By Kristine Brite
AVON — The town council here slammed the drawer shut on two council members hoping to take a peak at legal documents in the town attorney’s office.
The issue came up during a May 10 meeting when the council heard updates from Town Attorney Dan Taylor regarding council member Kathryn Miller’s lawsuit against the Town of Avon and Mike Rogers, in his capacity as council president.
By a vote of 3 to 2, the council moved to disallow access to the files. Miller and Eva Yackey voted to allow access to the files.
“Until the court orders you to open your files, Mr. Taylor, I think they should remain shut,” Rogers said.
Miller brought the suit against the town, claiming that a closed executive session broke the Indiana Open Door law. Executive sessions are allowed for only a few exceptions such as discussion of litigation and certain personnel issues.
During the executive session, Miller claims Rogers announced that he was removing Jeff Ritorto as police chief and naming Jack Miller as his replacement. The power to appoint or remove a police chief resides solely with the council president.
Miller protested the meeting, saying the discussion was not appropriate.
Town Attorney Dan Taylor said the 20 to 30 file boxes in his office, regarding not only the lawsuit but all matters he’s worked on for Avon, belong to the town. Any request to look at them, he said, should go in front of the entire council.
He told the council he couldn’t recall another such request and had other apprehensions about allowing Miller’s request to access as many of the files as she wished.
“It’s not usual, in my experience, that you have a member of the town council sue the town council,” Taylor said. “That’s a complication.”
In a phone interview after the meeting, Miller she wanted to see the files because she feels it’s her right as a client.
Allan Yackey, Miller’s attorney, said he was surprised that Taylor hasn’t had other requests from town or city councils. He said he has such requests from municipalities he represents and feels ethically bound to grant them.
If litigation weren’t pending, Taylor said he wouldn’t have a problem with Miller looking at the files.
“Generally, when we’re in litigation with other parties, we don’t allow them to look at my files,” he said.
Allan Yackey said he expects his client to pursue the issue.
“The question is: What’s in the files?” he said.
Eva Yackey then made a request to look at the files, saying she wasn’t involved in the current legal action.
Greg Zusan, vice-president of the council, made a motion to deny Yackey access to the files as well, saying no town staff or council member should have access to the files right now.
Eva Yackey argued that council members should be able to look at any files that belong to the town.
“I’m appalled,” she said. “I’m not very proud to be part of this group.”
In response, Zusan said he felt that Miller should step down from the council, at least until her lawsuit was concluded. He went on to extend the invitation to Yackey.
Both women said the had no intention of resigning.
Council won’t settle
In other matters involving the lawsuit, the council voted 3-2 to proceed with the suit and not enter into settlement talks. Miller and Yackey were again the minority vote.
Taylor brought the issue to the council’s attention, saying he wanted them to know the options. He said the town is beginning depositions in the case.
“Because depositions are expensive, and they’re coming up, I want to know if council wants to have (settlement) conversations,” he said.
Taylor estimated that the town has spent about $5,000 on the suit already. Depositions cost about $50 an hour to have the court reporter present, plus the $125 hourly fee he charges Avon.
Should Miller be successful in her lawsuit, he said the town would likely be responsible for her attorney fees as well.
Eva Yackey said she thought the town should at least consider entering discussions.
“My position is, we’re wasting the town’s money,” she said.
Zusan countered that if money was a concern, Miller should drop her suit.
Taylor said the trial is scheduled for 1 p.m. June 13 in Hendricks Circuit Court. He said it could take more than one day and several town staff members would be involved.
“The council will need to be aware that we might be a little short handed at the Town Hall that day,” he said.
kristine.brite@flyergroup.com
