Indiana Code Sections
The below summaries of different sections in the Indiana Code have been compiled by the Board of Accounts for your convenience based upon topics we frequently receive inquiries about. The below statutes are not all-inclusive and other applicable laws will need to be considered depending upon the situation. We recommend you consult with an attorney for any legal opinions.
- Compensation and Benefits
Advance Payment of Salaries IC 5-7-3-1 Public Employee Benefits IC 5-10 Deferred Compensation Plans IC 5-10-1.1 Vacation and Other Benefits IC 5-10-6 Employee Interchange Programs IC 5-10-7 Group Insurance for Public Employees IC 5-10-8 Public Retirement and Disability Benefits IC 5-10.2 Public Employee's Retirement Fund (PERF) IC 5-10.3 Record of Hours Worked IC 5-11-9-4 Cost Saving Incentive Award Programs IC 36-1-13 Ghost Employment IC 35-44.1-1-3 Protection of Employees Reporting Violations IC 36-1-8-8 - Deposit and Investment of Funds
Definitions
Board for Depositories IC 5-13-4-2 Closed Depository IC 5-13-4-4 Credit Enhancement IC 5-13-4-5 Credit Enhancement Depository IC 5-13-4-6 Deposit Accounts IC 5-13-4-7 Depository IC 5-13-4-8 Electronic Fund Transfer IC 5-13-4-9 Financial Institution IC 5-13-4-10 Fiscal Body IC 5-13-4-11 Fiscal Officer IC 5-13-4-12 Industrial Development Obligation IC 5-13-4-13 Industrial Development Project IC 5-13-4-14 Insurance Fund IC 5-13-4-15 Investing Officer IC 5-13-4-16 Investment Cash Management System IC 5-13-4-17 Local Board of Finance IC 5-13-4-18 Political Subdivisions IC 5-13-4-19 Public Funds IC 5-13-4-20 Public Officer IC 5-13-4-21 Public Servant IC 5-13-4-21.3 Repurchase Agreement IC 5-13-4-21.5 State Board of Finance IC 5-13-4-22 Statement of Condition IC 5-13-4-23 Transaction Account IC 5-13-4-24 General Rules
Banking
1. Units can transaction business via electronic funds transfer - IC 5-13-5-5
2. Units are required to reconcile public fund balances monthly - IC 5-13-6-1(e)
3. Units can deposit funds only in approved financial institutions - IC 5-13-8-1
4. Units can request a copy of the financial institution’s statement of condition - IC 5-13-8-6(c)
5. Units shall select a financial institution based on certain territorial limits - IC 5-13-8-9
Local Board of Finance
1. Fiscal body of the unit, IC 5-13-7-5(a), unless a county, then IC 5-13-7-1, -2, -3
2. Must meet annually during January - IC 5-13-7-6(a)
3. Investing officer must submit written report annually in January - IC 5-13-7-7(a)
4. May revoke the commission of a depository to do business with a unit - IC 5-13-8-7(d)
Receipts
1. Receipts must be deposited not later than the next business day - IC 5-13-6-1(c)
a. EXCEPTION: If the amount is less than $500, then daily deposit is not required - IC 5-13-6-1(g)
b. EXCEPTION: Townships are required to deposit by the 1st and 15th of each month - IC 5-13-6-1(c)
2. Funds deposited must be deposited in the same form as receipted - IC 5-13-6-1(c)
3. Receipts must be posted daily - IC 5-13-5-1
Disbursements
1. Fiscal officers must use a warrant for each disbursement - IC 5-13-5-2
2. Checks must be signed by proper officers - IC 5-13-5-4
3. Disbursements must be posted daily - IC 5-13-5-1
Investments
1. Any funds of a unit may be invested pursuant to IC 5-13-9 - IC 5-13-9-1
2. Only certain types of securities may be held - IC 5-13-9-2
3. Certain other investments may be held:
a. Money market mutual funds – IC 5-13-9-2.5
b. Repurchase agreements - IC 5-13-9-3
c. Investments issued, assumed, or guaranteed by the International Bank for Reconstruction and Redevelopment of the African Development Bank - IC 5-13-9-3.3
d. Investment in participation in loans under certain circumstances - IC 5-13-9-3.5
e. Transaction accounts and Certificates of Deposit, with solicitation of quotes - IC 5-13-9-4
f. Certificates of Deposit with bank not designated by local board of finance with solicitation of 3 quotes - IC 5-13-9-5
g. Reciprocal program allowed under certain conditions - IC 5-13-9-5.3
4. Final maturity date cannot exceed 2 years - IC 5-13-9-5.6
5. Investment policy may be adopted – 5 year investment – IC 5-13-9-5.7
6. Deposit of interest – IC 5-13-9-6
7. A service charge can be paid - IC 5-13-9-8
8. Funds deposited under IC 5-13-9 are public funds covered by the PDIF – IC 5-13-9-8.5
9. Denies an officer the power to purchase securities on margin or to open a securities margin account – IC 5-13-9-9
10. Allows political subdivisions to establish a joint investment fund and invest monies cooperatively and outlines requirements – IC 5-13-9-10
11. Allows political subdivisions to invest in a local government investment pool through the Treasurer of State – IC 5-13-9-11
Special Treatment for Proceeds from the Sale of a Capital Asset
IC 5-13-9.3 outlines the investment of proceeds received from the sale of certain capital assets.
