St. John Indiana - Founded 1837
Return to Menu

September 27, 2012 Town Council Minutes

Michael Forbes, PresidentAttorney David Austgen
Mark Barenie, Vice-PresidentSherry Sury, Clerk-Treasurer
Larry BustamanteSteve Kil, Town Manager
Gregory Volk 
Ken Gembala 

CALL TO ORDER:
Mr. Forbes called the Town Council's regular meeting of September 27, 2012, at 7:35 p.m. (The Pledge of Allegiance was said.)

ROLL CALL:
Ms. Sherry Sury, Clerk-Treasurer, took roll call with the following members present: Michael Forbes, Mark Barenie, Gregory Volk, Ken Gembala, and Larry Bustamante. Attorney David Austgen was present. Staff members present, Steve Kil. Police Chief, Fred Frego and Fire Chief, Fred Willman were present. Chip Sobek, Parks Superintendent, was present. Recording Secretary, Susan E. Wright was also present.

APPROVAL OF MINUTES:
MINUTES OF JULY 10, 2012, JULY 10, 2012, and AUGUST 23, 2012

Mr. Forbes requested one change in the minutes of July 26, 2012. On Page 3 of 3, Line 4 of the first paragraph, Mike Forbes requested “He mentioned” should be changed to “Mr. Storiz mentioned.” Ms. Sury duly noted the requested change.

Mr. Forbes asked the Board if there were any other additions, changes, or deletions. There were none. Mr. Forbes stated he would entertain a motion on the minutes of the amended July 26, 2012, regular meeting, the joint meeting of the Town Council/Police Commission Executive Session on July 10, 2012, and the regular meeting of August 23, 2012.

Mr. Volk made a motion to approve the minutes of the July 10, 2012, a joint Town Council/Police Commission Executive Session; the August 23, 2012, regular meeting; and the amended minutes of the July 26, 2012 regular meeting. The motion was seconded by Mr. Gembala. Mr. Barenie abstained Mr. Bustamante abstained. The motion was carried by 3/0/2.

PUBLIC HEARING:
A. ORDINANCE 1560 ‐ AN ORDINANCE ESTABLISHING THE 2013 MUNICIPAL BUDGET

Mr. Forbes asked for a status on the Proofs of Publication for the public hearing from Attorney Austgen. Attorney Austgen stated that timely publication of notice to the taxpayers on the budget hearing appeared in both the The Times and the Post Tribune. These Proofs of Publication for the 2013 budget hearing will be annexed to the meeting minutes for the Council's consideration and review.

Mr. Zender appeared before the Board with the Town's budget. He stated that the Town's maximum levy for all of its funds is at $3,958,878.00. He anticipates that budget for 2013 will be the same. Mr. Zender stated it most likely will stay the same until such time as Lake County adopts option income tax or there is a final resolution by the General Assembly.

Mr. Zender stated that the general fund budget for 2013 is proposed at $4,233,987.00, an increase of $9,600. He stated that various other funds of the Town including debt service, motor vehicle highway funds and other miscellaneous funds total $5,093,761,00 an increase of $14,000 from 2012. He stated that trash operating fees will likely increase by $100,000.00 in 2013.

Mr. Zender stated there is a provision for one full time employee which would be shared between the Town's general fund and the utility funds. The Fire Department has provisions for a firefighter/paramedic position which has been established in the budget. He stated that the budget has a built-in two percent increase, but this would be a policy decision made at the discretion of the Town Council.

Mr. Zender concluded his statements. He stated that the budget would not be adopted until the October 25, 2012, meeting. He stated he would be happy to answer any questions.

Mr. Forbes asked the Council if they had any questions. There were no questions or comments from the Council. Mr. Forbes opened the floor for public hearing on the Town of St. John's 2013 Municipal Budget. There were no comments from the public.

Mr. Forbes closed the public hearing and brought the matter back before the Council. He stated he would consider a motion on Ordinance 1560 on first reading only. Mr. Bustamante made a motion to consider Ordinance 1560 of first reading only. Mr. Volk seconded the motion. The motion was unanimously carried by voice vote (5/0).

NEW BUSINESS:
A. CONSIDER RESOLUTION 12-09-27 - RESOLUTION ADOPTING AN AMERICANS WITH DISABILITY ACT TRANSITION PLAN IN ACCORDANCE WITH CURRENT APPLICABLE FEDERAL LAW

Mr. Forbes stated that the Disability Act Transition Plan is a law that all towns must adhere to pursuant to federal law. He stated that Mr. Kil has been working diligently on this ordinance with other department heads to prepare the same. Mr. Kil stated that the federal government has mandated that each community implement a Disability Act Transition Plan. Mr. Kil stated that the Town was required to do a self-assessment and identify any deficiencies related to the Disability Act/Transition Plan.

