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Mayor Richard "Dick" Moore 2011 (Photo Supplied) (PHOTO SUPPLIED)
Complaint filed over request for Elkhart city records
Posted on June 16, 2013 at 1:00 a.m. | Updated on June 16, 2013 at 7:17 p.m.

ELKHART — A new complaint against the city of Elkhart has been filed with Indiana’s Public Access Counselor — this one over the availability of public records.

The paperwork was filed by Melvin Bontrager on behalf of business owner David Schemenauer and a group of businesses who have become vocal critics of Elkhart’s compact fee policy and Mayor Dick Moore. They are seeking details from the city on an arrangement with Ontwa Township in Edwardsburg, Mich., where the township oversees sewer service that is treated by the city of Elkhart.

The complaint was filed last week and came at the same time the public access counselor offered an advisory opinion on a complaint filed by Elkhart city councilman Brian Dickerson. In the ruling, the state said Moore’s sewer task force did not violate the Open Door Law.

The business coalition has made several requests for information from the city related to city sewer service as they continue to question policies for both commercial and residential sewer customers. While chiefly concerned about the commercial compact policy, the group has aligned itself with Valley View residents, some of whom have declined to sign a new residential agreement with the city.

The complaint with the public access counselor came after the city declined to provide information about the existence of an annual credit Ontwa Township may or may not receive from the city of Elkhart for capital expenditures, according to Schemenauer.

The city declined to provide information because it “is currently in a contractual dispute with Ontwa Township,” according to a letter from city utility attorney Margaret Marnocha.

Schemenauer said he’s not aware of any legal dispute.

The disagreement led to a terse back and forth exchange between Bontrager and Marnocha, according to paperwork Schemenauer provided The Truth.

“If she’s claiming this is protected work, then there has to be a legal basis for which that would be part of a dispute that the other side is totally unaware of,” Schemenauer said.

Meanwhile, the business coalition filed two more requests recently.

They’re seeking all communications between the Moore administration and members of a task force, which recently wrapped up efforts to provide the city with recommendations on how to resolve a dispute over the city’s commercial compact fee policy.

The group is also asking the city to disclose how much money Valley View residents have paid in excess of city rates over the past 12 years, ending in 2012.

The city’s legal office replied to the group by saying it is working on the task force communication requests, but that the requested figures about Valley View are not available.

In a June 12 letter to Bontrager, city attorney Vlado Vranjes wrote, “As you may know, the Indiana Access to Public Records Act does not require that a public agency create a public record, but provide access to records that exist ... The records you request do not exist.

Schemenauer said he believes the city is “stonewalling” and that the group’s request for information is on-going. He said he has come to realize records requests have to be worded very carefully and that they’re learning more about the process as they delve deeper.

Moore, in an e-mail to The Truth, connects the earlier investigation to the private meetings of the task force to the new one and believes the complaints are politically driven. He said he believes the city has provided what it should legally.

“We believe that this is just an extension of Mr. Dickerson’s complaint, since that opinion was not favorable to Mr. Dickerson,” Moore said.

Moore added, “We spend a lot of valuable time answering these political allegations which are always proven as false. It is a complete waste of the taxpayers time and money. Our time is much better spent conducting the business of running the City on behalf of its citizens.”

Dickerson has made several requests for information from the city, but added that he is not coordinating efforts with the business coalition.

Regardless of who makes the request, Dickerson said, the city is obligated to provide information to the public.

“I do not believe that government’s time is better spent serving something other than its people,” Dickerson said.

Moore said the city will offer a response this week to the complaint filed with the public access counselor’s office.

The public access office will investigate the issue by seeking information from both sides and will then offer an advisory opinion. The opinions do not carry any enforcement abilities and are offered as a guide for elected officials and the public.

A final opinion is expected within a few weeks.

In the task force ruling, the state counselor, Joseph Hoage, determined that since the task force was reporting to the mayor, it did not fit the definition of groups that are subject to the Open Door Law.

Hoage said two affidavits submitted by the city were a deciding factor. In those affidavits, the city attempted to discredit part of a letter Moore and city council president Ron Troyer sent to utility customers in which they suggested the task force would provide the council with some advice.

The affidavits suggested the letter should have indicated recommendations were intended for the mayor and not the council.