Wednesday, October 01, 2014

Son Of Herff Jones Executive Receives 3 Years On Home Detention For Fatal Hit-And-Run

Alex Parrett
A Hendricks County judge yesterday sentenced Charles Alex Parrett, the 19-year old son of Herff Jones VP and CFO Michael Parrett, to four years of home detention with one year suspended after he agreed to plead guilty to a single felony charge of fleeing the scene of an accident resulting in death. A vehicle driven by Parrett struck and killed 36-year old Robert Blankenship on U.S. Highway 36 on February 5. Parrett initially fled the scene and went to a restaurant in Plainfield before later returning to the scene with his mother.

Subsequent toxicology reports revealed that Parrett was under the influence of marijuana at the time of the accident. Judge David Coleman agreed to dismiss a felony charge against Parrett for driving under the influence of a schedule I or II controlled substance as part of a plea agreement Parrett reached with the Hendricks County Prosecutor's Office. Parrett, an Avon High School graduate, was a freshman member of Wabash College's football team at the time of his arrest. Parrett will be required to serve one year of probation after he completes his sentence of 1,093 days on home detention. He was also ordered to perform 40 hours of community service, fined $100 and ordered to pay $2,248.00 as partial restitution. Parrett is to be working or enrolled in school during his sentence, as well as undergo substance abuse evaluation and treatment.

Spierer Family Lawsuit Against Former IU Students Dismissed

The disappearance of Lauren Spierer, an undergraduate student at Indiana University, on June 3, 2011 remains as much of a mystery as the day we first learned of her disappearance following a night of drinking with several male friends in Bloomington. The questionable handling of the case by Bloomington Police and Indiana State Police investigators may never yield answers that will unravel the unsolved case to bring closure for her parents. Efforts by Spierer's parents to find justice through a civil lawsuit have met a similar fate. Judge Tanya Walton-Pratt has dismissed on summary judgment a negligence and Dram Shop Act violation claims against two defendants, Corey Rossman and Jason Rosenbaum, two IU students who were in Spierer's company on the night she disappeared. Judge Pratt earlier dismissed a wrongful death claim against the two and another IU student, Mike Beth.

Essentially, Spierer's claim against Rossman and Rosenbaum was dismissed because they were unable to designate sufficient evidence from which a reasonable jury could find that the underaged Spierer's intoxication on the night in question was the proximate cause of her injury or death. Spierer's attorneys belatedly tried to save their case from dismissal on summary judgment by claiming they had not had an adequate opportunity to conduct discovery that would establish a genuine issue of material fact that could be considered by the jury. Judge Pratt rejected their assertion, noting that the plaintiffs' attorneys had never requested additional time to respond to the defendants' summary judgment request and had even told the magistrate handling the case that additional discovery was not necessary to respond to the defendants' summary judgment motion. Spierer's attorneys also could not point to any information they anticipated uncovering during discovery that would create a genuine issue of fact.

Spierer's attorneys had offered an affidavit of a medical expert who would testify that her state of intoxication seriously diminished her mental and physical capacity to establish liability on the part of the defendants for allowing her to walk home on her own. Oddly, the plaintiffs never named Kilroy's Sports Bar as one of the defendants in the suit. Rossman had taken Spierer to Kilroy's that night and purchased alcohol for her there. When the two left the bar around 2:30 a.m., Spierer was observed to be highly intoxicated. She left without her shoes or cell phone. The two headed to her apartment before later going to Rossman's apartment. When Rossman's roommate, Mike Beth, got home around 3:30 a.m., he found Spierer in a highly intoxicated state and took her to Rosenbaum's apartment. Spierer later left Rosenbaum's apartment around 4:30 a.m. on her own to head to head back to her apartment when she disappeared.

It's always been my theory that Spierer likely fell and struck her head at some point during the night and suffered a severe head injury. She likely died while in the presence of whoever was with her last. That person panicked and disposed of her body rather than call police and answer questions about her death. Speculate is all we can do at this point since no body has ever been recovered and nobody has come forward with evidence to explain her disappearance.