Investment Cash Management System
IC 5-13-11 allows political subdivisions to contract with a depository for the operation of an investment cash management system and outlines the requirements of the contract.
Public Deposit Insurance Fund
Public funds are covered by the Public Deposit Insurance Fund (PDIF) operated by the Indiana Board for Depositories. See IC 5-13-12, IC 5-13-13, and IC 5-13-14.
- Public Purchasing Law
Definitions
Change Order IC 5-22-2-2 Committee IC 5-22-2-2.7 Contract Modification IC 5-22-2-3 Contractor IC 5-22-2-4 Cost Reimbursement Contract IC 5-22-2-5 Fiscal Body IC 5-22-2-11 Governmental Body IC 5-22-2-13 Internet Purchasing Site IC 5-22-2-13.7 Invitation for Bids IC 5-22-2-14 Offer IC 5-22-2-17 Offeror IC 5-22-2-18 Operating Agreement IC 5-22-2-19 Person IC 5-22-2-20 Policy IC 5-22-2-21 Political Subdivision IC 5-22-2-22 Public Funds IC 5-22-2-23 Purchase IC 5-22-2-24 Purchasing Agency IC 5-22-2-25 Purchasing Agent IC 5-22-2-26 Purchase Description IC 5-22-2-27 Request for Proposals (RFP) IC 5-22-2-28 Rule IC 5-22-2-29 Services IC 5-22-2-30 Solicitation IC 5-22-2-32 Special Fund IC 5-22-2-33 Special Purchase IC 5-22-2-34 Specification IC 5-22-2-35 Supplies IC 5-22-2-38 Using Agency IC 5-22-2-39 Other terms related to purchasing are also defined in IC 5-22-2
General Rules
The Public Purchasing Law, IC 5-22, applies to every expenditure of public funds by a governmental body to purchase equipment, goods, or materials, unless specifically exempted by law, IC 5-22-1-1.
If the item to be purchased (equipment, goods, or materials, a “supply”, IC 5-22-2-38) has a cost equal to or above $150,000, then the purchasing agent must follow the competitive bidding procedures of IC 5-22-7.
If the item to be purchased costs less than $50,000, then the purchasing agent may purchase in accordance with the small purchase policies established by the purchasing agency or under rules adopted by the governmental body, IC 5-22-8-2.
If the item to be purchased costs between $50,000 and $150,000, the purchasing agent may purchase supplies by inviting quotes from at least three (3) persons known to deal in the supplies to be purchased, IC 5-22-8-3.
Purchases and purchase requirements may not be artificially divided so as to constitute a small purchase under IC 5-22-8, IC 5-22-8-1(b).
A governmental body may adopt rules to regulate purchases of the governmental body. IC 5-22-3-3
Exception to the General Rules
Purchase of Services: The purchasing agency of a governmental body may purchase services using any procedure the governmental body or the purchasing agency of the governmental body considers appropriate, IC 5-22-6-1. A governmental body may adopt rules and establish policies governing the purchase of services for the governmental body, IC 5-22-6-2.
Public Works: Public works projects are governed by IC 36-1-12. "Public work" means the construction, reconstruction, alteration, or renovation of a public building, airport facility, or other structure that is paid for out of a public fund or out of a special assessment. The term includes the construction, alteration, or repair of a highway, street, alley, bridge, sewer, drain, or other improvement, IC 36-1-12-2.
