As Marion City Council continues to seek more transparency from the city administration over the financial impact of the Old Y lawsuit, a state official agrees with Mayor Jess Alumbaugh that the body met illegally in May.

Alumbaugh declined an invitation from council to meet in executive session June 17 to discuss the Old Y lawsuit, in part due to the fact that the two Democratic council members attended a Republican caucus meeting in May.

Council President Deb Cain previously confirmed to the Chronicle-Tribune that the two Democratic members attended the May 14 caucus, and she stated Old Y documents were handed out at the meeting but there was no discussion of the matter. The discussion revolved around hiring a new council attorney and issues with the Estates of Serenity Cemetery, Cain said, but no action was taken at the caucus.

Indiana Public Access Counselor Luke Britt said caucus meetings were made part of Indiana Open Door Law “solely for political strategy” between members of a single party, so the May 14 caucus meeting violated public access laws since members of both parties attended a meeting designated as a caucus.

“The way it’s almost always invoked, exclusively, is for each party to kind of, you know, round up the troops and talk about their political platforms and their ideology and what’s best for their party and election efforts and things like that,” Britt said. “I can say with confidence that mixing parties into a caucus is not what the General Assembly intended with that exception to the Open Door Law.”

Britt said in his opinion, having members of two parties at a caucus is a “blatant erosion of what the Open Door Law stands for” and is illegal, but the penalties for the violation are a bit murkier since no votes were taken at the meeting and it’s hard to walk back a discussion like you can with a vote.

“If someone found it so egregious that they were to file a lawsuit, then (the members of the council) could be on the hook for things like attorneys fees and court costs and civil penalties if they continue to flout the law,” he said. “And so there’s some teeth in that law. There’s some consequence, but it’s kind of a longer process to get there. But it’s not without its ramifications.”

Cain previously said she invited the Democrats to the caucus to encourage collaboration and bipartisanship. Britt said while that’s how government should work, the meeting should’ve been held as a public meeting since the topics discussed were not of a sensitive nature that executive session laws allow for.

“It has to be done in public, it can’t be done behind closed doors and it can’t be a caucus,” he said. “It would just be a caucus in name only.”

Meanwhile, at a special meeting last week, council voted 7-1 to formally invite Alumbaugh, city attorney Tom Hunt, Controller Julie Flores and Chief of Staff Mike Flynn to the next regular council meeting to discuss the Old Y litigation and its finances after council members said they were unsatisfied with the written responses they received from the administration.

Council member Steve Henderson was absent from the meeting, and member Robin Fouce said she voted against the formal invitation because she believes it should be “automatic” that the administration and council work together without such formality.

“We all ran campaigns on collaboration, working together. This particular mayor ran his campaign on working with the council, so why is an invite necessary?” Fouce said. “So I do not agree with extending an invite to someone who should be there anyway.”

In response to a question requesting the written contractual agreement with law firm Ice Miller for the lawsuit, including an hourly rate, fee agreements, scope of work and a letter of engagement, the administration responded that the city’s copy of a 2016 engagement letter with Ice Miller had been misfiled and could not be found by the council’s deadline. The city is requesting a copy from Ice Miller attorney Phil Whistler and said it will provide council with a copy once it is received.

“In my opinion, their answer is unacceptable. I can’t somehow imagine that a document as important as that initial agreement is misfiled,” Fouce said. “That’s just me. Hopefully, it is misfiled and we’ll get that, but we don’t have that. It leaves me to wonder how much else in the case has been misfiled. That’s just me.”

When asked to provide accounting for the reported anonymous donations that helped fund the lawsuit, Alumbaugh responded that those dollars went straight to Ice Miller so the city had no record of the transactions.

Council asked the administration if Ice Miller would be preparing a closing report, and Alumbaugh responded that Hunt is in constant communication with Ice Miller about the case but he was unclear what council meant by a closing report. Council member Brad Luzadder and Cain said they would like Ice Miller to produce a document summarizing the work they did, their thought process and more, much like what the Indiana Court of Appeals filed when making its ruling the statute of limitations had expired in the case.

In response to a question asking for a “detailed accounting of how much has been paid out of the bond issued to London Witte for the YMCA project,” the administration responded no bond was ever issued to London Witte, since it acted as a financial advisor, so it was unclear what council meant by the question.

Luzadder said it would be much easier for the council to talk with Alumbaugh and the administration in person with their questions, stating it appeared Alumbaugh’s answers were “argumentative.”

“We’re playing games and this is not something to be played with,” he said. “The finances of the city is not a joke and we spent $1.6 million which we could’ve definitely used in other places in this city. If we want to play verbiage back and forth nothing is going to be solved. It has to be open communication.”

Fouce made a motion, and council voted 7-1 that the body would meet with a legal advisor and seek out “any remedy that we have within our power to get the information we need” if the administration declined the invitation to come to the July 7 regular meeting.

Council member Mike Cline voted against the motion and said “it was too big a step with too little information.”

“Why would we make that decision now when we do not know what the city, what the administration is going to say?” Cline said.

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