When I was growing up in Marshall, Illinois, a farmer in our town, Fred Grabbe, strangled to death his wife, Charlotte, and burned her body down along the Wabash River and then threw her remains into the river. Her disappearance went unsolved for years until Grabbe's former girlfriend turned on him and provided testimony against him. The girlfriend had witnessed Grabbe strangle his wife, have sex with her dead body one last time and then using a grease gun to pump her body cavities full of grease before throwing her body in a 50 gallon barrel, driving her to the river, pouring diesel fuel on her body and then setting it on fire. The prosecution actually found an expert witness on trees from the University of Illinois who testified that he could explain stress damage to the tree under which Charlotte's body was burned to a fire that occurred near the date by examining the tree's rings. The case took an odd twist after Grabbe was found guilty and awaiting sentencing. Another girlfriend of Grabbe barged into the Clark Co. Jail where he was being held, shot a deputy and tried to spring Grabbe from jail before being overpowered. Shortly after he was sentenced, both his and his son's houses mysteriously burst into flames simultaneously and burned to the ground. His son, Jeff, was later found dead floating off the coast of Long Beach, California. Jeff's killer was never determined. The arson remains unsolved as well. Maybe someday a person's conscience will lead them to come forward with the truth about the disappearance of Lauren Spierer.

The Indiana Law Blog has posted the summary judgment opinion here.

Angie's List Next Step Is To Find Foolish Buyer

Angie's List should be formally declared a Ponzi scheme. It's operated for nearly two decades and has never turned a profit. The end game has always been to swap out one group of duped investors for another to provide cash infusions to keep the company afloat. Most astute stock investors have figured out that the Angie Hicks/Bill Oesterle business model only makes money for themselves and a few company insiders. Now that the company's stock has been in a downward spiral for the past year it should come as no surprise that Hicks and Oesterle would start shopping their company to a buyer. The IBJ, which is owned by one of Angie's List's long-time directors, Mickey Maurer, is all giddy about the company's stock rising on news of a possible sale of the company:
Shares of Angie’s List Inc. rocketed 22 percent higher Tuesday night after The Financial Times reported that the fast-growing consumer-review service had hired investment bankers to explore strategic options, including a sale.
An Angie’s List spokeswoman said the company had no comment because it does not respond to "rumors." The company’s shares surged $1.73 to $7.80 in after-hours trading.
The Financial Times, which did not name its sources, said Angie’s List had held conversations with prospective buyers. However, the newspaper cautioned that the company “is not wedded to selling itself” and might decide not to pursue a deal . . .
The company has been laying off sales staff following its most recent $18 million quarterly loss, and the company has been moving its staff from a series of buildings on East Market near downtown that it bought from a company owned by Oesterle into an office tower on North Meridian. Is there really a company out there that would be foolish enough to buy Angie's List? It makes you wonder just what the hell the business of America is all about when people like Hicks and Oesterle can become multi-millionaires running such a business that should have been shut down years ago due to the massive losses it has accumulated year after year without exception. How any consumer would pay for a membership fee and trust their ratings when the company relies on the vast majority of its revenues from the service providers it supposedly objectively rates is a mystery to me. The company just recently settled a class action lawsuit that accused it of providing misleading information to its members regarding automatic renewal of memberships.

Monday, September 29, 2014

So Just Who Is This Brian Howard Guy?

FAA fire suspect Brian Howard (FACEBOOK/April Howard Connor) The 36-year old Naperville, Illinois man accused of sabotaging the FAA's Air Route Traffic Control center in Aurora last Friday and effectively shutting down all flights in and out of Chicago's O'Hare and Midway airports made his first appearance in court today. Until late today, little had been reported about the man who set fire to sensitive equipment at the traffic control center before he attempting to take his own life. Initial reports told us only that Brian Howard was a contract worker at the center who had allegedly become disgruntled after learning he was going to be transferred to Hawaii. Family members contacted authorities early Friday morning after seeing a Facebook posting Howard had made warning of his intentions of causing harm to the traffic control center and himself, but their call came too late to stop Howard. The FAA is relying on traffic control centers in Indianapolis, Cleveland and elsewhere to route traffic through Chicago while repairs to the Aurora center are being made.

