The following city e-mails — which are public record — were provided by the Clerk-Treasurer’s Office to prove their claims that Diana Cordray isn’t refusing to pay the purchase order for snow removal, but they had questions about which fund would be used to pay for the purchase order. This is a copy/paste of the e-mail thread so I apologize if there’s not much context.
UPDATE: When Mayor Jim Brainard saw these e-mails, he said they were “cherry-picked” and did not show the whole story. There are two subsequent e-mails — which are time-stamped after the last e-mail provided by the Clerk-Treasurer’s Office — which suggest that the Indiana State Board of Accounts and the city attorney agree with Brainard’s suggestion to use the motor vehicle highway fund to pay for clearing sidewalks. Brainard tells Current that he agreed to take parking garages out of it to avoid any problems, so he doesn’t understand why Cordray wouldn’t process the purchase order. These e-mails are attached in the lawsuit which is linked below.
http://carmel.in.gov/modules/showdocument.aspx?documentid=5281
——–
From: Caldwell, Todd
Sent: Monday, November 17, 2014 2:24 PM
To: Johnson, Sandy M
Subject: RE: Question
We are not aware of any authority for snow removal from parking garages to be
paid from MVH funds. I understand there is an old Attorney General’s opinion
that allows for MVH to be used to remove snow from sidewalks, but I am unable to
put my hands on it right now. I can try and research it more tomorrow if you’d
like.
Thanks,
Todd Caldwell
Director of Audit Services
Indiana State Board of Accounts
NOTE: HERE’S THAT OLD OPINION:
[gview file=”https://youarecurrent.com/wp-content/uploads/2014/11/201411201014.pdf”]——-
From: Johnson, Sandy M
Sent: Monday, November 17, 2014 2:31 PM
To: Huffman, David; Engelking, Steve C
Cc: Sharp, Rick; Cordray, Diana, Sheeks, Cindy L
Subject: FW: Question
In regard to the two attached PO’s for snow removal… Here is the opinion from
the State Board of Accounts. I will let you know if Todd finds anything else
regarding snow removal from sidewalks. I am returning the two PO’s to the
Street Department.
Thanks.
Sandy Johnson
Asset Manager
City of Carmel – Clerk Treasurer’s Office
(317) 571-2628 – Direct
(317) 571-2410 – Fax
[email protected]<mailto:[email protected]>
—–
From: Haney, Douglas C
Sent: Monday, November 17, 2014 4:53 PM
To: Caldwell, Todd
Subject: RE: Question
Mr. Caldwell:
I am the Carmel City Attorney, and have reviewed your recent opinion as set
forth hereinbelow. To be sure that I understand your opinion, what you are
saying is that you find no authority in Indiana law, and specifically in IC
8-14-1-5, for the use of monies allocated to the City from the motor vehicle
highway account (“MVHA”)to remove snow from a parking structure, and that the
only authority you find in Indiana law for the use of these MVHA monies for the
removal of snow from sidewalks is an Attorney General’s opinion ( I believe it
is: 1965 Op. Atty. Gen. No. 64).
If this is so, I fully agree with your opinion from my own reading of Indiana
law, albeit without having the time to research whether any interpretative case
law may also exist.
However, I want to clarify that your opinion does NOT hold that general tax
revenue monies that are also deposited in a City fund that also contains the
City’s MVHA monies cannot be used for such snow removal. In other words, the IC
8-14-1-5 limitations on the permissible use of funds that you address in your
opinion pertain to MVHA monies ONLY, and not to other monies received from other
sources.
Please confirm that my understanding of your opinion is correct.
Thank you.
Douglas Haney
Carmel City Attorney.
—–
From: Caldwell, Todd
Sent: Tuesday, November 18, 2014 2:59 PM
To: Haney, Douglas C; Johnson, Sandy M
Cc: Gordon, Susan
Subject: RE: Question MVH
Mr. Haney,
Yes, your understanding as outlined in your first paragraph below is correct.
We aren’t aware of any authority to pay for snow removal from parking garages
with MVH monies. And thank you for providing the AG’s opinion; I was unable to
quickly put my hands on it yesterday. Again, you are correct that we find this
Opinion would allow for MVH funds to be used for snow removal for sidewalks.
To clarify about the other general tax revenue monies that are accounted for in
the MVH fund, our audit position would be those general tax revenues also would
fall under the provisions of IC 8-14-1-5 regardless of their source. In
Carmel’s case, general property taxes, financial institution taxes, CVET, and
vehicle excise are levied and receipted into the MVH fund, along with MVH
distributions from the State. When all are receipted into the MVH fund, they
lose their identity as to their source. So if $5,000 was paid for snow removal
from a parking structure, it could not be determined if that $5,000 was from MVH
distribution monies or the general tax revenues as both have been comingled. As
such, our position during an audit would be disbursements from the MVH fund
should only be used for the provisions outlined in IC 8-14-1-5, which would not
include snow removal from a parking structure.
If the removal of snow from a parking structure was paid from the General fund,
where general tax revenues are also receipted, we would not take exception.
Likewise, wherever the revenue generated from the operation of the parking
garage is accounted for could possibly pay the snow removal expense.
In conclusion, it’s our audit position that monies accounted for in the MVH fund
be used for the purposes outlined in IC 8-14-1-5. This would include, as per AG
opinion #64, 1965, removal of snow from sidewalks but would not include snow
removal from a parking structure.
