Phantom attorney behind Elkhart sewer ordinance may scuttle issue
Posted: 08/15/2013 at 4:57 pm
By: Dan Spalding
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David Henke (Truth Photo By J. Tyler Klassen)
Republican councilman David Henke’s ordinance was prepared with the help of an outside attorney after the city’s chief legal counsel refused to assist.
Henke has declined to identify the attorney, who he said did the work free of charge.
On Monday, Aug. 15, city attorney Vlado Vranjes filed a public records request on behalf of Moore.
Henke contends the administration wants to know the attorney’s name, but Vranjes is seeking all details related to work involving preparation of the ordinance.
The request was sent to Mary Jo Weyrick, the administrative assistant to the city council. She responded with a memo to Vranjes explaining that she had no records related to the ordinance and Vranjes replied saying it was directed to Henke.
Henke claims there was virtually no paperwork involved.
Moore and Vranjes contend Henke’s ordinance may not stand up in court if it become city policy.
Vranjes said in an email to The Elkhart Truth that he wants to discuss details of the ordinance with the attorney.
“I am willing ... to entertain discussion on the legal viability of the proposed ordinance with the attorney that drafted this Ordinance, but Councilman Henke is preventing any type of discussion with the attorney that drafted it,” Vranjes said.
“Councilman Henke is unable to answer questions about the legal foundation and reasoning of this Ordinance. This is important because if this Ordinance takes effect, the city taxpayers will have to pay the legal expenses for a court to ultimately decide the validity of this Ordinance.”
Vranjes added, “Until he can produce sufficient legal justification supporting (the ordinance), the administration will rely on the legal opinion that I have provided to the Mayor.
Henke, though, said he doesn’t see any reason to turn the name over and hinted that Moore wants the name for vindictive reasons.
“There’s no point to it in process, but he does want to know who to blame,” Henke said. “There’s no reason that that name matters. It’s a well-written ordinance. It was done by a professional, municipal attorney from the state of Indiana and that’s all we need to know.”
Henke said he doesn’t have permission from the attorney to reveal the name and that he had limited communications with the attorney for a reason.
“I had no direct contact,” Henke said. “We were smart enough to know Dick is a very vengeful person.”
Asked about the possibility of negotiating with Henke directly, Vranjes said Henke’s lack of legal training and understanding on the “legal viability of the Ordinance would not suffice.”
Henke continues to express dismay that city attorneys would not help draft the legislation.
Vranjes said last week he’s more than willing to work with council members on issues where there is a common agreement with the mayor. But, he added, he works at the pleasure of the mayor and that such cooperation is not possible when the issue runs contrary to what the mayor is seeking.
Henke argues city attorneys who are paid with city tax dollars should be available to city council members.
Henke’s ordinance was adopted by the council Thursday, Aug. 8, by a 5-4 vote.
Moore immediately said he would veto the bill. If that happens, council would have an opportunity to override the veto, but such a move would take six votes.
The ordinance has been forwarded to Moore, who can either sign it or veto it.
If council is unable to override such a veto, Moore said the old compact sewer ordinance that relies on a 75 percent assessed value calculation would be re-established within weeks.
Commercial customers vehemently oppose the old ordinance and contend it would cause their sewer rates to skyrocket.
During the past eight months, Moore offered three compromise proposals, including his latest version, which scaled back the assessed value formula to 35 percent.
The commercial compact policy serves customers outside of city limits. The compact fee is viewed as a payment in lieu of taxes.
Business owners outside of the city as well as most Republican council members say they prefer a formula based on usage.
Henke’s plan would establish a 15 percent surcharge based on usage.
The dispute began last November when council adopted a plan sought by the city to move 75 commercial customers from a sewer service agreement to the compact policy that 63 other companies have been paying for years.
Under the sewer service agreement, customers paid 300 percent of the city rate. Payments under the compact policy vary greatly, but are often believed to be more costly than the sewer service agreement rates.
Henke’s ordinance would take affect Jan. 1 to allow for time for a rate study and public hearing.