MARSHALL COUNTY — President of the Marshall County Council Jesse Bohannon and Vice President Tim Harman informed the Marshall County Commissioners of the Council’s agreement with Cender Dalton Financial Consultant and provided them with a copy of the annual service agreement during the Commissioner meeting Monday morning.
Bohannon said that the information was being presented in a “spirit of collaboration”; although approval from the Commissioners would not be required to contract for legal or administrative services by the Council.
Bohannon stated, “Therefore, pursuant to IC 36-2-3-6 (d), we are engaging the services of (employing) Cender Dalton as administrative personnel related to the performance of our function (to assist and advise us) in the budget process, in the personnel committee and elsewhere necessary and proper according to our peers and responsibilities under Indiana Code.”
Harman affirmed that the agreement is compliant with Indiana Code and noted the Council of Attorney Marcel Lebbin stated: “You (Council) have specific statutory authority to hire or contract. As with the Council Attorney, this is not subject to Commissioner approval nor does it require commissioner approval to make payments under the contract.”
Harman said that it was not the Council’s intent to be “confrontational.”
Commissioner Kevin Overmyer asked if it was the Council’s intention to discontinue a relationship with Waggoner, Irwin, Scheele & Associates (WIS) noting a recent expenditure by Marshall County in the amount of $50,000 to conduct a study to establish pay rates and job descriptions.
Harman denied the intent to disregard that relationship and said, “It is my understanding that the Personnel Committee is reaching out to them.”
Commissioner Stan Klotz noted that two items needed immediate attention by the Personnel Committee; one involved an employee at the Highway Department; and increasing hours for certain employees at the Marshall County Sheriff’s Department.
Auditor Angie Birchmeier Johnson clarified that neither concern required changing an actual job description, category, or salary – consultation with WIS was not needed for those two items.
Bohannon, who admitted that he was not on the Personnel Committee, repeated that the intention was not to abandon the previous work done by WIS, but to embrace this opportunity to take that work to the next level. “Not just looking at equity within the organization but at competitiveness within the marketplace; so I think that would be the intent.”
Overmyer asked if Cender Dalton Consultants would be creating the 2024 Budget; Bohannon answered that they would be participating in the budget process.
Since this approach is new, Overmyer questioned the need for additional consulting assistance since last year there was less than $1,000 difference between the income and expenses for the 2023 Budget.
Bohannon answered, “I think part of that is we’ve got basically all seven members of the Council have less than five years of experience in the process. We do have new leadership in the Auditor’s Office as well. We just think that an extra set of experienced eyes would be beneficial.”
Overmyer asked, “How much does this cost?”
Bohannon referred to the contract; and stated it’s hourly. “It’s all going to be based on how much needs to be done. We do believe that if you are steering a $33 million dollar ship, spending a few thousand dollars to make sure you are getting it in the right direction is a good investment.”
County Attorney James Clevenger disagreed with the assessment that Cender Dalton was under the Council’s purview to hire without Commissioner approval. He noted that the statute does allow for the Council to hire legal counsel, but questioned whether an independent contractor could be hired by the Council to provide the services being described. Clevenger said the Commissioners could hire consulting services for the Council; but he believed the Council did require the approval of the Commissioners for this agreement. Ultimately the Commissioners will have to approve the claim submitted by the Council.
Bohannon agreed that it was the Commissioner’s purview to approve legal claims; but challenged whether they could deny a proper claim based on whether they liked it or not.
Attorney Clevenger questioned whether it would be a legal claim if the consultant was hired without the statutory authority to do so in the first place.
Harman cited I.C. 36-2-3-6(d): The fiscal body may employ legal and administrative personnel necessary to assist and advise it in the performance of its functions and duties. [emphasis added].
Harman asked what in that language prevents the Council from hiring an advisor. Attorney Clevenger replied that Cender Dalton was not considered Administrative Personnel. Harman asked for a legal definition of administrative personnel that would exclude them.
Attorney Clevenger said that Administrative Personnel performs ministerial functions; and that the service agreement defines Cender Dalton as a Contractor.
Harman asked if Administrative Personnel advises the County Council on Fiscal Matters. “That’s a pretty high bar, in my opinion, because we are talking about a $33 million dollar budget.”
Attorney Clevenger agreed that it was important; but emphasized that the Statute does not permit the Council to hire a Professional Service Contractor.
Bohannon rebuttled stating that the Council’s Attorney says that it does.
Attorney Clevenger repeated that if the Council hires a professional but does not have the legal authority to do so; the Commissioners would have the legal authority to deny the claim when submitted.
Attorney Clevenger did not have the same argument against the Council’s authority to hire legal counsel; Bohannon noted that legal and administrative are noted in the same Indiana Code.
Harman said he believed that Attorney Clevenger was “splitting hairs” on the definition of administrative personnel. He asked Attorney Clevenger for statutory rulings or court cases to uphold his opinion.
Attorney Clevenger replied that he was just reading from definition of administrative personnel involving ministerial functions as opposed to a Contractor providing professional services.
Bohannon referred to the definition of administrative that was provided within the presentation to the Commissioners: administrative (adjective): 1. of or relating to the performance of a function. 2. of or relating to a government agency.
Attorney Clevenger noted that White’s Law Dictionary further defines administrative as ministerial functions.
Harman argued that an advisor, at this level, should be qualified. Harman said that they would just have to agree to disagree.
Bohannon emphasized that he was not requesting a vote on this today; as he believed it was clear that the Council was within their authority by statute; but wanted the Commissioners informed of how the Council will proceed in this direction. “I think that’s what’s best for the County.”
Attorney Clevenger offered to speak to Attorney Lebbin.
The informative update also cited I.C. 36-2-5-3(a)(4): The County fiscal body shall fix the compensation of officers, deputies, and other employees when compensation is payable from the general fund, county highway fund, county health fund, county park and recreation fund, aviation fund, or any other fund from which the county auditor issues warrants for compensation. This includes the power to hire or contract with persons to assist in the development of schedules of compensation.”
Attorney Clevenger advised the Commissioners that they could hire Cender Dalton to advise the Council if they desired to do so.
Commissioner Klotz emphasized that he wanted to ensure that the Commissioners comply with State Law. He has reached out to the State for additional guidance and would provide that information when a clearer interpretation is made available to him.
In a follow-up Bohannon confirmed that Cender Dalton Partners would be paid $275 per hour, Directors would be paid $160 per hour, Senior Associates would be paid $145 per hour, Associates would be paid $120 per hour, Consultants would be paid $100 per hour, Analysts would be paid $90 per hour, and Administrative Assistants would be paid $75 per hour. In that follow-up Bohannon estimated that the cost for Cender Dalton would be approximately half the cost that the County is currently paying Baker Tilly.
