ILNews

Court rules on privatization, public bidding

Michael W. Hoskins
January 1, 2007
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The Indiana Court of Appeals ruled today that state officials violated the law by not adhering to the public bidding process when privatizing a Fort Wayne development center two years ago.

In Anita Stuller, et al. v. Mitchell Daniels Jr., et al., 02A05-0601-CV-22, the court unanimously reversed and remanded the case to Allen Superior Judge Nancy Boyer with instructions to hold a hearing to determine if a preliminary injunction should be granted.

The 27-page opinion points out that Judge Boyer misinterpreted a state statute governing bidding processes when ruling it didn't apply to an agreement between the state's Family and Social Services Agency and a Pennsylvania-based healthcare company in managing the Fort Wayne State Developmental Center, which housed developmentally disabled adults.

Filed in December 2005 against Gov. Mitch Daniels, Family and Social Services Administration Secretary Mitch Roob, and a third FSSA employee, the suit contends that administration officials ignored a state law requiring bids for a public-private agreement. The complaint stemmed from action earlier that year when Indiana entered a $3 million contract for 18 months with Liberty Healthcare Corp. to manage the center.

An employee, Anita Stuller, and her union, AFSCME Council 62, filed suit to stop the takeover of the facility and require the state to go through a public bidding process before giving control of the center to a private firm. But later that month, Judge Boyer refused to grant the injunction after reading another law authorized the FSSA to use "any procedure it deemed appropriate to acquire Liberty's services."

If that holding stood, the appellate judges wrote that it would practically nullify the provisions of Indiana Code § 5-23-5 in dealing with public-private agreements. Therefore, the trial court's decision "goes against the logic and effect of the facts and circumstances."

"In this sense, every operating agreement may feasibly contain a phrase or particular service which is better served by the unique qualifications of an outside vendor, thereby placing all contracts outside the purview of public-private agreements," Judge Patricia Riley wrote, joined by Judges Michael Barnes and Terry Crone. "Accordingly, based on the evidence before us, we conclude the agreement is properly characterized as a public-private agreement, subject to the mandatory public bidding process."

As the FSSA committed a clear violation of the public bidding procedures, the plaintiffs-appellants suffered irreparable harm per se, according to the court. Touching on whether a preliminary injunction would serve public interest, the court noted the agreement could be as high as $95 million in taxpayer money and used that to reinforce its holding on I.C. 5-23 and the bidding process.

"An abandonment of these requirements would result in a situation where the government is encouraged to grant part of its public duties to private entities without any inquiry from the public," the opinion says. "While we do not object to the government turning to private companies in a desire to minimize costs and to enhance efficiency and flexibility, public oversight is nevertheless statutorily mandated for contracts falling within the realm of I.C. § 5-22."
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  1. Falk said “At this point, at this minute, we’ll savor this particular victory.” “It certainly is a historic week on this front,” Cockrum said. “What a delight ... “Happy Independence Day to the women of the state of Indiana,” WOW. So we broke with England for the right to "off" our preborn progeny at will, and allow the processing plant doing the dirty deeds (dirt cheap) to profit on the marketing of those "products of conception." I was completely maleducated on our nation's founding, it would seem. (But I know the ACLU is hard at work to remedy that, too.)

  2. congratulations on such balanced journalism; I also love how fetus disposal affects women's health protection, as covered by Roe...

  3. It truly sickens me every time a case is compared to mine. The Indiana Supreme Court upheld my convictions based on a finding of “hidden threats.” The term “hidden threat” never appeared until the opinion in Brewington so I had no way of knowing I was on trial for making hidden threats because Dearborn County Prosecutor F Aaron Negangard argued the First Amendment didn't protect lies. Negangard convened a grand jury to investigate me for making “over the top” and “unsubstantiated” statements about court officials, not hidden threats of violence. My indictments and convictions were so vague, the Indiana Court of Appeals made no mention of hidden threats when they upheld my convictions. Despite my public defender’s closing arguments stating he was unsure of exactly what conduct the prosecution deemed to be unlawful, Rush found that my lawyer’s trial strategy waived my right to the fundamental error of being tried for criminal defamation because my lawyer employed a strategy that attempted to take advantage of Negangard's unconstitutional criminal defamation prosecution against me. Rush’s opinion stated the prosecution argued two grounds for conviction one constitutional and one not, however the constitutional true threat “argument” consistently of only a blanket reading of subsection 1 of the intimidation statute during closing arguments, making it impossible to build any kind of defense. Of course intent was impossible for my attorney to argue because my attorney, Rush County Chief Public Defender Bryan Barrett refused to meet with me prior to trial. The record is littered with examples of where I made my concerns known to the trial judge that I didn’t know the charges against me, I did not have access to evidence, all while my public defender refused to meet with me. Special Judge Brian Hill, from Rush Superior Court, refused to address the issue with my public defender and marched me to trial without access to evidence or an understanding of the indictments against me. Just recently the Indiana Public Access Counselor found that four over four years Judge Hill has erroneously denied access to the grand jury audio from my case, the most likely reason being the transcription of the grand jury proceedings omitted portions of the official audio record. The bottom line is any intimidation case involves an action or statement that is debatably a threat of physical violence. There were no such statements in my case. The Indiana Supreme Court took partial statements I made over a period of 41 months and literally connected them with dots… to give the appearance that the statements were made within the same timeframe and then claimed a person similarly situated would find the statements intimidating while intentionally leaving out surrounding contextual factors. Even holding the similarly situated test was to be used in my case, the prosecution argued that the only intent of my public writings was to subject the “victims” to ridicule and hatred so a similarly situated jury instruction wouldn't even have applied in my case. Chief Justice Rush wrote the opinion while Rush continued to sit on a committee with one of the alleged victims in my trial and one of the judges in my divorce, just as she'd done for the previous 7+ years. All of this information, including the recent PAC opinion against the Dearborn Superior Court II can be found on my blog www.danbrewington.blogspot.com.

  4. On a related note, I offered the ICLU my cases against the BLE repeatedly, and sought their amici aid repeatedly as well. Crickets. Usually not even a response. I am guessing they do not do allegations of anti-Christian bias? No matter how glaring? I have posted on other links the amicus brief that did get filed (search this ezine, e.g., Kansas attorney), read the Thomas More Society brief to note what the ACLU ran from like vampires from garlic. An Examiner pledged to advance diversity and inclusion came right out on the record and demanded that I choose Man's law or God's law. I wonder, had I been asked to swear off Allah ... what result then, ICLU? Had I been found of bad character and fitness for advocating sexual deviance, what result then ICLU? Had I been lifetime banned for posting left of center statements denigrating the US Constitution, what result ICLU? Hey, we all know don't we? Rather Biased.

  5. It was mentioned in the article that there have been numerous CLE events to train attorneys on e-filing. I would like someone to provide a list of those events, because I have not seen any such events in east central Indiana, and since Hamilton County is one of the counties where e-filing is mandatory, one would expect some instruction in this area. Come on, people, give some instruction, not just applause!

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