August 27, 2012






The Ellettsville, Indiana, Town Council met for a Regular Meeting on Monday, August 27, 2012, at the Fire Department Training and Conference Room.  Scott Oldham called the meeting to order at 7:00 p.m.  David Drake led the Pledge of Allegiance followed with a prayer by Phillip Smith. 


Roll Call:  Members present were Scott Oldham, President; Dan Swafford, Vice President; Dianna Bastin, David Drake and Phillip Smith.  Sandra Hash, Clerk Treasurer, and Darla Brown, Town Attorney, were also present


Supervisors Present were:  Jim Davis, Jim Ragle, Tony Bowlen, Connie Griffin, Mike Farmer and Jeff Farmer.


Approval of Minutes


Scott Oldham entertained a motion for the approval of the minutes for the regular meeting on August 13, 2012.  David Drake so moved.  Phillip Smith seconded.  Motion carried.


Accounts Payable Vouchers


Scott Oldham entertained a motion for action to pay Accounts Payable Vouchers.  Dianna Bastin so moved.  Dan Swafford seconded.  Motion carried.


Open Bids for the Triple Combination Pumper Truck, Rescue Truck and Equipment for the Ellettsville Fire Department


Darla Brown, Town Attorney, stated the first bid is from Mid America Fire and Safety, LLC in Evansville, Indiana.  This is a multi-page bid that has quantity and part numbers lined out.  Under the description they’ve given an estimate for ventilation, forcible entry equipment, miscellaneous equipment, fire tech equipment, supply line equipment, generator accessories, EMS equipment, turnout gear equipment and rescue equipment for a total of $105,457.99.  They also gave a quote for line apparel five force coats with K7 liner totaling $55,146


The second bid is from Global Emergency Products in Whitestown, Indiana.  They submitted a bid for the purchase of one triple combination pumper and one rescue fire truck and loose equipment.  The bid for the Pierce Saver Pumper is $399,709, the two door Freightliner Encore Rescue bid is $354,900 and the loose equipment bid is $120,985.91.  There are various documents attached such as the Certificate of Liability Insurance, bid bond, the details to backup the bid.


Ms. Brown advised the first bid was for equipment and not the vehicles.  Global’s bid included the pumper, the Encore Rescue and loose equipment.  Scott Oldham asked how much the bid on the loose equipment was for.  Ms. Brown replied the loose equipment was $120,985.91.  There was also a cashier’s check in the amount of $5,405 with the bid from Mid-America Fire and Safety.  She suggested the Town Council take the bids under advisement in order to allow Chief Davis and Deputy Cornman to review the bids to make sure they’re in compliance with the specifications.  In the ads there was a request for five percent of the total bid amount in the form of an acceptable bid bond or certified check. 


Dan Swafford asked if they only received one bid for the trucks.  Ms. Brown replied yes.  Mr. Swafford asked who the packets went to.  Chief Davis answered it was advertised in the Herald-Times and the Ellettsville Journal.  Chief Deputy Michael Cornman added they contacted a company that gets bids from several people.


Scott Oldham commented he thinks it’s a good idea to table this and review the bids to make sure they’re exactly what they want prior to acceptance even though there is only one bid for the truck.  He doesn’t want to agree to the bids and find out it’s not what they actually wanted.  Phillip Smith, David Drake and Dianna Bastin concurred. 


Darla Brown advised they’re going to talk about the agreement between the Town and the Monroe County Redevelopment Commission later in the meeting.  The agreement states that the Town will get the Tax Increment Financing (“TIF”) funds upon presentation of an invoice.  The Town can get paid for the first half of it as early as September 7, 2012.  September 7, 2012, is before the next Town Council meeting.  If they see fit it might be appropriate since the Town Council is the purchasing agent under the Town Code to delegate to Deputy Chief Mike Cornman and Chief Jim Davis the authority to make a selection if the submitted bid complies with all the specs and to accept it prior to September 7, 2012.  If they get an invoice to the Redevelopment Commission by September 5, 2012, the Town can get its money by September 7, 2012.


Scott Oldham entertained a motion to table the bids for the Triple Combination Pumper Truck, Rescue Truck and equipment until the Fire Chief and Deputy Chief look over the bids and then allow them to accept the bid if it meets all of their requirements.    Dianna Bastin made a motion to table the bids for the Triple Combination Pumper Truck, Rescue Truck and equipment until the Fire Chief and Deputy Chief look over the bids and then allow them to accept the bid if it meets all of their requirements.  David Drake seconded.