As an example, Mr. Kil used the Olcott Water Main Replacement Project that the Town is currently working on. He stated that in accordance with the Transition Plan, since the Olcott intersection has been disrupted for improvements, the improvements must include making the entire intersection handicapped accessible. In addition, he stated that the Town Hall now has handicapped accessible doorways.

Mr. Kil stated that the Town will continue to work towards full compliance with the Disability Act Transition Plan. Mr. Kil stated that the proposed ordinance is completed and ready for Council's consideration. He stated that NIRPCI has requested a copy which he will forward to them in the coming week.

Attorney Austgen stated that the staff has done a tremendous job in preparing this high quality document. He stated that the “specimen document” being so well done could be used as a model for other communities.

Mr. Forbes stated it is a significant document and a great product and he appreciates all of the work that the staff has put into its creation. Mr. Forbes stated he would entertain a motion to adopt Resolution Number 12-09-27. Mr. Volk made a motion to approve Resolution Number 12-09-27; Mr. Gembala seconded the motion. The motion was unanimously passed by voice vote (5/0).

B. CONSIDER LETTER OF CREDIT ‐ CL7399LC - FOR MEYERS DEVELOPMENT IN THE AMOUNT OF $40,476.39.

Mr. Forbes stated the Council is being asked to consider approval of a letter of credit on Meyers Development based upon the recommendation of the Plan Commission. He stated he would entertain a motion on this item. He asked the Council members of there were any questions. There were no questions.

Mr. Barenie made a motion to approve the letter of credit, CL7399LC, for Meyers Development; Mr. Bustamante seconded the motion. The motion was unanimously carried by voice vote (5/0).

C. RESOLUTION NUMBER 12-09-27A - ADDITIONAL APPROPRIATIONS FOR THE POLICE DEPARTMENT - SPECIAL REVENUE FUND NUMBER 275‐ PUBLIC HEARING

Mr. Forbes stated that a public hearing would be held on Resolution Number 12-09-27A, a resolution for additional appropriations for the Police Department's Special Revenue Fund, Number 275. Attorney Austgen noted that timely publication has been made to both The Times and the Post Tribune. The Proofs of Publication will be annexed to the minutes for the Council's consideration and review.

Ms. Sury explained to the Council that when the last three police cars were purchased there was an encumbrance which used up the appropriation. She stated authorization was given for the purchase of one additional vehicle which was recently delivered.

She stated that the money is in the fund but not in the appropriation. She requested placement of $80,000 into the appropriation to keep things on an even keel. Ms. Sury stated that she discussed this matter with Mr. Kil and Bev.

Mr. Forbes asked if the appropriation was for the last squad car that was purchased.

(General discussion ensued.)

Mr. Forbes opened the floor for public hearing for the Police Department Special Revenue Fund, Number 275. There were no public comments. Mr. Forbes closed the public hearing and brought the matter back to the Town Council. He asked for further comment or questions. There was no further discussion by the Council members.

Mr. Forbes stated he would entertain a motion on Resolution Number 12-09-27A. Mr. Barenie made a motion to adopt Resolution Number 12-09-27A, additional appropriations to the Police Department's Special Revenue Fund, Number 275. Mr. Bustamante seconded the motion. The motion was unanimously passed by voice vote (5/0).

D. CONSIDERATION OF ORDINANCE NUMBER 1562 ‐ AN ORDINANCE REDIVIDING THE TOWN INTO DISTRICTS, WARDS FOR THE PURPOSE OF CONDUCTING ELECTIONS OF TOWN OFFICIALS

Mr. Forbes stated there was a legal description defining the three wards in the Town of St. John. Mr. Gembala remarked that the Town was required to move the ward lines after the 2010 Census was published. He stated he read the definitions for the three wards. He noted that there are two sentences on the second page of the description of Ward One that may not belong there. He noted that it may only be a typographical error. Mr. Gembala stated that although this language does not substantively change the definition of Ward One, it should be verified and possibly omitted before it is published.

Attorney Austgen concurred with Mr. Gembala. He stated that there should be a proofing of the legal description also. He recommended that the only action that the Council take on this matter be the initial reading consideration. He recommended that a final editing review should be undertaken to verify the accuracy of the document.

(General discussion ensued.)

Mr. Forbes stated that he would entertain a motion to approve Ordinance Number 1562 on first reading. Mr. Bustamante made a motion to approve Ordinance Number 1562 on first reading. Mr. Barenie seconded the motion. The motion was unanimously carried by voice vote (5/0).