Typically when these high-profile events happen, one of the cable news stations like CNN or news rags like the Daily Mail almost immediately have access to family and friends close to the culprits or victims to weave a narrative for our absorption, along with plenty of pictures. To my surprise, that didn't happen in this case despite the havoc Howard managed to wreak on the nation's air travel for several days. A couple of days ago, the Northwest Indiana Times revealed that Howard was a 1996 graduate of Highland High School. Nobody from the Highland area offered information about him, but they did manage to find a U.S. Marines officer who lives and works in North Carolina who claimed to know him in high school. "Maj. Michael Kaniuk of the U.S. Marine Corps grew up with Howard and played soccer with him at Highland High School," the Times reported. "Kaniuk, who now lives and works in North Carolina, said Saturday he was surprised to hear of the allegations against Howard, which he deemed a “terrible tragedy." “I would never have pegged him as a guy that would do something like he is alleged of doing,” Kaniuk said. Isn't that what they always say?

According to the Times, Howard joined the U.S. Navy in 1996 upon his graduation from high school. He graduated a year later from the Naval Submarine School in Groton, Connecticut. The U.S. Navy issued a press released upon his graduation in which military officials said "as a graduate of the course, Howard demonstrates his ability to excel in an elite underwater force." The training program for the Navy's nuclear submarines is limited to male candidates only and requires passing a physical and mental screening. CBS 2 in Chicago reported that Howard served in the Navy until 2000. He earned a good conduct medal and other awards before being honorably discharged. CBS 2 also released the first photograph of Howard that I could find anywhere on the Internet.

Earlier news reports mentioned the fact that Howard was a contract employee at the air traffic control center in Aurora but did not name that contractor. CBS 2 identified his employer for the past eight years as Harris Corp. Do you remember that name? You should. The Florida-based technology company is a major defense and national security contractor. It's been in the news a lot lately because of the Stingray technology it has developed for use by the National Security Agency and law enforcement agencies across the country to illegally capture all of our cell phone communications. Details about the devices are not made available on the company's website. Marketing materials contain a disclaimer that anyone caught distributing the product to anyone outside law enforcement agencies or telecommunications companies could be committing a crime punishable by up to five years in jail. The Indianapolis Star reported earlier this year that both the Indiana State Police and the Indianapolis Metropolitan Police Department have acquired Stingray technology, although neither would comment publicly on how they are using the technology. Harris Corp. had been hired to modernize communication systems in FAA centers.

During a brief court appearance today, Howard was described as wearing hospital green scrubs after being transported from a suburban Chicago hospital to the Dirksen federal courthouse in Chicago with a bandage around his neck where he had supposedly used a knife to cut himself. Howard is represented by Ronald Safer, a prominent white collar criminal defense attorney and managing partner at the Chicago law firm of Schiff Harden. Safer typically represents high-profile corporate clients. He previously spent ten years working as an assistant U.S. Attorney in Chicago. "He made a tragic mistake," Safer said of his client. "Only someone who’s deeply troubled would do that." Safer described Howard's actions as a cry for help. "Friday morning, Brian tried to take his life. That he did so in a way that inconvenienced — and more — many, many people is unacceptable, and he deeply regrets that,” Safer told reporters. The judge ordered Howard held without bond. He faces up to 20 years in prison if convicted of the charges federal prosecutors filed against him.

Digital Sign Permits Courtesy Of Mayor Rahm Emanuel Provide Prime Advertising For GOP Gubernatorial Candidate


The Illinois Republican primary for governor could not have turned out better for Chicago Mayor Rahm Emanuel, a Democrat. Emanuel owed that cool $16 million he earned in his very brief career as an investment banker despite having no prior business experience to billionaire venture capitalist Bruce Rauner, the first-time candidate who snatched the GOP nomination away from veteran GOP elected officials in this year's primary. In the past, Rauner has contributed more than a half million dollars to Democratic candidates like former Mayor Richard Daley, along with generous contributions to Republicans. Rauner's wife even contributed to Obama's 2008 presidential campaign.

It turns out that Emanuel has done his part to repay Rauner. Shortly after Emanuel became Chicago's mayor in 2011, Rauner started up a new company, Digital Greensigns, and applied for 107 sign permits from City Hall after a new law allowed sign companies to obtain permits for digital signs. Emanuel's administration awarded 37 permits to Rauner's company, which has put up 23 digital signs so far according to the Sun-Times' Tim Novak, making it one of Chicago's largest digital billboard sign operators. Rauner's gubernatorial campaign has been using the signs throughout the city for campaign advertisements that alternate messages 24x7, including images depicting Democratic Gov. Pat Quinn's alter ego, Quinnochio, who has a very long nose because he keeps telling lies. Campaign finance reports show that Rauner's company has provided $215,000 of free advertising to his campaign to date.

