In the Circuit Court of Floyd County State of Indiana
Common Council of the
City Of New Albany
Plaintiff
v.
James E. Garner, Sr., William
Utz, Larry Kochert and Kevin
Zurschmiede, as members of the
New Albany Sanitary Sewer Boards
And
James E. Garner, Sr., as Acting
President of the New Albany Storm
Water Utility Board
Defendants
COMPLAINT
Comes the Plaintiff, by counsel, and for its Complaint seeking Declaratory Relief, states:
1. Plaintiff Common Council of the Civil City of New Albany (hereinafter referred to as the "Council") is the duty elected legislative body of the Civil City of New Albany;
2. The Civil City of New Albany owns, operates and maintains a utility for the purpose of collecting, pumping, treating and disposing of waste water;
3. The Council by duly enacted ordinance created a Sewer Board for the purpose of overseeing, managing and operating the waste water utility and its functions;
4. Defendants Garner, Utz, Kochert and Zurschmiede comprise the Sewer Board;
5. The Civil City of New Albany is charged with responsibility for the construction, operation, maintenance and control of a system for management of storm water run-off;
6. To meet its responsibility, the Council created by duly enacted ordinance a Storm Water Management Utility;
7. Defendant New Albany Storm Water Board, also known as the New Albany Storm Water Drainage Board, (hereinafter referred to as the "Storm Water Board") is an agency of the City of New Albany created by the Council pursuant to ordinance and charged with responsibility of overseeing, managing and operating the storm water run-off management program within the City of New Albany;
8. As of August 17, 2007, Defendant James Garner, Sr. was acting head of the Storm Water Board;
9. This action is brought in behalf of the Council pursuant to its Resolution No. R-07-30 duly adopted on or about August 10, 2007.
COUNT I
10. On or about June __2007, the Sewer Board purported to enter into a contract with Environmental Management Corporation, Inc. (hereinafter referred to as "EMC") for the operation and maintenance of the waste water treatment facility and collection system owned by the City of New Albany, a copy of said purported contract is attached hereto and incorporated herein as Plaintiff's Exhibit "A";
11. The work and service contemplated by and encompassed within the terms of the contract is a "public work" as that term is defined by I.C. 36-1-12-2;
12. Under the terms of the applicable statutes including but not limited to I.C. 36-1-12-4, the Sewer Board was required to solicit competitive bids for the work and services contemplated by and encompassed within the contract;
13. The Sewer Board did not solicit competitive bids for such work and services and the contract is voidable and/or void pursuant to the provisions of I.C. 36-1-12-16.
COUNT II
14. On or about the June 20, 2007, the Storm Water Board purported to enter into a contract with EMC to operate and maintain a system for the collection and management of storm water run-off for the Civil City of New Albany; a copy of said contract is attached hereto and incorporated herein as Plaintiff's Exhibit "B";
15. The work and service contemplated by and encompassed within the terms of the contract is a "public work" as that term is defined by I.C. 36-1-12-2;
16. Under the terms of the applicable statutes including but not limited to I.C. 36-1-12-4, the Storm Water Board was required to solicit competitive bids for the work and services encompassed within the contract;
17. The Storm Water Board did not solicit competitive bids for the work and services encompassed within the contract and the contract is voidable and/or void pursuant to the provisions of I.C. 36-1-12-16;
18. The enabling ordinance creating the Storm Water Board required the Board to submit a budget to the Council for the approval of the Council by June 15 of each year;
19. The Storm Water Board has failed to submit such budget and/or no budget has been approved by the Council;
20. As a result of the Storm Water Board's failure to secure approval for its budget by the Council, the Storm Water Board under the contract has purported to obligate the City for payment of sums in excess of the amounts appropriated for such purposes in violation of I.C. 36-4-8-12 and in violation of City Ordinance 35.19 as a consequence of which, the contract is void;
21. The purported contract was not submitted to, approved or signed by the Mayor of the Civil City of New Albany as is required by I.C. 36-4-5-3 and said contract has, therefore, not been accepted by the City.
WHEREFORE, Plaintiff moves the Court for entry of an Order determining that the purported contract between the Sewer Board and EMC is voidable and void and for further Order declaring that the purported contract between the Storm Water Board and EMC is voidable and void and for all other relief proper in the premises.
_________________
JERRY L. ULRICH
ULRICH & VIDRA,
115 East Spring Street
Suite 100 Elsby Building
New Albany, Indiana 47150
(812) 945-2800
Indiana Superior Court #924-22
Council for Plaintiff
Source: New Albany Superior Court
Freedom of Speech would like to say this lawsuit adds to the many problems of our city.