Non-applicability of IC 5-22 to certain governmental bodies, see IC 5-22-1-2.
Types of activities excluded from IC 5-22, see IC 5-22-1-3
Special Purchasing Methods
No solicitation of bids or proposals, IC 5-22-10:
1. Competition required, IC 5-22-10-2.
2. Unique opportunity for substantial savings, IC 5-22-10-5.
3. Auctions, IC 5-22-10-6.
4. Data processing contracts or license agreements, IC 5-22-10-7.
5. Compatibility, IC 5-22-10-8.
6. Failure to receive responsive offer, IC 5-22-10-10.
7. Discount, IC 5-22-10-12.
8. Single source, IC 5-22-10-13.
9. Contract with federal or state agency, IC 5-22-10-15.
10. Gifts, IC 5-22-10-17.
Other Special Purchasing Situations
1. Online reverse auctions, IC 5-22-7.5.
2. Qualified nonprofit agencies for persons with severe disabilities, IC 5-22-13.
3. Small business set-aside purchases, IC 5-22-14.
Purchasing Preferences
1. Definitions, IC 5-22-15-2 through IC 5-22-15-6.
2. Indiana business preference in rules adopted under IC 5-22-15-20.
3. Preference for supplies as provided by IC 5-22-15-16, -18, -19, -24.
4. Indiana small business preference as provided by IC 5-22-15-23.
5. Indiana farm product preference as provided by IC 5-22-15-23.5.
6. Absolute preference for coal mined in Indiana, IC 5-22-15-22.
7. Supplies manufactured in the United States, IC 5-22-15-21.
8. Steel products manufactured in the United States, IC 5-22-15-25.
9. Governmental body may adopt rules to implement IC 5-22-15, IC 5-22-15-15.
Other Special Purchasing Requirements
1. Purchase from Department of Correction, IC 5-22-11.
2. Purchase of rehabilitation center products, IC 5-22-12.
3. Petroleum products, IC 5-22-17-10.
Request for Proposal Process
A purchasing agent may award a contract using the procedure provided by IC 5-22-9:
1. Request for proposals (RFP), IC 5-22-9-2, -3, -4, -5, -8.
2. Discussions, final offers, awards, IC 5-22-9-6, -7, -9.
3. Evaluation of proposals, IC 5-22-9-10.
Qualifications and Duties of Offerors
1. Responsible and responsive offerors, IC 5-22-16-1, -2.
2. Registration with Secretary of State - foreign corporation, IC 5-22-16-4.
3. Evidence of financial responsibility, performance bond, IC 5-22-16-5.
4. Non-collusion affirmation required, IC 5-22-16-6.
Contracts
1. Cost plus percentage of cost contracts prohibited, IC 5-22-17-1.
2. Cost reimbursement contract allowed under conditions, IC 5-22-17-2.
3. Time period for contracts - generally 4 years, IC 5-22-17-3.
4. Appropriations, cancellation, IC 5-22-17-3 and IC 5-22-17-5.
5. Award of contracts, separate awards, IC 5-22-17-12.
6. Fixed price per unit, IC 5-22-17-13.
7. Renewal of contracts, IC 5-22-17-4.
8. Early or late performance, IC 5-22-17-6.
9. Policies and rules for inclusion of certain clauses or provisions, IC 5-22-20-1.
10. Adjustments in price, IC 5-22-20-2.
Other Administrative Provisions
Other procedures governing purchasing are set forth in IC 5-22-18:
1. Public notice, competition, IC 5-22-18-1.
2. Cancellation of solicitation and rejection of offers, IC 5-22-18-2.
3. Offers opened after time stated in solicitation, IC 5-22-18-3.
4. Public inspection of contract and purchasing records, IC 5-22-18-4.
5. Delivery of purchase order or lease, IC 5-22-18-5.
6. Determinations are final, IC 5-22-19.
7. Rules and policies on changes in work, IC 5-22-20-1.
8. Adjustments in price, IC 5-22-20-2.
9. Electronic transmission of material, IC 5-22-3-4, IC 5-22-7-5, IC 5-22-7.3-5, IC 5-22-7.3-9, IC 5-22-9-3
- Purchase of Land or Structures
Definitions
Purchasing Agent - IC 36-1-10.5-3
Structure - IC 36-1-10.5-4
This chapter applies to political subdivisions and their agencies. However, this chapter does not apply to certain purchases listed in IC 36-1-10.5-1, including the purchase of real property having a total price (including land and structures, if any) of $25,000 or less.