Please let me know if you have additional questions. I apologize again for the
email snafu from earlier today.
Todd Caldwell
Director of Audit Services
Indiana State Board of Accounts
————-
From: Haney, Douglas C
Sent: Tuesday, November 18, 2014 3:17 PM
To: Caldwell, Todd
Subject: RE: Question MVH
Todd:
Thank you. Would that also be your position if the City can show that monies in
excess of all MVHA monies receipted into the City’s MVH Fund are available to
pay for snow removal and that it is therefore impossible for these excess monies
to be MVHA monies? It seems to me that, at this point, there is no basis in law
or fact for considering these excess monies to be from the MVHA. I mean, at
that point, is the ISBA’s position that such excess monies are subject to IC
8-14-1-5 (which only applies to MVHA funds) when it is demonstrably impossible
for those funds to be MVHA-sourced funds?
Doug
————–
From: Caldwell, Todd
Sent: Tuesday, November 18, 2014 3:44 PM
To: Haney, Douglas C; Johnson, Sandy M
Cc: Gordon, Susan
Subject: RE: Question MVH
Doug,
Yes, it is our audit position it’s not possible to distinguish because of the
comingling of the monies. If the MVH fund had $2,000,000 in general tax
receipts and $1,000,000 in MVHA receipts and paid a bill for snow removal
expenses for the garage in the amount of $10,000, it is not possible to tell if
the $10,000 was paid from the $1M MVHA or the $2M general taxes. Just because
there was more than $10,000 in general taxes would not necessarily illustrate
the payment came from those taxes. Part of our responsibility is to determine
compliance with IC 8-14-1-5 and because snow removal from the garage would not
appear to be allowable, we would have to say with certainty the $10,000 came
from the taxes and not the MVHA. With both in the same fund, we could not
determine that, so we have taken the position all disbursements from the MVH
fund should comply with IC 8-14-1-5 regardless of the source. Because of this,
we would recommend the expense for removing snow from a garage structure be paid
out of a different fund as suggested in my previous email. Or, if the city
wished to demonstrate the difference between the MVHA monies and those MVH tax
receipts, they could account for them in separate funds.
Todd Caldwell
Director of Audit Services
Indiana State Board of Accounts
—–Original Message—–
From: Johnson, Sandy M
To: wabsci
Sent: Sat, Nov 22, 2014 3:19 pm
Cindy and I met with Dave Huffman and Amy Lunn on Thursday november 20 at 8am.
We told Dave we would pay all claims, but we needed written opinions that it was
ok to use mvh funds. Our meeting was at street department.
———-
The city sent out the following release about the lawsuit:
Date: November 21, 2014
City of Carmel Files Verified Petition for Action of Mandamus Requesting Clerk Treasurer to Fulfill her Duties
The City of Carmel has filed a lawsuit against Carmel Clerk Treasurer, Diana Cordray, requesting that she perform certain duties resulting from her public office. The City has filed the Action of Mandamus as the result of the Clerk Treasurer’s office refusing to process a Purchase Order from the Street Department for the removal of snow from city sidewalks from the Motor Vehicle Highway Fund (MVH Fund).
Friday morning, Hamilton County Superior Court 1 Judge Steven Nation accepted the City of Carmel’s Action of Mandamus against Carmel Clerk Treasurer Diana Cordray. An Emergency Hearing on the Action has been set for Wednesday, December 3rd at 9 a.m. in Hamilton County Superior Court 1.
It is the responsibility of the Clerk Treasurer’s office to ensure funds are available in a particular line item and, if those funds are available, to approve the Purchase Order and place the corresponding contract for those services on the Board of Public Works agenda for contract approval. Without approval of the Purchase Order, the snow removal contract cannot be added to the Board of Public Works agenda for approval.
The City has asked the court to grant this Action of Mandamus due to the season and the likelihood of snow storms predicted for central Indiana as a matter of public health and safety for the City of Carmel. The City believes it is imperative to have the snow removal contracts in place before the arrival of heavy snow.
The City Street Department followed this same procedure in 2013 and the Purchase Order was processed by the Clerk Treasurer’s office without any problem. However, when the same procedure was followed this year, the Clerk Treasurer’s Office refused to process the Purchase Order citing improper use of MVH funds.
After the Purchase Order was rejected, the City requested clarification from the Indiana State Board of Accounts, which responded in part that “[I]t’s our audit position that monies accounted for in the MVH Fund be used for the purposes outlined in IC 8-14-1-5. This would include, as per AG opinion #64, 1965, removal of snow from sidewalks [.]”
A complete copy of the Verified Petition for Action of Mandamus is attached.
Here’s the link to the document. It is a very large PDF, so be patient:
http://carmel.in.gov/modules/showdocument.aspx?documentid=5281
City Councilor Rick Sharp, who is considering a run for mayor, posted the following on his “Rick Sharp for Carmel” campaign Facebook page:
“The facts behind the scenes clearly indicate that the CT was working with not only the Street Department, informing them at 8am on Friday that they would honor the PO but only wanted a written opinion that it was a legal expenditure of MVH funds. but also had the City attorney fully involved discussion. How does wide spread distribution of this press release, for a second time, serve the public interest. This is concerning!”