The City subsequently tightened the regulations on the placement of digital signs after people started complaining about them being too big, too bright and too close to residential neighborhoods, but it waited nearly three years before doing so to the chagrin of the critics of digital billboard signs. Naturally, all of Rauner's signs were exempted from the new regulations, although enforcement action has been taken against a couple after aldermen complained that proper approvals weren't obtained for the signs. Novak says the Rauner's signs are 40% larger than what the current regulations allow. Rauner's signs located in neighborhood business districts are also larger than what current regulations allow, and he has signs less than 125 feet from residential neighborhoods. Emanuel's campaign committee returned a pair of $5,000 campaign contributions it received from two of Rauner's business partners shortly after the new regulations went into effect. The Chicago Combine as the Chicago Tribune's John Kass describes the relationship between Democrats and Republicans in Illinois is alive and well.

Colts Let Player Go Following Drunk Driving Arrest

Da'Rick Rogers. (Provided Photo/Marion County Jail)

The Indianapolis Colts wasted no time in releasing wide receiver Da'Rick Rogers from the team following an early morning arrest for drunk driving. Rogers was stopped by IUPUI police early this morning following the Colts blow-out win over the Tennessee Titans yesterday for suspicion of driving while intoxicated. Rogers' blood alcohol level registered between .08 and 0.15 according to the arrest record. The Colts management announced their decision to release Rogers from the team this afternoon. Ironically, Rogers was released by the Titans before he joined the Colts after he failed three drug tests. Colts owner Jim Irsay received a 6-game suspension and a $500,000 fine by the NFL after he pleaded guilty earlier this month to operating a vehicle while under the influence of controlled substances.

Ballard Administration Blames Council For Failure To Fix Pothole-Riddled Streets

I'm not sure why Mayor Greg Ballard needs so many high-paid, full-time people being paid at taxpayers' expense to serve as spokespersons for him. The Indianapolis Star pretty much writes press releases for his administration on a daily basis and calls them news stories. City beat reporter John Tuohy has a story explaining why so many streets riddled with potholes from last winter's harsh weather remain unrepaired despite the council approving $24 million for emergency repairs last spring. In short, it's all the council's fault.
This summer’s rocky ride on pothole-strewn streets could get even bumpier next year.
Streets were ravaged by the record-breaking sub-zero weather last winter. The cold froze the ground for long periods, and when it thawed, water seeped under surfaces, causing them to fall apart.
City officials said Wednesday that none of the “worst of the worst” streets targeted for repairs with $24 million in emergency funding has been fixed yet. And only about 15 percent to 20 percent could be revamped before the construction season ends.
That means yawning, leftover potholes and those that have been patched could resemble lunar craters when spring rolls around next year.
Blame it on the sometimes slow wheels of the legislative process and a bit of politics.
“There is no way to get 200 lane miles resurfaced in one month,” said Stephanie Wilson, a spokeswoman for the Indianapolis Department of Public Works. “All things being perfect, we expected to get 15 to 20 percent done.” . . .
Republican Mayor Greg Ballard’s office said the council moved too slowly to approve the 200 lane miles of repairs to get all the roads done this year.
“They waited for months to pass the funding, so late in the construction season, that DPW can’t guarantee they’ll get them all fixed,” said mayoral spokesman Marc Lotter. “The council waited while playing games with the money.” . . .
Of the streets targeted with the $24 million, contractors have been hired to repair just four stretches so far, with the other 125 segments expected to be bid out by Oct. 16.
The department has received guarantees that the first four stretches will be completed by year’s end. They are:
• Washington Street from Southeastern Avenue to Emerson Avenue. 
• Westfield Boulevard from Meridian Lane to Kessler Boulevard East Drive.
• Westfield Boulevard from 75th to 79th streets.
• Kessler Boulevard from Illinois Street to Allisonville Road.
Department Director Lori Miser said council members seemed to underestimate how long it takes to line up firms for construction projects — a process that can take four to six months . . .
One of the biggest complaints I've heard is that the City has repaved certain streets repeatedly over the years that weren't in need of repaving work at all while ignoring streets that have received nothing but patchwork repairs for more than a decade. Leah Orr is quoted in the story as asking why North Alabama Street near downtown was repaved yet again despite being in relatively good shape. Miser told Touhy that it was scheduled as part of DPW's regular maintenance plan and was not included in the emergency repair list. That should tell you everything you need to know. If you live on a street that hasn't been repaved for a very long time, it's not because the City lacked money for the repairs; it's because the administration had other spending priorities. When the administration spent the hundreds of millions in Rebuild Indy money like drunken sailors, it made sure that every street or sidewalk that was anywhere near the downtown area was repaved or rebuilt for the umpteenth time just to impress the out-of-town folks coming into town for the Super Bowl.