REPORTS AND CORRESPONDENCE:
TOWN COUNCIL:

Mr. Forbes asked Mr. Gembala if he had anything to report. Mr. Gembala noted that the work on the Olcott sewer project is progressing; he stated that the sidewalks and aprons have been poured. He noted that the landscaping has to be finished. He stated with the onset of cold weather he would like to see the project completed in a timely manner.

(General discussion ensued.)

Mr. Volk had nothing to report. Mr. Barenie had nothing to report. Mr. Bustamante stated that the Town has received their new plow truck and will be ready for the snow. Mr. Barenie asked for the floor as he had a few items he failed to mention. He stated that the Town's Annual Public Safety event will be commingled with the Town's 175th Anniversary celebration this year. He stated that the event is slated for October 6 and 7th.

Mr. Barenie commended Chief Frego and Fire Chief Willman for providing this tremendous public service event to the Town for over ten years. He stated that over one thousand citizens have attended in the past.

Mr. Barenie stated that extra festivities have been added this year. The celebration will commence with a chili cook-off at the VFW. There will be a 5k walk/run race on Saturday, October 6, sidewalk sales, a beer garden and vendors. Mr. Kil stated that details of the event are posted on the website. Mr. Forbes stated that the Haunted House opens on this weekend, and there is also a parish event scheduled.

Mr. Barenie stated he has attended eight out of the last nine Chamber of Commerce meetings at the VFW. He stated that there are usually 60 to 100 citizens in attendance at the Chamber meetings. He stated that the Chamber members are receptive to a council member attending the meetings to keep informed on the businesses and the competitive nature of the economy.

CLERK-TREASURER: Ms. Sury had nothing to report.

ATTORNEY'S REPORT Attorney Austgen had nothing to report.

STAFF: Mr. Kil informed the Council that the Town has almost doubled the number of building permits issued in 2012 as compared to year of 2011. He stated that the data has been submitted to the Council for their perusal. Mr. Kil stated that he is anticipating issuing 16 additional building permits tomorrow as Mr. Meyers will be pulling building permits for every one of his units at once.

Chief Willman delivered the Fire Department's Activity Report for August, 2012.

Chief Frego delivered the Police Department's Activity Report for August, 2012.

Mr. Sobek stated that he was privileged to accept a donation on behalf of the Parks Department from the Phi Kappa Zeta. Mr. Sobek stated that they will be donating a tree for Prairie West Park. He thanked the Phi Kappa Zeta chapter for their donation.

Mr. Sobek stated that thus far the fall programs are getting a decent start with Registrations.

Mr. Forbes stated that Mr. Sobek should take care that the location selected for the tree to be planted in Prairie West Park does not interfere with the CDBG project set to take place there. Mr. Sobek concurred.

PAYMENT OF BILLS:
Mr. Forbes stated that the general APVs Nos. 8484 through 8704 amounted to $2,745,144.56. He asked the Council members if they had any questions on these bills. There were no questions or comments from the Council.

Mr. Volk made a motion to approve the general APVs, Nos. 8484 through 8704 in the amount of $2,745,144.56. Mr. Barenie seconded the motion. APVs 8484 through 8704 were approved by voice vote (5/0).

PUBLIC COMMENT:
Mr. Forbes called for public comment.

Attorney Jeffrey Gunning, 9245 Calumet Avenue, Munster, Indiana:
Attorney Gunning introduced himself to the Council. He stated he is acquainted with some of the council members. His law practice is located in Munster, Indiana. Attorney Gunning informed the Council that he serves as Special Counsel to the Clerk-Treasurer, Ms. Sherry Sury.

Attorney Gunning stated he finds Ms. Sury to be competent, dedicated, careful and law-abiding. Attorney Gunning stated that he wished to express his objection, on behalf of his client, on the Council's decision to hire a recording secretary for the Town Council meetings.

Attorney Gunning asserted that the law is clear in that this duty (recording secretary) is spelled out as an express function, duty and power of the Clerk-Treasurer. Attorney Gunning stated that Indiana law has a “plain meaning statute.” He asserts that this means the statutes mean what they say and have their plain and ordinary meaning.

Attorney Gunning stated he believes the law is clear where the power and duty lies with this particular function. He stated there is a function embodied in Indiana law, when necessary, to construe the meaning of statutory provisions; he stated this function is only invoked in instances where the meaning is unambiguous. Attorney Gunning stated he believes that the language is clear and unambiguous as to where the power and duty rests.

Attorney Gunning stated he performed an analysis today, and in his opinion, every analysis on statutory construction comes off on the side of the Clerk-Treasurer having the power to perform this duty (recording secretary).

