State board takes issue with new Clark County ordinance

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Clark County Commissioner Les Young
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August 11, 2012

State board takes issue with new Clark County ordinance

Clark Commissioners’ re-establishment of IT fund cuts council out of claims process

By MATT KOESTERS matt.koesters@newsandtribune.com The News and Tribune Sat Aug 11, 2012, 03:10 PM EDT

JEFFERSONVILLE — When the Clark County Commissioners passed an ordinance re-establishing its information technology fund last week, the ordinance included a clause that cut the Clark County Council out of the process by which claims would be paid out of the fund.

It’s that same clause with which the Indiana State Board of Accounts now takes issue, and the county auditor says he washes his hands of any problems that arise from it. But the commissioners’ legal representation doesn’t see what the fuss is about.

Ordinance No. 30-2012 — which the commissioners passed at their regular meeting Aug. 2 — states that, “Pursuant to the provisions of [Indiana Code] 36-2-5-2(b), no appropriation from the Clark County Council shall be required to pay claims approved by this board from the IT Fund.”

“It’s money that comes in off of licenses and stuff, [and it] doesn’t go into the general fund. That counts under our discretion,” Commissioner Les Young said. “We just feel like we ought to be able to spend the money as we see fit, and not have to go to them [Council].”

The section of the statute cited by the ordinance states that money may be paid out of the county’s coffers only under an appropriation made by the fiscal body, “except as otherwise provided by law.”

“The statute says, ‘except as otherwise provided by law,’” County Attorney Greg Fifer told the News and Tribune in e-mail correspondence Thursday. “An ordinance has the same legal force as a statute.”

But Tammy White, SBA county office supervisor, disagreed.

“That’s the exact statute that says they have to have an appropriation unless the law specifically exempts them from having appropriation prior to disbursement,” White said.

The county’s information technology fund pulls in revenue from cable franchise fees and the money never goes to the county’s general fund. In order to pay claims with that money without an appropriation from council, the statute would need to state that the commissioners could do so.

“And it would need to be that specific,” White said. “It would need to say that it may be disbursed without an appropriation.

“... There is not an absence of statutory guidance on how to do this. You spend money only when you have an appropriation. We would take exception during an audit to them using home-rule powers to circumvent a statute that’s already in place.”

White noted that the SBA is an auditing agency and not a legal authority, and that the SBA’s position was not a legal opinion.

But for that reason, County Auditor Monty Snelling said that whenever the commissioners use the IT fund to pay a claim without an appropriation, he will refuse to certify the claim.

“Basically, I was told I can’t stop the claim, but that I can not certify it when I sign off on all the claims, because if I do, I’m responsible,” Snelling said. “Those are the instructions I have [from the SBA].”

Assistant County Attorney Bob Bottorff says the legality of the county commissioners’ decision comes down to the definition of the word “law” in the phrase, “except as otherwise provided by law.”

“Until we have a definitive case on that point, it’s up to each agency or each department to define how they see it, and there is case law out there that talks about how the term ‘law’ is different than the term ‘statute,’” Bottorff said. “The term ‘statute’ is more specific. The term ‘law’ is not. If the legislature had really wanted to limit it to just a statute, that’s what they would have done by putting it in there.”

When asked if the commissioners could theoretically put a similar provision in ordinances re-establishing other funds, Bottorff said he didn’t see why not.

“It’s my position, frankly, that they could do that,” Bottorff said.

This isn’t the first time that the commissioners have been warned about paying claims without an appropriation. An audit report covering 2009 commented on Ordinance No. 3-2007, which established the Clark County Adult Facilities Usage Fund with the provision that the commissioners need not appropriate funds from the county council. The report was filed by the SBA Jan. 7, 2011.