St. John clerk-treasurer, council battling over record-keeping duties
By Teresa Auch Schultz firstname.lastname@example.org December 29, 2013 6:54PM
St. John Clerk-Treasurer Sherry Sur (left) and Town Council employee Susan Wright maintain records at a recent council meeting. Sury has filed a lawsuit against the town, claiming that the council's hiring of Wright infringes on her statutory responsibilities. | Teresa Auch Schultz/Post-Tribune
Updated: December 29, 2013 8:45PM
At a recent St. John Town Council meeting, council members politely interacted with Clerk-Treasurer Sherry Sury, smiling as they passed papers back and forth and made small talk.
All is not well between the town’s elected officials, however, and the problem is centered on the woman who sat next to Sury, mirroring the clerk-treasurer as they both recorded and took notes throughout the meeting.
The problem has gotten to the point where Sury has filed suit against the town, claiming the council is usurping one of her office’s most basic obligations: creating the official minutes of council meetings, public records that are considered essential by the state government.
The move by the council to hire its own secretary to take the minutes, and to ignore those submitted by Sury, could have ramifications for municipal governments across the state in what is apparently a first-of-its kind legal battle.
“It’s risen to really an untenable circumstance,” Jeff Gunning, Sury’s attorney, said.
Sury, like other clerk-treasurers in the state, attends all of the council’s public meetings or sends someone in her stead to take audio recordings of the meetings that will later be turned into the meeting’s minutes. This, Gunning says, is established in the Indiana Code under the section of the duties and powers of clerk-treasurers, which states, amongst nine other duties, “Serve as clerk of the legislative body by attending its meetings and recording its proceedings.”
But St. John changed that common process in September 2012, when the council members hired their own part-time employee, Susan Wright, to start taking the meeting notes, with the help of a newly installed recording system that Sury says she was never asked about or gave her approval for.
Gunning claims the council’s move came because of several disputes they had with Sury over record keeping, including two July 2012 executive sessions, in which Sury says the council members illegally discussed topics that are not allowed in closed meetings and noted those discussions in the official minutes.
“My observation is they have consistently battled with the clerk-treasurer for a long time, and in a different environment and a different set of facts, we would call that harassment,” Gunning said.
Sury kept sending the council members her minutes, which she created with the help of Barbara Haralovich, a woman she contracts to transcribe the audio recordings, but the lawsuit, filed in November, says Town Manager Steve Kil eventually told her to stop because the council was ignoring them.
Instead, they kept sending her notes that Wright took as the official notes. They also started blocking Sury from attending the council’s executive sessions.
Gunning said the actions by the council are violating state code but also are creating public records concerns as he says Sury has spotted errors in some of the minutes taken by Wright.
“It puts into question the official activities of the Council,” Gunning said.
He said some of the errors are as simple as incorrect meeting dates, but the lawsuit mentions that others go as far as including notes on events that never happened at public meetings. Gunning declined to comment for now on what those allegedly non-existent items were, but said “I think what it shows is the nontrained secretary’s work product is not reliable.”
Town attorney David Austgen declined to comment on any ongoing litigation but did defend Wright, who he said has taken minutes for some of the town’s other boards, such as the Board of Zoning Appeals, and also for other local municipal governments.
Jodie Woods, general counsel for the Indiana Association of Cities and Towns, said that although she doesn’t know for certain that such a dispute between a community’s council and clerk-treasurer hasn’t happened before in Indiana, she hasn’t heard of it.
Usually, the questions Woods gets center on whether a clerk-treasurer has to be at a meeting, especially if the clerk-treasurer is sick or otherwise can’t make it.
“I’ve taken notes at committee meetings when the clerk-treasurer couldn’t be there,” Woods said.
She did say that Indiana law gives legislative bodies the right to hire their own employees but also referred to the section of Indiana Code that names the clerk-treasurer as the clerk of the legislative body.
IACT has no official position on the matter, Woods said, adding that the group’s purpose is to help municipalities through these types of issues.
Kathy Parsons, president of the Indiana League of Municipal Clerk-Treasurers, did not comment on the issue but instead referred, as Woods did, to the state law stating the duties of clerk-treasurers.
If the two sides can’t settle their dispute on their own, however, and a Lake County judge issues an order, that could eventually affect other clerk-treasurers across the state.
Woods said although a rule by a county judge carries no immediate power in any other county, other municipal officials could refer to it in their own legal battles, and if any decision is appealed, orders from the Indiana Court of Appeals do carry power throughout the state.
“It sounds like it’s going to be a new situation and (legal) interpretation,” Woods said.
Although the lawsuit is still in the beginning stages in Lake County Judge John Pera’s court, several state offices have already issued their own mixed opinions on the dispute.
In October 2012, Jim Corridan, executive director of the Indiana Commission of Public Records and the state archivist, wrote that he was “concerned” by the town’s hiring of a separate employe to take meeting minutes and that if the SBOA found Wright’s services to be duplicative of Sury’s, it could possibly order council members to pay back the town the expenses used to pay Wright.
“It is the Commission’s position that the official minutes of the town council should be taken by the town’s clerk-treasurer and then amended, revised and adopted by the governing body,” Corridan wrote. “Recordings of the meeting presented by a third-party and adopted by the town council may put in question the official actions of the town council.”
Gunning argues that Corridan’s letter is a directive that St. John must follow because the SBOA requires towns to follow the rulings of Corridan and the ICPR.
However, former Indiana Public Access Counselor Joseph Hoage ruled in November 2012 that St. John Council members had the right to decide who attended executive sessions, meaning they were allowed to keep Sury from those meetings.
Sury has worked to keep providing minutes for each meeting, even if the council ignores them. That is getting harder, however, now that Haralovich, her transcriptionist, quit this fall. The council stopped providing the funds to pay her earlier in the year, and although Haralovich continued working for some time, she told Sury she would no longer do so until she is paid the $1,820 she is owed.
Gunning claims this is yet another way the council has interfered with Sury’s position, which is granted by state law the right to hire people for the office.
However, Austgen said the council decided to stop paying the contractor because her services were no longer needed and would just be duplicative.
Along with the request to bar the town from hiring Wright to take the minutes, the lawsuit is seeking to force the council to pay Haralovich and to provide proper storage for town records.