Pharos-Tribune

June 16, 2013

Attorney: City falsified documents

City's lawyers say claim is conjecture.

by Mitchell Kirk Pharos-Tribune
Pharos-Tribune

---- — The attorney representing a woman who filed a lawsuit against Logansport Mayor Ted Franklin and city council regarding the city’s ongoing power plant project states city officials have falsified two pieces of legislation, according to court records, a claim the city’s attorneys say is based on conjecture and improperly timed.

In March, Logansport attorney Jim Brugh filed the suit on behalf of Julie Kitchell, a Logansport resident. The suit claims the city engaged in the process of developing a public-private agreement with Pyrolyzer LLC to develop a new power plant before adopting an ordinance authorizing it to do so.

Cass County Superior Court II dismissed the case in April. Brugh has since filed an appeal in the Indiana Court of Appeals and attorneys representing the city have countered with a filing in the state supreme court.

A recent affidavit filed by Brugh in Cass Superior Court II states the ordinance and resolution authorizing the city to engage in negotiations for the development of the power plant were falsified by Franklin and Logansport Clerk-Treasurer Carol Sue Hayworth.

In the affidavit, Brugh writes he visited Hayworth’s office March 13 to acquire copies of the ordinance and resolution. The copies of the documents attached to the affidavit indicate Logansport City Council President Joe Buck had signed the resolution, but not the ordinance, and that Franklin had yet to sign either of them. Brugh goes on to state he requested copies of the documents after they had all been signed.

Brugh continues by citing a provision in Indiana Code that states a mayor must sign an ordinance within 10 days or else it is considered vetoed. The ordinance and resolution in question were passed March 4, meaning March 14 would have been the 10th day.

Brugh then writes he received a letter from Hayworth dated March 18 attached with copies of the ordinance and resolution, both signed by Buck and Franklin. The dates on their signatures read March 4. Brugh called into question how that could be possible if on March 13 the only documents available to Brugh were those that had yet to be properly signed.

“The documents were not signed on March 4; the Clerk and the Mayor have backdated the documents,” Brugh writes, adding that the ordinance and resolution should be considered void under Indiana Code because Franklin failed to sign them within 10 days.

“I sign hundreds of documents a week,” Franklin said in an interview responding to the claims. “I don’t have a photographic memory. The record reflects it was signed on March fourth so I have to assume I signed it on March fourth.”

Hayworth did not respond to a request for comment.

Mark Crandley, representing Franklin in the lawsuit, and John Molitor, representing city council, responded to Brugh’s claims with a filing of their own. In it they request Cass Superior Court II strike the affidavit, as the court has already dismissed the case.

Writing that Brugh’s submission “offers nothing but conjecture that the documents were ‘backdated’,” Crandley and Molitor go on to state, “If Kitchell wanted to litigate these issues, it was her counsel’s obligation to present them in her complaint or at some point before the court entered a final judgement.”

It is possible the court could find merit in Brugh’s argument however, in which case the case could be reopened.

Should this occur, Molitor and Crandley go on to state in their motion that Brugh be disqualified from continuing to represent Kitchell. Their motion mentions the Indiana Rules of Professional Conduct, which guides attorneys, part of which states a lawyer cannot litigate a case in which the lawyer becomes a witness. There are exceptions to this rule, which the attorneys go on to write do not apply to the suit.

“Mr. Brugh is in the wrong place, at the wrong time and is the wrong guy to bring this argument,” Molitor said in an interview.

When asked about Brugh’s argument itself, Molitor dismissed it as without validity.

“As I understand it, [the ordinance and resolution] say they were signed on the same day they were passed,” Molitor said. “There isn’t any indication as to how Mr. Brugh would know when else it would have been signed.

“I don’t know if the signed copy didn’t get into the clerk-treasurer’s office when Brugh wanted it or what,” Molitor continued. “In the long run, it doesn’t matter. The only record that exists shows it was signed the night it was passed.”

Mitchell Kirk is a staff reporter at the Pharos-Tribune. He can be reached at 574-732-5130 or mitchell.kirk@pharostribune.com.