Prior to the vote the following discussion took place:


Dan Swafford asked what happens if the bid is higher than what’s expected.  Is there any other revenue, do they ask for more bids or are they stuck with the one bid?  Ms. Brown replied if the Chief and Deputy Chief find, after reviewing the bid, that it doesn’t meet specs then the Town can reject the bid and ask for more bids.  Mr. Swafford asked if it does meet all the specs are they bound to accept the bid.  Ms. Brown answered that’s correct, if it’s the lowest responsible bidder and the bid meets the specifications.


David Drake asked Chief Davis if the bid is over what they expected.  Chief Davis replied no.


Roll Call Vote:  Scott Oldham – yes; Dan Swafford – yes; Dianna Bastin – yes; David Drake – yes and Phillip Smith - yes.  Motion carried 5-0.


Old Business


Agreement between Monroe County Redevelopment Commission and the Town of Ellettsville Regarding Award of Tax Increment Financing Funds


Darla Brown explained what is in front of them is a revised copy of the Agreement.  After the last Town Council meeting Deputy Cornman, David Drake and she went to the Redevelopment Commission meeting about these funds.  There were some changes to the recitals so the document looks a little different.  Section 2, Financing, is different.  Specifically, on page 2 of the document, the first recital, there were some changes the Redevelopment Commission made to the document.  The following have been added to the agreement:


§         First recital on page 2: “WHEREAS, much of the growth in Richland Township has been generated in or influenced by the Westside TIF area . . .”

§         Third recital on page 2: “WHEREAS, the Town believes that the purchase of said fire trucks is necessary in order to ensure the quality of services being provided to the residents of Monroe County; including businesses and residents in the Westside TIF area and 46 Corridor Economic Development area . . .”

§         Paragraph six on page 2: “WHEREAS, due to the economic climate, the funding to purchase the vehicles would be otherwise unavailable . . .”

§         Paragraph seven on page 2:  “. . . including complex building assets . . .”

§         Paragraph nine on page 2:  “. . . adequate funding exists to complete all other schedule[d] projects as well as this contract; and”

§         Recital 10 in page 2:  “WHEREAS, the Monroe County Redevelopment Commission finds that an adequate safety infrastructure in the area serves as an important economic development tool to encourage businesses and industries to locate in the Westside TIF . . .”

§         Page 3 under Agreement, Financing the Vehicles, it has been changed from “$440,000.00” outright to “. . . fifty percent (50%) up to an amount not to exceed $440,000.00 . . .”


Ms. Brown reiterated the Agreement states the Redevelopment Commission shall contribute half of its obligation no later than September 7, 2012.  The Town is required to send an invoice to the Redevelopment Commission in order to get the TIF funds.  This was passed two weeks ago at the Redevelopment Commission meeting.


Phillip Smith stated the way he reads the agreement they will pay up to 50% of the amount toward the purchase of the vehicles and equipment not to exceed $440,000.  Are they saying if the truck costs $400,000.00 they will only pay $200,000?  Ms. Brown replied the total they will pay is $440,000.   They get 50% this year and 50% next year.  In the original agreement they were going to pay $440,000.  Now, they decided at the last meeting if the vehicles come in less than anticipated in the agreement, they didn’t want to be locked in to promising $440,000. 


Scott Oldham entertained a motion to approve the agreement between the Monroe County Redevelopment Commission, Westside TIF District and the Town of Ellettsville.  David Drake made a motion to approve the agreement between the Monroe County Redevelopment Commission, Westside TIF District and the Town of Ellettsville. Dianna Bastin seconded.  Roll Call Vote:  Scott Oldham – yes; Dan Swafford – yes; Dianna Bastin – yes; David Drake – yes and Phillip Smith - yes.  Motion carried 5-0.


Ordinance 2012-10 to Amend Chapter 51 of the Ellettsville Town Code Regarding Water Usage during Emergencies


Darla Brown, Town Attorney, explained at the last Town Council meeting an ordinance was passed regarding water usage.  There was an earlier version of the ordinance that had been circulating which some members of the audience had in front of them.  She thought it would be a good idea to put it back on the agenda to get the Town Council’s comments on the ordinance.  She can either draft a petition to repeal the ordinance and start over or draft an ordinance to amend the ordinance.  She thought it would be helpful to get Town Council’s additional comments and/or comments from the audience about the ordinance.


