by the Mayor and other City officials that this~deve!opment.will greatly benefit the City of Jeffersonville and, therefore, can only assume that it will greatly benefit the landowners, especially those who own property immediately adjacent to the development. This is especially true of property that presently is undeveloped and/or property wherein it is contemplated that the use of said property will be changed and/or greatly improved. · In the case of Fail v. LaPorte City-Board of Zonin~ ~ Appeals, (1976) 355oN.E. 2d 455 it was.held by the~tndiana Court of Appeals that to warranti.d~squalification under statute prohibiting participatiq~ ~n Board of Zoning Appeals heariRg or decision upon any zoning matter.in which member is directly or indirectly interested in a financial sense, it is unnecessary to establish that the prohibited interest actually affected the member's vote. "...the Court may find a conflict of interest up©n a cQnsideration or-whether situation is one reasonably calculated to-weaken public confidence and undermine-- public's sense of security~for protection of individual rights in exercise zoning authority." In view of the foregoing, it is-my-opinion that when you consider-the capital expenditures that are involved.in this project a~d further when you consider the impact that~said project may have on the City of Jeffersonville, that at a minimum we should insure that all procedures including Council.votes regarding the project should be open and above ~oard and certainly that they should not be influenced-by any alleged or possible conflicts of interests of any member of the Council. Mr. John D. Perkins, March 12, 1990 Page 4 Jr. In closing then, John, if you in fact were one of the three members, it would be my advice to you as your personal attorney to disqualify yourself from voting on any issues arising out of the Hughes Development, Thank you for consulting me regarding this matter. Very truly yours~ Michael T. F~rgee MTF/w CC: C. Gregory Fifer