Contract creates controversy: Commissioners approve, rescind attorney agreement

Last month, the Owen County Board of Commissioners voted to approve the same contract for county attorney services – almost.

At the first meeting of the month, Board President Gary Burton brought the topic up, as the current contract ends at the end of 2024.

“We cannot go into a new business year with no county counsel, and I mean that by a county attorney,” Burton said, acknowledging that there would be new commissioners on the board. “We cannot start a new year without legal counsel for reorganization.”

Except that’s not true.

Despite it being common sense and best practice, Indiana law doesn’t require that county commissioners have an attorney. Rather, Indiana Code 36-2-2-30 states, “The executive may employ and fix the compensation of an attorney to represent and advise the executive.”

It provides the same for county councils in Indiana Code 36-2-3-10.

Burton continued.

“With that being said, it is a two-year agreement, same as it’s been for the last several years. The pay rate is the same for 2025,” he said. “There is a 2026, five percent increase which would be discussed at budget hearings. Other than that the agreement is the same as it was when we signed this to bring Dana [Kerr, the current county attorney] on.”

Except it wasn’t.

The new contract provided a clause requiring payment for the remainder of the year’s annual fee, or $160,000, if the contract is terminated by the county. This includes if the two incoming commissioners, Sam Hobbs and David Risk, take official action to terminate the contract at the initial January meeting. The two newcomers would have a 2-1 majority over the only incumbent commissioner, Burton.

“The County recognizes that Attorney has given up the vast majority of his clients to serve the County and that, as a solo practitioner, Attorney will need sufficient time to rebuild the Attorney’s practice,” the contract reads. “Therefore, the annual fee is determined to be earned on the first day of the year and any termination by the County that becomes effective before the expiration of this agreement, County shall pay any balance due on the annual fee.”

“I don’t feel that it’s my responsibility to determine who is going to be counsel in the future,” current commissioner Joel Lowe said, acknowledging that the board needed counsel at the start of the year.

Commissioner Bob Curry moved to approve the contract, and Lowe seconded the motion. The motion passed 2-1, with Lowe abstaining.

Except that wasn’t the end.

At their next meeting two weeks later, the topic came up again following comments and questions from citizen Allan McBride.

Lowe clarified why he abstained.

“This is based on my opinion, my thoughts and my feelings, not personal. I didn’t feel it was the business of the two commissioners leaving the position to have any say as to who was going to represent [the Board of Commissioners] into the new administration,” Lowe said before adding, “I personally looked at the contracts, and they were stated as being the same as last year. They were not the same.”

Lowe held up copies of the contract.

He added that he had “issues with the way that our county attorney has conducted business with the county.”

“I believe that our attorney was placed in positions that he didn't need to be placed into, morally and ethically,” Lowe said.

Lowe claimed that he had shared with Curry and Burton that he was not on board with the contract.

“I’m an individual commissioner. I’m allowed to think and respond how I see fit. That’s why I abstained,” he said.

Except Lowe’s actions inadvertently and unintentionally halted the contract, possibly making it null and void.

Lowe signed the contract “when I should not have in confusion,” he said.

“I didn't list my signature as a nay, yay or abstained. I signed it. Owen County Auditor Sheila Reeves will not attest that contract. She’s told me so. The document’s no good,” Lowe said. “These gentlemen have the right to bring forth a new contract, most certainly they will. But I don't stand on the fact that I have any business dictating who is going to be the attorney for the new incoming executive body. It’s not my place. “

He continued.

“I was misled to believe that we have to have an attorney, or that the board of commissioners of Owen County have to have an attorney present the first day, the first meeting. I have yet to find any, and Dana, you're welcome to provide it to me if you've got it, any legal documentation, saying anything of that sort. I was misled to believe that.”

Hobbs said that he “isn’t there to run anyone out,” but affirmed that it is something that should be addressed with the new board.

“I’ve spoken to you,” Lowe said. “I’ve talked about an easy transition. My thoughts, [on] how I wanted to see the rest of the year go was to deal with the on-hand emergencies and daily business. I surely didn't need to see or anticipate ordinances, resolutions, contracts shoved through.”

Lowe also pointed to the potential conflict of interest created by Kerr writing a new contract that pertains to his legal services.

Curry stated that he thought that Lowe agreed with the contract.

Burton said that a 30-day extension of the current contract that is set to expire at the end of December is feasible. He added that in the six years he has served on the board, there has been three different sets of commissioners.

“Whatever contracts were in place never got changed, they just rolled over,” Burton said. “Now if you want to make that decision once the new board is established, that makes sense, but I don’t know that it’s good sense not to have an attorney because everything we do here, [there] could be legal ramifications if the wrong decision is made.”

Lowe then added how he hopes the next board will address the matter.

“I want to make sure that Mr. Kerr has the appropriate time to establish himself,” Lowe said. “And I'm just going to say it’s poor human behavior to throw somebody onto the street so I think that’s a serious consideration. I would hate to be sitting here and asked to leave a job with no pay, no benefits… We don't just throw people out on the street.”

Hobbs pointed out that there is a current contract, which has a 30-day notice provided to terminate it.

Burton said they would honor the old contract.

“I’ll be honest with you, It sounds to me like you're saying there's a lot of dishonesty and…” McBride began before being interrupted by all three commissioners who spoke over one another.

“Listen…” Lowe started.

“No,” Curry said.

“There’s been none, zero,” Burton said.

Except when the contract was presented, it was said that it was the same as the previous contract, aside from a possible rate increase for 2026.

Hobbs asked the board to clarify that they are rescinding the contract and extending the current contract for 30 days.

Ultimately, the board unanimously rescinded the new contract, which Lowe said he believes is null and void because Reeves will not attest to it with his signature.