Tom Mathiesen was very concerned about the way the ordinance was passed at the last meeting.  Particularly, when it was discovered that the ordinance that had been circulated was not the ordinance they were voting on.  The ordinance that was voted on contained a section on service cancelation which he thinks is highly objectionable.  He doesn’t like to think the Town Council actually voted for this knowing what was in it.  Over the past week, he’s gotten copies of all the contracts relevant to water usage with the Indiana Department of Natural Resources and between Bloomington and several of the water districts including Ellettsville and Nashville.  He’s looked at the Indiana Water Shortage Plan, the City of Bloomington Utilities Water Conservation Plan, parts of the state code and so forth.  On the basis of public information that has been released, contracts and other information he has obtained, he cannot see any basis for this ordinance as passed.  There might not be any basis for declaring a water emergency.  No member of the public had ever seen the ordinance before it was adopted.  When it was passed, suspending the normal procedures, they effectively shut out any possibility for public comment or review of the ordinance.


Moreover, he’s discovered no other entity within this area has passed an ordinance addressing this issue.  All the other entities either declared an emergency through Indiana Code 10-14-3-29 which allows the executive to declare an emergency which is what Bloomington and Zionsville have done.  Nashville does not have any water restrictions in place.  He would argue there’s no need for the ordinance.  Mr. Oldham, under I.C. 10-14-3-29, could have declared an emergency which would have been subject to review by the Council within seven days.  The whole basis for an emergency declaration is to provide opportunities for short term emergencies and then they’re subject to review.  The ordinance that was passed is not in accordance with any of the conservation plans.  Under Section 51.53, a single individual, unelected, can determine, without any evidence whatsoever, that a person is using too much water.  That person can also determine within a five day period that a person’s water shall be shut off thereby rendering his home uninhabitable.  It does not specify that a person be notified by certified mail or if it’s five business days.  The avenue of appeal is to the same person who made the determination in the first place.  It’s a repugnant idea, punitive, has no avenue of appeal and is entirely unjustifiable.  He is requesting they appeal §51.53 and the ordinance.  This ordinance doesn’t accord with any of the information that is available in any of the documents. 


Dan Swafford explained under §51.53(C), “Before service is disconnected the Town water company shall send written notice of its intentions to disconnect the water service.”  This should definitely be by certified mail.  He asked Darla Brown if it’s true they have five days to appeal.  Ms. Brown replied that’s correct.  Mr. Swafford thinks the appeal process should have the liaison to the water superintendent or the Town Council President present at the hearing.  It is redundant to have the same person who shuts off the water also do the appeal. 


Dianna Bastin read the email and did know what she was voting on.  She approves of the service cancelation provision.  She has been the Utilities’ liaison for two years and anytime there’s been someone that needs shut off for something under an emergency condition she has received a phone call and was part of the decision.  Without noting any examples, she found the research to be extraordinary and the managers argued it both ways.  There aren’t any problems with how it is written or how it is done.  They don’t take it lightly.  She doesn’t foresee anyone being shut off.  Ellettsville rose to the occasion immediately and took appropriate measures.  She specifically asked the managers if they saw themselves shutting anybody off and they said no.  She’s not worried about it and thinks it should stay as is and for the one person who’ll push their limits. 


David Drake asked if the rules are similar to someone elses.  Ms. Brown replied it is similar to the City of Bloomington and actually Indianapolis has included it in their municipal ordinances.  Mr. Drake commented when the people they buy their water from declare an emergency and put restrictions on the usage of the water they have to follow suit.  If the Town is going to be responsible, as it expects its customers to be, then they have to take the same actions they do.  He doesn’t find anything inappropriate about the ordinance.


