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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