Required Procedures
1. Resolution passed by the governing body to purchase specified land or structure - IC 36-1-10.5-5(1)
2. Appointment of appraisers - IC 36-1-10.5-5(2)
3. Return of appraisals within 30 days - IC 36-1-10.5-5(3)
4. Limitation on purchase price, no more than average of two appraisals - IC 36-1-10.5-6
- Public Works Law
Definitions
Public Work IC 36-1-12-2 Board IC 36-1-12-1.2(1) Contractor Subcontractor IC 36-1-12-1.2(3) Escrowed Income IC 36-1-12-1.2(4) Escrowed Principal IC 36-1-12-1.2(5) Operating Agreement IC 36-1-12-1.2(6) Person IC 36-1-12-1.2(7) Property IC 36-1-12-1.2(8) Public Fund IC 36-1-12-1.2(9) Retainage IC 36-1-12-1.2(10) Specifications IC 36-1-12-1.2(11) Substantial Completion IC 36-1-12-1.2(12) General Rules
Projects estimated to cost at least $150,000, IC 36-1-12-4: When the cost of a public work will be at least $150,000, the board shall comply with the procedure set forth in IC 36-1-12-4 including but not limited to the preparation of plans and specifications, filing such in a location accessible to the public, and publishing notice of the public work and the date for the meeting to receive bids on the project. The board shall hold a meeting for receiving bids that is open to the public. At such meeting, bids shall be opened, read aloud, and the board shall award the contract to the lowest responsible and responsive bidder or reject all bids. See IC 36-1-12-4 for additional details.
The political subdivision or agency shall require a bond or a certified check to be filed with each bid by a bidder in the amount determined and specified by the board in the notice of the letting if the cost of the public work is estimated to be more than $200,000; and may require a bond or a certified check to be filed with each bid by a bidder in the amount determined and specified by the board in the notice of the letting if the cost of the public work is estimated to be not more than $200,000. Bond requirements are set forth in IC 36-1-12-4.5.
Except as provided in IC 36-1-12-6(b), (c) (use of bonds to finance construction), the board shall award the contract and shall provide the successful bidder with written notice to proceed within 60 days after the date on which bids are opened. If the successful bidder elects to reject the contract and withdraw its bid, notice of that election must be given to the board in writing within 15 days of the 60 day expiration date or any other extension date, IC 36-1-12-6.
Projects estimated to cost between $50,000 and $150,000, IC 36-1-12-4.7: Whenever a public work project is estimated to cost at least $50,000 and less than $150,000, the board shall invite quotes from at least 3 persons known to deal in the class of work proposed to be done by mailing them a notice stating that plans and specifications are on file in a specified office. The board shall hold a meeting for receiving quotes that must be open to the public. All quotes received shall be opened publicly and read aloud at the time and place designated and not before. The board shall award the contract for the public work to the lowest responsible and responsive quoter. The board may reject all quotes submitted. See IC 36-1-12-4.7 for additional details.
Projects estimated to cost less than $50,000, IC 36-1-12-5: A board may proceed under IC 36-1-12-4 or under the following procedure: The board shall invite quotes from at least 3 persons known to deal in the class of work proposed to be done by mailing them a notice stating that plans and specifications are on file in a specified office. The notice must be mailed not less than 7 days before the time fixed for receiving quotes.
The meeting for receiving quotes must be open to the public. All quotes received shall be opened publicly and read aloud at the time and place designated and not before. The board shall award the contract for the public work to the lowest responsible and responsive quoter. The board may reject all quotes submitted.
If the board rejects all quotes, the board may negotiate and enter into agreements for the work in the open market without inviting or receiving quotes if the board establishes in writing the reasons for rejecting the quotes. See IC 36-1-12-5 for additional details.
Prohibition against dividing project, IC 36-1-12-19: The cost of a single public work project may not be divided into 2 or more projects for the purpose of avoiding the requirement to solicit bids. A bidder or quoter or a person who is a party to a public work contract who knowingly violates this law commits a Class A infraction and may not be a party to or benefit from any contract for two 2 years from the date of the conviction. Any board member or officer of a political subdivision who knowingly violates this law commits a Class A infraction.
