Five months after the Porter County Council voted to withdraw from the Northwest Indiana Regional Development Authority, the Indiana Attorney General’s Office has issued its opinion that Porter County never had the choice to join the RDA in the first place and so it doesn’t have the right to pull out, either.

The office of Attorney General Greg Zoeller today sent its non-binding opinion to the RDA, rebuking a provision in a just-passed law that allows Porter County municipalities to join the RDA if the county opts out.

The eight-page opinion, which the RDA released late this morning, essentially concludes that when the Indiana Legislature passed the RDA law in 2005, Porter County had no choice but to join, and that the only issue left up to the local officials was how to fund its mandated $3.5 million in dues to the RDA.

The opinion concludes that Porter County “did not have the option to join the RDA” when the state law created the RDA as a separate corporate and politic body.

“The General Assembly did not create an ‘opt in’ or ‘opt out’ provision for RDA members...” the opinion reads.

In May, 2005, the Porter County Council voted 4-3 to join the RDA by imposing a new 0.25 County Economic Development Income Tax -- essentially doubling the CEDIT tax in place.

But according to the Attorney General’s opinion, that vote wasn’t actually to join the RDA -- only to decide the funding mechanism to come up with the $3.5 million in dues.

The opinion states that while the RDA law gave Porter County the option to use CEDIT to fund its membership, “the exercise of this option does not equate to ‘joining’ the RDA. The General Assembly could establish a means to cease membership in the RDA but has elected not to do so. Porter County cannot unilaterally cease membership in the RDA,” reads the opinion written by Deputy Attorney General Kevin McDowell.

Further, the opinion states that the RDA law used the term “shall” when referring to the $3.5 million contribution to the RDA. The AG opinion states that the Porter County Council erred in directing Porter County Auditor Jim Kopp not to pay the dues -- even though Kopp and County Treasurer Jim Murphy both refused to comply with that directive -- since the law requires the treasurer to make the payments without approval by any other entity.

The AG opinion also rebukes a provision passed in the state’s budget bill in June that would allow at least two municipalities to join the RDA by using the county CEDIT funds if the county were to cease membership in the RDA.

“As Porter County cannot cease to be a member of the RDA, the (provision allowing municipalities to join instead) is not presently available,” the opinion reads.

The opinion was sent to the RDA Chair Leigh Morris, who issued the following statement: “The opinion speaks for itself and requires no further amplification."

On Friday of last week, the county council filed suit seeking a judge’s ruling on the legality of its decision to pull out of the RDA. The lawsuit was not unexpected, since some county officials have said that the RDA law is not clear in whether Porter County could legally pull out of the regional agency and that the county might seek a judge’s order on its own to put the matter to rest.

Posted 9/3/2009