If someone wanted to complain about something, they should be complaining about the piss-poor job the contractors hired by the city to perform the repaving work do. I don't know how many times I've noticed a newly-paved street have standing water every time it rains because the contractor didn't take the time to do the work right so water could drain into the storm water drains, which causes the pavement to deteriorate more quickly. As long as the contractors are making their pro-rata share of contributions to the mayor's campaign committee, the contracts will keep flowing regardless of how poorly they perform their work.

Sunday, September 28, 2014

Workers Still Reeling From Sen. Brent Waltz' Failed Business

State Sen. Brent Waltz' (R) personal affairs are becoming a public issue for him again. Problems surfacing from a failed business he founded in 2003 with four other men continue to work its way through the legal system, and it doesn't paint a pretty picture for Waltz, who stands accused of defrauding former workers of the company out of hundreds of thousands of dollars of wages owed to them when the business closed in 2009. The litigation is the subject of a front-page story in today's Indianapolis Star titled, "Did Sen. Brent Waltz fail to pay his workers?"

The company in question is Indianapolis Diversified Machining, which occupied space at the former United Airlines maintenance hub at the Indianapolis International Airport. Records obtained by the Indianapolis Star show that Waltz formed the company with four former United Airlines employees--Carl Jacobson, Paul Schnulle, Tim Tosh and Tony Shevchenko. Each owned a 20% stake as shareholders of the company. Records showed Waltz served as a director and its chief financial officer. Despite corporate records showing otherwise, Waltz told the Star's Tony Cook that he only had an option to purchase shares through his investment firm, The Baron Group, was not a director or officer and only acted as a business advisor to the company. He was paid $68,000 a year for his services.

What is clear is that when IDM closed its doors in 2009, more than 40 employees were owed more than $220,000 in unpaid wages. Marion Superior Court Judge Tim Oakes has already entered a partial summary judgment against IDM for the unpaid wages, double that amount in liquidated damages and $50,000 in attorney's fees, or a total judgment of more than $720,000. It's interesting that Sen. Waltz, who is the ranking member of the Senate Pensions and Labor Committee, and some of his Senate colleagues supported legislation this year that would have gutted that very statute--the Wage Payment Law--that allows employees to recover treble damages and attorney's fees from their former employer for unpaid wages. The Senate later killed the bill after it passed the House only after this blog began sounding the alarm bell about the harmful effect it would have on employees who are beat out of their wages by unscrupulous employers.

What's disturbing is the claim that IDM made payments to Waltz of at least $148,000 after it told the employees it didn't have money to pay them when it shut its doors. IDM also failed to pay withholding taxes to the federal government despite withholding the money from the employees paychecks according to the Star. Waltz claimed the money paid to him was for investment banking services and ongoing services related to the company's closure and efforts to sale it. Waltz told the Star it was not his decision to prioritize payments to him over payment of the workers' unpaid wages and taxes owed to the federal government. Issues yet to be resolved in the ongoing litigation include fraud and RICO charges against Waltz and the Baron Group since it will be next to impossible to collect any of their judgment from the failed IDM.

The Star's story today neglects to mention the earlier problem detected years ago when former employees of IDM attempted to apply for unemployment benefits. WRTV's Rafael Sanchez reported back in April, 2009 that the former employees learned IDM had never paid into the state's unemployment insurance trust fund and were ineligible to draw unemployment benefits. When Sanchez contacted Waltz at that time, he told him much the same he is now telling the Star's Cook--that he was only a financial advisor who helped start the company. He insisted he had nothing to do with the day-to-day operations of the company. "I am absolutely appalled that the company did not pay these employees," Waltz told Sanchez. "I am doing everything I can to make sure people get paid the money they deserve."

