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Portage City Hall

Portage City Hall is pictured. 

PORTAGE — Mayor James Snyder has filed a lawsuit against the City Council and clerk-treasurer over the council's operation of the Utility Service Board.

Snyder, represented by Indianapolis law firm Bingham Greenbaum Doll, is asking the court for both immediate and permanent action to declare the board's operations illegal and rule the recently passed stormwater fees void and unenforceable.

The lawsuit was filed Thursday in Porter Superior Court. The suit specifically names council members Elizabeth Modesto, D-1st; Pat Clem, D-2nd; Scott Williams, D-3rd; John Cannon, R-4th; Collin Czilli, D-5th; Sue Lynch, D-at-large; Mark Oprisko, D-at-large, and clerk-treasurer Chris Stidham.

The lawsuit is the latest volley in a battle between Snyder and the City Council since the council took over operations of the Utility Service Board just over a year ago.

"After nearly 90 days of no written response from the City Council attorneys, my staff and the city Board of Works felt this was the best, most efficient and most cost-effective way to remedy the potential legal and financial risk the city has been put in by two ordinances that I signed that we have been informed by other mayors and legal experts are not legally valid," Snyder stated Friday in a written statement.

"We look forward to a speedy declaratory judgment and final resolution to the matter so residents know who to call when an issue arises. It is my job to enforce all city ordinances, and when being informed one is not valid or is potentially illegal, it is my duty to seek speedy remedy," Snyder said. "It is not a matter of the council’s convenience, it is a matter of doing what is right. We have had enough meetings; the residents deserve corrections and collaboration, and I truly believe a majority of the council wants this as well."

The council adopted an ordinance in February 2017 to take control of the Utility Service Board after wrangling with Snyder over his spending of USB funds.

City Council Attorney Ken Elwood said Snyder forced the council to take that action because of "spending money for his own benefit," including attempting to pay $93,000 for attorney fees to defend his federal corruption indictment and spending utility funds to lease "$60,000 to $70,000" vehicles for his own use.

The lawsuit contends that, under state law, the USB, which was created by combining separate stormwater and sanitary sewer boards in 2010, violates state code. In addition, he contends the ordinance that put the City Council at the helm of the USB is also in violation of state law. Because those two ordinances are in violation of state law, the suit also contends, an ordinance that gave the council a salary for running the USB and the ordinance establishing the use of impervious surface measurements to charge stormwater fees for nonresidential customers are illegal.

Snyder sought advice from Bingham Greenbaum Doll last year on the issue. The law firm produced a memo stating the USB was illegally created.

Elwood said the lawsuit came as a surprise to the council, which has hired its own Indianapolis-based law firm, Clark Quinn, for advice and representation. Clark Quinn issued an advocacy memo, Elwood said, which stated the laws are vague and there are "many arguments" on both sides.

Elwood said he has been working with City Attorney Gregg Sobkowski in attempts to work out the differences and had hoped the two Indianapolis-based firms could meet to negotiate an agreement.

"Instead, he's wanting to spend thousands of dollars to settle this. This will stop projects because we don't know how much money we will be spending on legal fees," Elwood said.

Michael Griffiths, an attorney with Bingham Greenbaum Doll, disputed Elwood, saying his firm has reached out to the council's firm to seek a resolution prior to going to court.

"We did reach out to them a few times and tried to resolve this. Our goal was to try and stop this before it went to this action," Griffiths said.

Elwood said he also questions Snyder's standing in filing the lawsuit and finds the action illogical.

"He was chairman of the Utility Service Board for six years and has taken all kinds of action," Elwood said, adding those actions could now come into question. "Where's the logic in that?"

"When the mayor took office, that structure was in place, and he had no reason to question it," Griffiths said.

While named as a defendant in the lawsuit, council member Cannon is defending the lawsuit and believes Elwood should be replaced as the council and USB attorney.

"For months now, Mayor Snyder has been transparent and open with the City Council about his concerns with the USB and fees. If this fee is not legal, it will cost us hundreds of thousands of dollars to litigate. If we are entering into contracts unlawfully all of us should pause and seek correction," Cannon said in a written statement.

"My request to Council President Oprisko is to get us new legal counsel that is not financially or ethically conflicted in this matter. The entire council is confused when Clerk-Treasurer Stidham, who is also an attorney at Rhame and Elwood, speaks on the matter. Neither Stidham nor Ken Elwood have written us an opinion for review despite repeated requests. It has been 90 days since the mayor informed us of this problem," Cannon said, adding he hopes this can be resolved outside of the courtroom.

"It is a sad day for Portage when one branch of government is suing the other two. This is a loss to the city of Portage, which will be paying for the legal fees," said Stidham, adding he could not comment on the specifics of the lawsuit, but called the action "bizarre" in that Snyder had signed both the ordinances to change the composition of the USB and for the use of the impervious surface fee system.

Oprisko, the council's president, declined comment.

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Joyce has been a reporter for more than 38 years, including 23 years with The Times. She covers municipal and school government in Valparaiso and Portage.