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Friday, April 14, 2017

Ind. Gov't. - New PAC opinion on access to county records on a law firm engagement; how would the $20/hour fee have impacted this request?

Here are quotes from a 2-page opinion of the Public Access Counselor from March 27, 2017:

Killbuck Concerned Citizens Association (“KCCA”) since 2006 has made multiple requests to the Board for documentation regarding the representation of the law firm now known as Bingham, Greenebaum, Doll, LLP (“Firm”). The most recent request dated November 17, 2016 requests the following: “Any and all meeting minutes in which discussion and/or approval of the retention of the firm dated prior to December 31, 2006 with original signatures of parties approving.”

This search for documentation of the Firm’s retention extends back to 2006. It culminated with a May 24, 2016 response from The Board’s attorney stating, “I have closely reviewed all Commissioners minutes from 2006 until this date, and find no reference to the authorization of hiring [Firm].” The Complainant therefore contends the retention of the Firm was unlawful and that minutes would have to exist memorializing a final action of the Board authorization the retention. * * *

Engagement letters between public agencies and law firms are typical documents which exist when a contractual agreement for representation is executed. Nothing in the law mandates this documentation, however, it is best practice and more often than not, it is indeed created. Likewise, when a public agency hires a firm, final action in the form of a vote at a public meeting is standard practice. It stands to reason documents exist memorializing this transaction and therefore I share the Complainant’s skepticism no such record was ever created and a large firm would commence representation without an engagement letter.

It appears as if the Board’s current county counsel has searched the Board’s meeting minute archives and can find no indication of such an authorization. The Board did invite the Complainants to manually inspect the meeting minutes for themselves, which is best practice when a request is generally too broad. The Board’s argument the original requests lacked reasonable particularity is well received. Some of the requests made since 2006 are merely requests for information and not a specific document. Based on the facts provided, however, the Complainants have provided sufficient information to pinpoint the document(s) they are seeking: an authorization from the Board to hire a law Firm (an engagement letter, fee agreement, contract etc.); and/or a meeting minute from 2006 indicating final action was taken by the Board to procure the Firm’s services. These are typical documents housed by public agencies in the ordinary course of business. Therefore, I am not compelled by the reasonable particularity argument in this case.

To the extent the Complainant asks this Office to find a violation based upon the non-existence of a record, I cannot do so. There is an inference documentation should exist, however, the law does not allow this Office to mandate the creation of this kind of record. Similarly, there is an inference a meeting minute should reflect a vote to hire the Firm on a fee-for-services arrangement. But again, if such an action was taken to retain the firm by a single Board member or another county attorney (as the Complainants suggest), such matters of procurement are beyond the scope of this Office’s jurisdiction. If authorization documentation does exist, poor record keeping and retention is not an issue unique to this situation.

One step that has not been taken to my knowledge, however, is for either party to ask the Firm for its records of engagement, invoices, or fee arrangements likely housed in its own files in-house. Copies of these documents would be public record albeit maintained by a third-party private contractor. Knightstown Banner v. Town of Knightstown, 838 N.E.2d 1127 (Ind. Ct. App. 2005). Based on prior experience, I am confident this particular Firm is well-versed in good record keeping principles and accounting best practices during the course of representing public entities.

RECOMMENDATIONS. To the extent that the Madison County Board of Commissioners truly does not have any documentation from the 2006 retention of the Firm in its files, it should request those records from that Firm and provide them to the Complainant within a reasonable time.

ILB: So this group has been trying since 2006 to obtain a public record, the contract between the Board of Commissioners and its outside law firm, or evidence of the contract's approval in the Board's minutes. The Board's counsel claims no such documents can be found. "The Complainant therefore contends the retention of the Firm was unlawful and that minutes would have to exist memorializing a final action of the Board authorization the retention." The PAC concludes that the Board: "should request those records from that Firm and provide them to the Complainant within a reasonable time."

My thought as I read this account of a very reasonable request for public records, that has been outstanding since 2006 and remains unfulfilled: How much would the concerned citizens group have been billed, at the rate of $20 per hour, to finally secure these engagement records?

Posted by Marcia Oddi on April 14, 2017 09:40 AM
Posted to Indiana Government