The cost of a public work project includes the cost of materials, labor, equipment rental, and all other expenses incidental to the performance of the project.
Contract void, IC 36-1-12-16: A contract for public work by a political subdivision or agency is void if it is not let in accordance with IC 36-1-12.
Contracts
1. Contract award - IC 36-1-12-6
2. Contracts for road, street, and bridge work - IC 36-12-8, IC 36-1-12-17(a)
3. Emergency contracts - IC 36-1-12-9
4. Contract must contain subcontractor payment provision - IC 36-1-12-13
5. Retainage on contracts in excess of $100,000 - IC 36-1-12-14
6. Conformance to IC 5-16-6 and IC 5-16-13 - IC 36-1-12-15
7. Contract provision regarding trench safety systems - IC 36-1-12-20
8. Plumbing installation license provision required - IC 36-1-12-21
9. Disqualification from doing business with Iran - IC 36-1-12-23
10. Final payment date and interest - IC 36-1-12-17
11. Void contracts - IC 36-1-12-16
Payment
1.Contractor, subcontractors, claims, retainage - IC 36-1-12-12
2.Contract provision requiring payment to subcontractors and material men - IC 36-1-12-13
3.Payment bond, retainage - IC 36-1-12-13.1
4.Payment disputes, interest - IC 36-1-12-17
Other Requirements
1.Professional services – engineering, architectural, accounting - IC 36-1-12-3.5, IC 5-16-11.1
2.Compliance with approved plans and specifications, work costing $100,000 - IC 36-1-12-7
3.Required state agency approvals for building plans and specifications - IC 36-1-12-10
4.Change orders, 20% limit - IC 36-1-12-18
5.Road, street, or bridge work; price adjustments - IC 36-1-12-5(c), (d); IC 36-1-12-8
6.Highway departments - IC 36-1-12-3(f), IC 4-3-19-2(2)
7.County award for sand, gravel, asphalt, or crushed stone - IC 36-1-12-4(c)
8.Filing final record drawings with Division of Fire and Building Safety - IC 36-1-12-11
9.Municipal and county hospitals - IC 36-1-12-3(e)
10.Financing of public works projects - IC 36-9-41
Exceptions
1.Routine operation, repair, or maintenance costing less than $150,000 - IC 36-1-12-4.9
2.Use of own workforce, cost less than $250,000 - IC 36-1-12-3, IC 36-1-12-5(e), (f)
3.Emergencies - IC 36-1-12-9
4.Utilities - IC 36-1-12-1(b)
5.Hospitals - IC 36-1-12-1(c)
6.Design-build contract - IC 36-1-12-1(e)(1)
7.Utility efficiency program, guaranteed savings contract - IC 36-1-12-1(e)(2)
8.Operating agreement under IC 5-23 - IC 36-1-12-1(f)
- Lease and Lease-Purchasing
Definitions
Leasing Agent IC 36-1-10-2 Parking Facility IC 36-1-10-2 Structure IC 36-1-10-2 System IC 36-1-10-2 Transporation Project IC 36-1-10-2 General Rules
Parties: IC 36-1-10 applies to political subdivisions and agencies of political subdivisions that determine to acquire structures, transportation projects, or systems by lease or lease-purchase; a convention and visitor bureau established under IC 6-9-2 that determines to acquire a visitor center by lease or lease purchase; and a convention and visitor commission established by IC 6-9-11 that determines to acquire a sports and recreation facility by lease or lease purchase - IC 36-1-10-1(a).
A political subdivision or agency may lease property from a profit or not-for-profit corporation organized under Indiana law or admitted to do business in Indiana; a partnership, association, limited liability company, or firm; and an individual - IC 36-1-10-3.
Petition and determination of need: A leasing agent may not lease a structure, transportation project, or system unless the leasing agent receives a petition signed by 50 or more taxpayers of the political subdivision or agency; and the fiscal body of the political subdivision determines, after investigation, that the structure, transportation project, or system is needed - IC 36-1-10-7(a).
School corporation leasing agents may not lease a structure, transportation project, or system unless the governing body of the school corporation determines, after investigation, that the structure, transportation project, or system is needed - IC 36-1-10-7(b).
Structures and transportation projects: A leasing agent who wants to lease a structure or transportation project must comply with IC 36-1-10 - IC 36-1-10-4.1(a).
