Morris, 090309 INAGO, AGO 2009-6

Case DateSeptember 03, 2009
CourtIndiana
Mr. Leigh Morris, Chairman
AGO 2009-6
Official Opinion No. 2009-6
State of Indiana Office of the Attorney General
September 3, 2009
         Mr. Leigh Morris, Chairman          Northwest Indiana Regional Development Authority          9800 Connecticut Drive          Crown Point, IN 46307 RE: Northwest Indiana Regional Development Authority          Dear Mr. Morris:          This letter is in response to your request for an opinion regarding the statutory authority of the Porter County Council (Council) to withdraw from the Northwest Indiana Regional Development Authority (RDA) and to instruct the Porter County Auditor to discontinue transferring funds to the RDA development authority fund. Two questions are posed:          1. Is there statutory authority for Porter County to withdraw from the RDA?          2. Is there statutory authority for Porter County to withhold payment of its membership contribution to the RDA?          BRIEF ANSWERS          1. There is no statutory authority for Porter County to withdraw from the RDA as the General Assembly has not created a mechanism for it to do so.          2. Porter County lacks statutory authority to withhold payment of its contribution to the RDA.          ANALYSIS          Membership in the RDA          The General Assembly created the RDA in 2005.1 It established the RDA “as a separate body corporate and politic,” Ind. Code § 36-7.5-2-1, with specified duties, Ind. Code 36-7.5-3-1, and a broad array of duties and powers, Ind. Code §§ 36-7.5-3-1, 36-7.5-3-2.2 These powers and duties are to be discharged in “an eligible county.” Lake County and Porter County are the only two eligible counties. Ind. Code § 36-7.5-1-11.3          The RDA is governed by a seven-member Development Board. Ind. Code § 36-7.5-2-3. The Lake County cities of Gary, East Chicago, and Hammond appoint one (1) member each, while the Lake County Council and the Lake County Board of Commissioners jointly appoint a fourth member. The Porter County Council and the Porter County Board of Commissioners jointly appoint a member as well. The other two members are appointed by the Governor. One of the gubernatorial appointments must, depending on when it is made, be based on a recommendation from the mayor of Valparaiso or Portage. Ind. Code § 36-7.5-2-3.4          The Development Authority Fund          a. Sources of the Fund          The Development Board is to establish and administer a Development Authority Fund (Fund). The primary source of money in the Fund is the $3.5 million annual transfers from each of the following entities: the cities of Gary, Hammond, East Chicago and the counties of Lake and Porter. Although raising the money for payments to the Fund may be accomplished through various mechanisms, Porter County’s share is derived from a county economic development income tax. (CEDIT). Ind. Code § 36-7.5-4-1(b)(2).5 Regardless of their source, however, transfers to the Fund are mandatory.          IC § 36-7.5-4-2 (2009) Revenue transfers to fund
Sec. 2. (a) Except as provided in subsection (b), beginning in 2006 the fiscal officer of each city and county described in IC 36-7.5-2-3(b) shall each transfer three million five hundred thousand dollars ($3,500,000) each year to the development authority for deposit in the development authority fund established under section 1 of this chapter….
(c) The following apply to the transfers required by subsections (a) …:
(1) . . . [T]he transfers shall be made without appropriation by the city or county fiscal body or approval by any other entity.
(2) Except as provided in subdivision (3), after December 31, 2005, each fiscal officer shall transfer eight hundred seventy-five thousand dollars ($875,000) to the development authority fund before the last business day of January, April, July, and October of each year. Food and beverage tax revenue deposited in the fund under IC 6-9-36-8 is in addition to the transfers required by this section. …
(4) The transfers shall be made from one (1) or more of the following:
(A) Riverboat admissions tax revenue received by the city or county, riverboat wagering tax revenue received by the city or county, or riverboat incentive payments received from a riverboat licensee by the city or county.
(B) Any county economic development income tax revenue received under IC 6-3.5-7 by the city or county.
(C) Any other local revenue other than property tax revenue received by the city or county. … (Emphasis added.)
         b. Porter County’s contribution to the Fund          The statutory authority for Porter County’s CEDIT contains specific directions that certain revenue is to be transferred to the RDA and, after the requisite transfer is accomplished, to property tax relief.
IC 6-3.5-7-13.1 (2008) Economic development income tax funds; deposits; uses
(b) As used in this subsection, "homestead" means a
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