By Kristine Brite
AVON — Anyone attending the town council meeting here last week may have thought they had mistakenly walked into a court room.
Council members debated several issues regarding a lawsuit filed by council member Kathryn Miller against the council and Mike Rogers, acting in his capacity as council president.
Miller brought the suit against the council in January of this year, contending an executive session Jan. 2 had violated Indiana’s open door law.
Three resolutions brought in front of the council spurred the debate. And council members even argued about the merits of making those resolutions.
“This is not what we use a resolution for,” Miller said in response to the final resolution laying out a proposed settlement agreement.
Town Manager Tom Klein, however, said Town Attorney Dan Taylor has always urged members to make resolutions when giving town staff guidance or for setting policy.
The council tabled the first resolution and called a special meeting, with a date and time yet to be determined, because members had questions for Taylor, who wasn’t at the meeting. That resolution authorized hiring an attorney to represent council member Eva Yackey during a deposition.
The town requested her deposition after hearing Miller’s deposition. The resolution contends that Yackey requested an attorney during a scheduled May 14 appearance, which is something she denies.
“I did not request an attorney,” Yackey said. “I have an attorney. I’m the only one that’s been discriminated against.”
Yackey was referencing the fact that council member Greg Zusan, Rogers, and council member Beverly Austin were all deposed by Miller’s attorney without a need to hire an attorney.
Because she wasn’t at the executive session in question, Yackey wondered why Taylor might want to depose her.
Miller asked her fellow council members if the request stemmed from the fact that Yackey is her neighbor and is married to Miller’s attorney, Allan Yackey.
The second resolution of the evening, which the counsel passed 3-2 with Miller and Yackey voting against, allowed legal counsel to control strategy regarding the suit.
The resolution states that meeting in an executive session to discuss the case is impossible because Yackey supports Miller’s suits and because Yackey is married to Miller’s attorney. Yackey took offense to the resolution, saying this was Taylor’s opinion and not hers.
She brought up a Feb. 9 settlement offer, later obtained by the Hendricks County Flyer, claiming that only Rogers saw the offer.
“Dan Taylor is not running the lawsuit,” Yackey said. “All he’s doing is costing the town money.”
Klein said Taylor did share the settlement at an earlier meeting, and that acting before entering discovery would have been irresponsible.
Miller interjected her objections to wasting taxpayer money in making these resolutions.
Zusan responded that she should withdraw her lawsuit if money were a concern. Miller responded with her reasons for the suit.
“If you can’t acknowledge (a violation) happened and it’s wrong, then it’s going to happen again,” she said. “So, of course, I’m not going to drop this lawsuit.”
The third issue involved possible settlement. During the meeting, Darren Chadd, Taylor’s law partner, said many areas had been compromised, except for attorney fees for Allan Yackey.
After the meeting, Allan Yackey disagreed with that statement. He said the town’s unwillingness to admit to guilt was the major sticking point. Settlement offers between the two parties passed hands as late as the afternoon before the meeting and talks are still ongoing, he said.
The council voted to void the motion on the settlement after Chadd pointed out it wasn’t up to date.
After the vote, the debate continued. Zusan said he felt it was politically motivated to attack Rogers.
“From what I’ve been told, it’s a frivolous lawsuit,” he said. “At the end of the day, I believe we’ve done nothing wrong.”
Miller disagreed, saying, “(The executive session) was planned to silence me. I was the only one there who didn’t know what was going on.”
A trial date in the matter is set for 10 a.m. June 13 in Hendricks Circuit Court. Klein said the town is prepared to defend itself in court, if necessary.
SIDEBAR:
Documents shed light
on executive session
According to court documents given to the Hendricks County Flyer by both sides in the lawsuit, both agree a meeting occurred. But they don’t see eye-to-eye on whether it was legal.
That session was tape recorded by Miller and a transcript provided to the Hendricks County Flyer by her attorney, Allan Yackey. Town Manager Tom Klein said the transcript was an edited version of what transpired during the executive session.
The session was called to discuss litigation strategy and matters involving an employee or employees, according to a meeting notice.
According to the transcript, after an explanation by Town Attorney Dan Taylor about the guidelines of an executive session and warnings to keep information discussed private, talk turned to litigation, including unemployment claims.
In her claim against the town, Miller claims the next discussion about employment of legal counsel for boards and commissions violated the open door law since it didn’t pertain to pending or threatened litigation.
Klein said the information was used as an example of what had happened in the past and how it might relate to pending litigation being discussed.
The two sides don’t argue about what happened next. Rogers announced his appointment of Jack Miller as new police chief, replacing Jeff Ritorto.
The town, according to pre-trial documents filed with Hendricks Circuit Court, contends Rogers told other council members out of courtesy.
In the pre-trial document, the town contends the announcement didn’t concern “public business” and that the open door law mandates meetings be open when they are for the purpose of taking action upon public business. The power to appoint the police chief rests solely with the council president.
Miller’s suit contends the “courtesy announcement” violated the open door law and that the notice posted regarding the meeting was also in violation.
kristine.brite@flyergroup.com
