President of the Marshall County Plan Commission David Hostetler approached the Commissioners during their regular meeting on Monday morning to seek guidance regarding the restrictions imposed by the County Council regarding legal fees.
Hostetler expressed the need for guidance because his presence is being requested by the County Council on Thursday; but the Plan Commission answers to the Commissioners.
Hostetler explained to the Commissioners that it had been his understanding that the Plan Commission was allowed to have legal representation at meetings; however the Council has recently imposed a restriction and has required Director Ty Adley to reach out for approval prior to spending money on legal fees.
Hostetler explained to the Commissioners that he and Adley review the agenda items before it is published. Now Hostetler feels he is in a challenging situation because now it is the County Council essentially directing what can and cannot be placed on the agenda based on what they approve or deny.
“To me that’s kind of a conflict of interest. That’s not who I report to – that’s not what I understood the job to be. I’m looking to you – the three of you – and your attorney – for advice. How do you want me to handle this?” asked Hostetler.
Hostetler informed the Commissioners that if they want him to cooperate with the restrictions imposed by the Council that he will submit to their authority but he wanted clear direction from them as they are the governing body that the Plan Commission answers to. “I want to know directly from you guys how this is supposed to be handled.”
Commissioner Kevin Overmyer asked Hostetler what reason he was given for the request that he attend the Council meeting Thursday. Hostetler responded that the reason was not made clear but he believed it had to do with his request of Adley to have the Plan Commission Attorney Derek Jones present at their last Plan Commission meeting which was not an expense pre-authorized by the Council.
Overmyer responded, “I think you have every right as President of the Plan Commission to have legal attorneys there. If you feel you need it – you should have it there. You have a contract with Derek Jones. If they don’t want to pay Derek then Derek can go across the street and sue them as far as I’m concerned because this is ridiculous.” Overmyer added, “This County is set to have all kinds of lawsuits filed against us just because of this reason because they are picking and choosing who you can talk to and who you can’t talk to – or who can come in and ask for a variance on property. This is ridiculous. You are your own body – an appointed body. You aren’t elected. This is truly ridiculous.”
Hostetler stated before all three Commissioners that if he cannot have legal representation at a Plan Commission meeting he does not want to have Solar or Battery Electric Storage Systems (BESS) on the agenda. He indicated that he feels caught between trying to spare the County from potential lawsuits if he refuses to put Solar or BESS on the agenda and sparing the County from potential lawsuits if the Plan Commission mishandles any situation for lack of legal counsel present at the meeting to guide them appropriately.
President Stan Klotz stated that from his experience serving on the Plan Commission in years past that he felt he had the right to legal counsel but also felt he needed to have the money to pay for it. “If I didn’t have the money to pay for it then I didn’t bring them in.” Hostetler responded if that’s the case he could not put Solar or BESS on the agenda.
Klotz added that he asked for a Moratorium more than once and it was not approved. “If we had a Moratorium in place you could have all these open discussions without a fear of legal repercussions until you worked everything out.”
Hostetler reminded Klotz that the Plan Commission only makes recommendations to the Commissioners; the Commissioners have ultimate authority including whether or not to impose a Moratorium.
Hostetler said his years of service on the Plan Commission have been on honor up until the last two years. He emphasized that everyone needs to be heard and stated that both sides should be heard. He added that his concern is that the result of all the disagreement will be that the County ends up suing the County. “To be blunt the County is going to be paying both sides of that legal and it’s just stupid. The County is going to be suing the County because we are not doing the job that we were appointed to do. Not what you wanted to hear.”
Attorney Jim Clevenger noted a State Statute that establishes powers and authority; the State is directing the Counties to deal with land-use issues. The Plan Commission is an a-political body appointed with both Republicans and Democrats to help make these decisions. They are given these powers and authorities to perform their duties by State Statute – one of which entitles them to an attorney. Clevenger noted that he could not see how the Plan Commission or the Board of Zoning Appeals (BZA) could avoid conducting business as designated by State Statute. He validated that ultimately the elected officials make the decision following the recommendations. He said in hindsight it would have been ideal if the financial needs for legal fees would have been predicted within budget – but entities do not simply close up business because they run out of money. Clevenger illustrated a difference between standard Department Heads and a Statutorily Established Commission required to continue business such as the Plan Commission and BZA. Clevenger validated Hostetler’s concern that by not conducting business as required that the County could be vulnerable to law suits.
Hostetler said, “Okay. I’ve said what I wanted to say. You are aware. I feel like I’ve done my responsibility.”
Commissioner Mike Burroughs stated, “I agree with this conversation whole-heartedly that the Plan Commission is being held hostage by the County Council. The President – if he feels that he needs legal representation – should be able to have legal representation to avoid the County and the Plan Commission and us from being sued. It makes sense to me but logic has gone out the window a long time ago.”
Overmyer repeated, “I feel as if you need representation at the next meeting – call Derek in and have him come in and we will just figure out how to pay him. Either one way or the other he’s going to get paid. He’s under contract.”
Hostetler said, “Okay.”
Klotz asked Overmyer to define the contract.
Overmyer said that historically there was enough money in the budget to pay for legal fees; with Solar and BESS more consultation has been needed. He added that those relevant legal fees would have been reimbursed if Solar was approved. Overmyer concluded that either way, the legal fees will need paid and that President Hostetler should be able utilize counsel as needed.
Klotz stated, “I want to go on record saying that you need to have the money when you hire the guy. But, that’s just – I’m sure it’s two to one.”
Overmyer answered, “They had the money when they hired the guy but there’s been so many things going on at the Plan Commission level – “
Klotz repeated that with a moratorium none of this would be a continued concern.
Overmyer said there won’t be a moratorium until January 1. “That’s all you want.”
Hostetler thanked the Commissioners for their guidance returned to his seat.