Dan Swafford asked Ms. Brown about her research on the appeal process and how it is handled in Bloomington.  Mr. Oldham added each town or municipality establishes its ordinances within the bounds of the law as it sees fit.  They’re doing a lot of back and forth about what does Indianapolis or Bloomington do.  It really doesn’t matter.  It’s what the Town’s specific situation is and what an ordinance would say.  Mr. Swafford said he agrees with that but they also need a check and balance system.  There should be another person in charge of the appeal process.  Mr. Oldham noted each manager works at the pleasure of the Town Council and as such any of their decisions are capable of being overturned.  The Council can simply order no, it’s not going to happen and reverse their decision and go forward.  Therefore, there is already a built in appellate process that, although not spoken to in the ordinance, is spoken to in the Town Code in regard to public meetings, access to the Council, etcetera.  Mr. Swafford agrees except for the fact of the five day policy unless it includes that it would be until the next Council meeting.  Otherwise, how are they even going to know the process is being handled for them to appeal the decision?  Mr. Oldham said this is a sub-appeal process and written into the code.  Decisions can be appealed to the Council.  It is literally no different than somebody making a decision in the Street Department that they’re going to close a road.  When they shut the road, it can be appealed all the way to the Council.  The Town Council doesn’t second guess the managers of individual departments. 


Phillip Smith can understand what Mr. Swafford is saying.  If the Town shuts off someone’s water, how long will it take to get their water turned back on?  Ms. Bastin noted there have been cases where people have been facing a challenge in their health and their water has not been shut off.  There have also been cases where not shutting the water off presented an expense to someone.  The question becomes do they shut it off now and save them money or do they let it get too big for them to pay.  This isn’t just one person’s decision.  The people who work in the office and field know customers and their water usage.  They’re worrying about someone making a decision to shut the water off but they’re not worried about that someone getting up in the middle of the night to make sure the tank is operating and finding out that it’s been struck by lightening, worrying about the water levels, shifting the water levels and quietly telling people who have big fancy sprinkler systems the water levels are down and they need to be on alert.  She doesn’t understand it.  She reiterated they do know their customers and no one is going to be shut off. 


Scott Oldham stated this is talking about an emergency.  However, every month they have the ability to turn off water for people who don’t pay and the Town Council doesn’t interact with that whatsoever.  They’re becoming all wrapped around it as part of an emergency ordinance.  It doesn’t equivocate.  Mr. Swafford stated he is at the same point as Mr. Oldham.  He is talking about an emergency.  He understands if someone doesn’t make a payment their water is going to be shut off.  This isn’t what he’s worried about.  Ms. Bastin said her point is they trust them day-to-day but now they’re not going to trust them during an emergency situation.  What’s the difference?  Mr. Swafford replied it is a different set of circumstances.  A person may not even be aware there’s a water emergency.  Mr. Drake noted the customer gets a warning before they get the shut off notice.  Ms. Bastin said in all fairness Mr. Swafford wasn’t at the last meeting.  The Utilities manager said he’ll be paying visits and looking at this and if he thinks there’s a problem he’s going to go talk to them face to face and make sure they understand.  Mr. Swafford said he watched the meeting on television and there is some concern on which ordinance they voted on.  There were some differences from when he asked Council members which ordinance they thought they were voting on.  He thinks regular mail needs to be certified and he thinks the appeal process needs an extra person. 


Mike Farmer explained they don’t trust certified mail.  In an extreme emergency, if they were going to shut anyone off who was using excessive water, and the Town’s water supply was in peril, there would be direct contact with the customer. It’s not like this shut off process is available so they can shut off numerous customers that are greening their grass.  This is a fail safe consideration for extreme emergencies which is what they were heading for when the ordinance was passed.  It probably won’t come into play but it’s possible if they have someone who is belligerent and ignores the ordinance.  Since the ordinance has been passed they have had three or four power outages at the water plant.  In his conversation with City of Bloomington Utilities officials, they’re glad the ban is in place, water usage was normal and below normal, and it allowed them to recuperate without anybody noticing.  Under those situations if someone was using extremely large amounts of water and they needed to shut them off they would be notified.  They would vet the process and make sure no one is on dialysis and they do keep track of these things.  They would shut them off after they determined there was no other alternative and if it was causing concern for the water supply for the general public.  This is what this is all about.  This ordinance was passed under extreme weather conditions and after excessive uses of water throughout Monroe County.  It was well thought out and a common sense approach to what they’re going to do if they run out of water.  The ordinance is working. 


Dan Swafford agrees it needs to be put in place.  He reiterated those are the only two issues he has.  Mr. Drake stated he didn’t have a problem adding those two points.  It may not be an issue right now.  In a year, they could all be gone and it could be somebody completely different.  If they want to spell out they should get the notice by certified mail and there’s another person involved in the appeal process, he doesn’t have a problem with putting it in the ordinance.