Attorney Gunning stated that he understands the view to be that the statute states that the Council is not prohibited from appointing a recording secretary. He urged the Council to consider and read the Home Rule powers and the Home Rule statutes. He stated that Council members are probably generally familiar with the concept that while Council, as a unit, does possess Home Rule powers to do what is necessary to carry out functions for local government purposes, there is a Specific Manner Rule and there are other powers withheld and limitations in the Home Rule statutes.

Attorney Gunning stated that Specific Manner Rule and the Powers Withheld Rule provides and operates by stating that if the statutes provide a specific manner for doing something, or it provides for an agent, agency, unit or department of local or state government to do some function then you must proceed in the proscribed manner.

Attorney Gunning urged the Council to examine the Home Rule statute. He stated that this is aside from all of the other rules regarding the legislative body and its functions. He stated that the Council really cannot do this (hire a recording secretary).

Attorney Gunning stated that the statute is clear that the Clerk-Treasurer is to attend meetings and record council proceedings. He stated that this area of Indiana has been emphasizing, of late, engaging in good government practices and policies. He stated these practices and policies have taught us that just because a practice is not illegal does not make it the right thing to do. Attorney Gunning stated that employing a duplicate recording secretary is not the right thing to do. He states it is a duplication in services and more importantly, a real cost to the taxpayers.

Attorney Gunning stated he does not know how this matter got to this point. He stated if Ms. Sury, in her efforts to be dedicated, careful and law-abiding has offended then he would appeal to the Council, on an emotional level. He stated that the bungling of the situation is an entanglement that can be undone by reconsidering the hiring of a duplicate recording secretary.

Last, Attorney Gunning urged the Council to consider whether this move would be a good expenditure of taxpayer money. He stated that if the State Board of Accounts were to audit the books and if the State Board of Accounts were to decide that the State would seek to recover those monies because it were deemed a waste of resources and taxpayer money, then the Council may be on the hook for any recovery.

Attorney Gunning urged the Council to reconsider their decision to hire a recording secretary. He thanked the Council.

Joe Hero, 11723 South Oakridge Drive
Mr. Hero asked the Council why they were hiring another recording secretary when the Clerk-Treasurer is the recording secretary. He stated he wanted to know the motive behind this. He asked the Council if Ms. Sury was following the money too good. He asked the Council why they would want to stop Ms. Sury from being the recording secretary. He asked Mr. Forbes to explain it to him; he stated that he is suspicious of this move.

Brenda Bagherpour, 8347 Heron Lake Road
Ms. Bagherpour informed the Council a temporary light has been placed at the school during construction. She stated that the light is facing south near the shed. She stated that this misdirected street light is burning her retinas. Mr. Kil stated that the light Ms. Bagherpour is speaking of is a temporary light utilized to get vehicles out on to Sesame Street after a football game.

Mr. Forbes stated that he will investigate this matter and see if this light can be moved or redirected. Ms. Bagherpour informed the Council that she has placed her house for sale.

Mr. (unintelligible) 7747 West 90th Avenue
He stated he believes Sherry is “doing a hell of a job.” He stated that this is all just politics that are taking place. He stated anything else would be a waste of taxpayer money.

Mr. Forbes called for additional public comment. There was no further comment from the floor. Mr. Forbes closed the floor for public comment and brought the matter back before the Board.

Mr. Forbes asked Attorney Austgen for rebuttal. Attorney Austgen stated he was asked by the Council to review the ability of the Council to retain and utilize a recording secretary for purposes that are supplemental to the Council's duties and functions. Attorney Austgen stated that the Council may retain a recording secretary.

Attorney Austgen cited Home Rule statutes. He stated that he is acquainted with Mr. Gunning and has the utmost respect for him, but he does not agree with Attorney Gunning's position on this matter. He maintained that the Council has the authority to hire and retain a recording secretary.

Mr. Barenie responded by saying that Ms. Sury is the Town's Chief Financial Officer. He stated that the meeting minutes could be taken by a professional and that Ms. Sury would have more time to devote to the Clerk-Treasurer's office. He noted that the Town has been trying to get direct deposit for quite some time.

Ms. Sury stated that she takes the meeting minutes, but does not prepare them. She stated she directs someone else to type them and she critiques them.

Ms. Sury stated that the direct deposit program has been set up and should be implemented by November of 2012. She stated she did this at a savings of $500 for the Town.

There was no further comment.

ADJOURNMENT:
Mr. Forbes called for a motion to adjourn. Mr. Barenie made a motion to adjourn the meeting; Mr. Volk seconded the motion. The motion was unanimously passed by voice vote (5/0). (The meeting was adjourned at 8:20 p.m.)

A TRUE COPY

_______________________________________________Susan E. Wright
Recording Secretary St. John Town Council