Saturday, September 27, 2014

Star's Tim Swarens Starting To Like Pence Because He's For Pre-K Education

Former U.S. Rep. Mike Pence consistently opposed funding for Head Start, a federal program that provides early childhood education for children who come from low-income families as a member of Congress. Not unlike Paul's conversion on the road to Damascus, Gov. Mike Pence had a change of heart and now thinks the state should become involved in funding pre-K education for low-income children. The Indianapolis Star's opinion editor, Tim Swarens, now has glowing things to say about Pence, in sharp contrast to his threats to unleash a brutal public assault on any member of Indianapolis' City-County Council who dares to stand in the way of supporting Mayor Greg Ballard's plan to match funds being provided to Marion County under a pilot program by raising property taxes through the elimination of the homestead property tax credit. In a column titled, "The Evolution of Mike Pence," Swarens talks about Gov. Pence "at his best."
Indiana’s first-term governor stood before a couple of hundred educators, lawmakers and policy wonks in a state government center auditorium Wednesday morning to reinforce the critical importance of early childhood education, what he described as “the antidote for the toxin of poverty.”
He spoke with passion about the value of “unleashing the potential in one little boy, one little girl” and closed with a personal story: the journey of one at-risk child who landed in his wife Karen’s classroom years ago and later became a teacher herself. “She calls Karen her ‘other Mom’ today,” Pence said.
It was a surprising talk to mark the launch of a surprising policy achievement — a preschool pilot program designed to serve hundreds of low-income children in five counties, including Marion.
Surprising because, as Pence acknowledged later in an hour-long conversation, early childhood education didn’t make his otherwise exhaustive list of 2012 campaign proposals, which he called, incessantly, his “Roadmap for Indiana.”
Surprising also because Pence started with a bias against public-funded preschool.
“I came from the mindset that federal Head Start doesn’t work. That it doesn’t achieve lasting results,” Pence said after the speech, as we strolled from the government center to his Statehouse office. “But it was a learning experience for me as I traveled the state in 2013. I sat on the carpet with the kids, and I talked to people like Ted Maple at Day Nursery. I began to understand the importance of early childhood education in overcoming the effects of poverty.”
Swarens describes in his column a former congressman who was "predictably ideological and partisan, an affable knife-wielder for the party who could sit before the Fox News cameras and slice up Democratic opponents without breaking his smile." Swarens likes the new Mike Pence because he's now "for the common good" and wields an ideological knife the "edges [of which] aren't as sharp these days." Swarens assures us that Pence is still "a proud conservative" who is "no longer hemmed in by a rigid ideology that is the enemy of practicality." Words of praise for Pence all because of his support for pre-K education, eh?  Very strange.

Meanwhile, across town at a radio station, talk show host Amos Brown interviewed some people yesterday who run Family Development Services ("FDS"), a nonprofit organization that administers the Head Start program in Marion County. You mean there is already an early childhood education program in Marion County for children growing up in low-income households? There sure is. It's funded entirely by the federal government, and it's been around since the late 1960s. According to FDS's annual report, it spends close to $16 million a year providing early childhood education to about 2,500 children at nine community learning centers across the city. That comes to about $6,400 per child.

Mayor Ballard's plan to provide about $5 million a year to match the state's contribution will supposedly reach about 1,500, or 25% of the estimated 6,000 children living in poverty, with early childhood education opportunities. Ballard wants to give the money to the United Way to direct to providers of early childhood education, presumably preschools like the Day Nursery favored by the elites. Supposedly the wrap on FDS' pre-K education is that it doesn't provide higher level education to the children enrolled in the full-time and part-time programs, a fact disputed by the representatives of FDS who appeared on Brown's radio show. Their annual report says their education programs align with the state Department of Education's School Readiness Goals, along with nationally-recognized assessment tools.

By eliminating the homestead credit to fund the Pence/Ballard pre-K education program, the City of Indianapolis will collect more than $8 million a year in additional property taxes, while the City's public schools will lose a little more than $5 million a year in property tax revenues used to pay for buildings and transportation. It is peculiar that the Pence/Ballard pre-K education plan is by design intended to compete against the existing, 100% federally-funded Head Start program that has been around for decades at the same time it threatens to take away money from our public schools and other local governments. It gives one the impression that it has nothing to do with ensuring that low-income children receive early childhood education opportunities; rather, it's all about which organizations are the recipients of scarce public resources, particularly when education is not even the constitutional or statutory obligation of municipal government, which seems to be doing a pretty lousy job as it is taking care of basic services to the vast majority of residents who reside outside the mile square that encompasses downtown.