Darla Brown, Town Attorney, will draft an amended ordinance to be presented to them at the next meeting for a vote.  Mr. Drake asked if the ordinance passed last time is still in effect.  Ms. Brown reiterated she will draft an amended ordinance changing §51.53(C) for their consideration at the next Town Council meeting.  Mr. Drake noted §51.53(D) was also under discussion as appealing to the President of the Town Council.  Then, the President’s decision can be appealed at the Town Council at the next regular meeting.  Mr. Oldham said it will be someone else next year.  Indiana Code clearly gives the president the ability to shut off the water by signature.  Staying consistent with Indiana Code is the way to go.  Ms. Brown asked how many days did they have to file an appeal after the decisions by the superintendent and president.  Mr. Drake replied they could stay with five days.  Ms. Brown confirmed it will be five days after the customer gets a decision from the president and the superintendent to give notice of the appeal which will be heard at the next Town Council meeting.  Mr. Smith asked if their water will be shut off during this time or will it still be on.  Ms. Brown replied it will stay on. 


Sandra Hash received a call from a lady that had two potted plants and she was concerned about watering her plants.  If they’re after the really big users it’s not clear in the ordinance.  It appears nothing can be watered unless it’s a vegetable.  Are they after keeping people from watering planters outside or are they after large users who have been watering their grass?  Mr. Oldham replied they can’t spell out every thing.  There’s a great deal of common sense that went into the ordinance and it was worded the best it can be.  Hopefully, they’ll never have to use this again.  Mr. Smith noted the ordinance states vegetable gardens may be watered every other day by container or a handheld hose equipped with a shut off nozzle. 


New Business


Proposal to Post Proposed Ordinances and Resolutions on the Town’s Website Prior to Consideration by Council


Darla Brown, Town Attorney, explained she talked to Sandra Hash and if she can get the ordinances or resolutions by Wednesday before the Town Council meeting she can get them on the website so everybody can look at them.   Mr. Oldham commented that’s a huge issue because they’re usually reading them well before that by email.  Ms. Brown responded this makes them available to the public so people won’t have to call her and ask for copies of the ordinance. 


Council Comments


Dianna Bastin may be a little harder than everyone else on Town Council.  An emergency is an emergency.  She’s amazed at how much conversation was spent at this meeting on whether somebody was going to get their water shut off.  They don’t question it when it’s snowing.  There’s much more to it.  It’s about the water to put a fire out and to do domestic stuff.  She reiterated it’s an emergency and she doesn’t understand why now they have to start changing things and making it easier.  If they’re using water they shouldn’t be they should be shut off. 


David Drake thinks it’s important to recognize the fact that Richland Township, the Redevelopment Commission and the TIF District are contributing so much to the purchase of the new fire trucks.  The Town would never be able to afford the equipment on its own.  Their contributions allow the Town to have the best equipment it can possibly have. 


Privilege of the Floor


Tom Mathiesen can’t let Ms. Bastin’s comment go unchallenged.  It’s precisely in times of emergencies that it’s most important to protect the public’s rights.  To say raising objections to a section that did not provide, and he thinks will still not provide, any kind of legitimate appeal, is not questioning the problems of an emergency.  It’s questioning the facts that during emergencies governments often get out of hand and need to be checked.  He referred them to Nashville who has an appeal process in the model ordinance of the state water shortage plan.  He’s very disappointed in the comment and in the fact that no one on the Council sees this as a problem. 


Michael Sater is the 2012 President of the Fall Festival.  He is requesting permission to close Park Street from Temperance Street to Ritter Street and Campbell’s Park Drive from 12:00 p.m. on Thursday, September 13, 2012, through 6:00 a.m. on Sunday, September 16, 2012, for the 2012 Monroe County Fall Festival.  Temperance Street including cross streets will be closed from Park Street to Edgewood Drive for the Fall Festival parade beginning at 10:30 a.m. and will reopen at the conclusion of the parade.  Indiana Department of Transportation has authorized the Temperance Street closure.  The festival is from September 13 - 15, 2012. 


David Drake made a motion to make the street closures as noted.  Dan Swafford seconded.  Roll Call Vote:  Scott Oldham – yes; Dan Swafford – yes; Dianna Bastin – yes; David Drake – yes and Phillip Smith - yes.  Motion carried 5-0.




Dianna Bastin made a motion to adjourn.  Dan Swafford seconded.  Motion carried.  Dan Swafford adjourned the meeting at 7:59 p.m.