Friday, September 26, 2014

Told You So, Indianapolis Can't Deny Public Dislosure Of Criminal Justice Center RFP

Indiana's Public Access Counselor agrees with me that the City of Indianapolis' claim that it can deny public disclosure of the Request for Proposals ("RFP") that it issued to three groups of bidder vying for the right to construct a more than half billion dollar criminal justice center for the City through a public-private partnership agreement until the bidding process is completed and a winning proposal selected is specious. The IBJ's Kathleen McLaughlin made a public request for the RFP on July 22, 2014 to the City's Office of Corporation Counsel. Although the OCC acknowledged receipt of her request, it failed to respond to it. McLaughlin filed a complaint with the Public Access Counselor on August 19, 2014, to which she received an informal response on September 24.

Writing on behalf of the OCC, the City's public access counselor, Samantha DeWester, told Luke Britt, the state's Public Access Counselor, that it had not denied McLaughlin's request. "[H]owever, they will be doing so with a formal denial including a citation to why they feel it can be withheld," Britt added. "Based on their response, they will be asserting a discretionary privilege due to the RFP still being in negotiation, and a confidentiality provision as the RFP contains trade secrets."

Britt agreed that response-related documents produced by the competing vendors in response to the RFP could be withheld pursuant to state law until the negotiations are concluded. "RFPs are generally non-negotiated instruments," he added. "I am not necessarily compelled by the argument an RFP itself is under negotiation . . . After the bidding process is over, terms and conditions may change, but the public request for proposal would not be changed by negotiation of a final contract."

Britt also could not understand OCC's argument that the RFP could be shielded from disclosure because it contained "trade secrets" that are protected from disclosure under the state's access to public records law. This argument is premised on the OCC's contention that it contains architect's blueprints, plans and drawings. "If an RFP sent out into the marketplace does indeed contain trade secrets, it stands to reason the secret is out once it goes out to potential contractors." Britt adds that "secrecy is inherently compromised in an RFP."  If this RFP truly contains trade secrets, it would be a first in the United States. How an attorney could even make that argument with a straight face is beyond me.

DeWester's response letter to Britt repeated what was told to a City-County Council committee earlier this month that no final RFP document existed as it was still being negotiated even as the City has been in negotiations with the three bidding groups since last April. "[T]he RFP is still under negotiation," DeWester wrote. "Currently, the RFP has been amended and will continue to be amended while negotiations are still in progress." That of course is nothing but a sham argument intended to completely circumvent state law requirement that an RFP be made available publicly once it is issued by a governmental body. Sure, an RFP can be amended after initial discussions with potential offerors, which can easily be accomplished by making available to the public questions posed by offerors, the City's response thereto and any revisions to the initial RFP document made as result of those discussions, while still allowing the actual proposals of the offerors to be withheld from public disclosure until the negotiation process in concluded. Only by following those steps can the public and the competing vendors know that all were accorded fair and equal treatment during the bidding process.

Britt's letter at this point is not a formal opinion since the City of Indianapolis has not yet supplied a formal legal response to McLaughlin's request. By the time he gets around to it, the City will have already concluded its discussions and selected the winning bidder, which it plans to have done in November. Here's a word to two of the bidding groups. I don't know how much time and money you have committed to this proposal, but you should know that the City already knew in advance to whom this project was going to be awarded. This is a sham process being conducted in the dark to give the other two bidding groups and the public the impression a competitive bidding process is being conducted when nothing could be further from the truth. You are dealing with one of the most corrupt cities in all of America. This project is being undertaken to line the pockets of a handful of political insiders regardless of how much damage is inflicted on the public or how great the costs are to the taxpayers of this city.

As I previously pointed out, the Hoosier State Press Association with the strong backing of the Indianapolis Star was responsible for the law that is currently on the books requiring public disclosure of RFPs undertaken for a build, operate and maintain project through a public-private partnership to prevent important public projects from being undertaken in secrecy. The Indianapolis Star under the ownership of Gannett could care less about transparency in this process. It has already bought into the idea that a public-private partnership is the preferred route despite the fact that it will cost taxpayers much more in the long run than a project built, operated and maintained by the City-County government. If the Ballard administration decides it can thumb its nose at provisions of the law intended to provide transparency to the process, the Star could care less, along with most of the other media in this town.