Systems: A leasing agent who wants to lease a system must comply with IC 36-1-10 or IC 5-22 - IC 36-1-10-4.1(a).
Leases without an option to purchase: A leasing agent who enters into a lease under IC 36-1-10-4.1 without an option to purchase must follow the procedure prescribed by IC 36-1-10-5 (below) - IC 36-1-10-4.1(b).
Notwithstanding IC 36-1-10-6, 12, 16, 17, the following procedure shall be followed whenever a lease does not contain an option to purchase: The term of the lease may not be longer than ten (10) years; however, a lease may be for a longer term if the lease is approved by the department of local government finance; the lease must provide that the lease is subject to annual appropriation by the appropriate fiscal body; the leasing agent must have a copy of the lease filed and kept in a place available for public inspection - IC 36-1-10-5.
A leasing agent may lease part of a structure - IC 36-1-10-5.
Leases with option to purchase: The lease may provide that the leasing agent has an option to purchase the property. The terms and conditions of the purchase must be specified in the lease. Whenever the leasing agent exercises an option to purchase the property, then the political subdivision or agency may issue and sell bonds for the purpose of procuring money to pay the purchase price. If the leasing agent does not exercise an option to purchase the property, then upon the expiration of the lease and upon full performance by the leasing agent, the property becomes the absolute property of the political subdivision or agency. The lessor shall convey title to the political subdivision or agency - IC 36-1-10-9.
Other Requirements and Provisions
1. Lease term limit of 50 years - IC 36-1-10-6
2. Joint leasing by 2 or more leasing agents - IC 36-1-10-8
3. Renewal option - IC 36-1-10-9(a)
4. Purchase option - IC 36-1-10-9(a)
5. Plans, specifications, and estimates - IC 36-1-10-10
6. Title to land on which structure will be built; conveyance to build structure - IC 36-1-10-11
7. Lease in anticipation of acquisition or construction; bond - IC 36-1-10-12
8. Notice of hearing to discuss lease terms; notice of execution of lease - IC 36-1-10-13
9. Petition to object to lease; DLGF notice and hearing - IC 36-1-10-14
10. Action to contest validity of lease - IC 36-1-10-15
11. Revenue bond refinancing, conveyance of structure, option - IC 36-1-10-16
12. Annual appropriation and tax levy - IC 36-1-10-17
13. Tax exemption of leased property - IC 36-1-10-18
14. Assignment or conveyance of lease - IC 36-1-10-19
15. Bond sale by non-profit lessor corporation - IC 36-1-10-21
Exceptions
IC 36-1-10 does not apply to the lease of library buildings under IC 36-12-10, unless the library board of the public library adopts a resolution to proceed under this chapter instead of IC 36-12-10; the lease of school buildings under IC 20-47; a hospital established and operated under IC 16-22 or IC 16-23; a health and hospital corporation established and operated under IC 16-22-8; or boards of aviation commissioners established under IC 8-22-2 - IC 36-1-10-1(b).
- Disposal of Property
Definitions
Disposal IC 36-1-11-2(1) Disposing Agent IC 36-1-11-2(2) Key Number IC 36-1-11-2(3) Operating Agreement IC 36-1-11-2(4) Person IC 36-1-11-2(5) Property IC 36-1-11-2(6) Tract IC 36-1-11-2(7) Abutting Landowner IC 36-1-11-5(a) Offering Price IC 36-1-11-5(b) Real Property acquired by Tax Default IC 36-1-11-5.9(b) Note: For purposes of IC 36-1-11, "property" means all fixtures and real property to be included in a disposal [IC 36-1-11-2(6)], and does not include personal property unless otherwise noted in the particular statute. See below for a discussion of the disposal of personal property pursuant to IC 5-22-22.
General Rules
Applicability: IC 36-1-11 applies to the disposal of property by political subdivisions and agencies of political subdivisions, except as provided in IC 36-1-11-1(b), IC 36-1-11-1(a). Notable exceptions in IC 36-1-11-1(b) include the disposal of property by a redevelopment commission; the lease of school buildings under IC 20-47; the sale or lease of property by a unit to an Indiana nonprofit corporation organized for educational, literary, scientific, religious, or charitable purposes that is exempt from federal income taxation under Section 501 of the Internal Revenue Code or the sale or reletting of that property by the nonprofit corporation; the disposal of personal property by a library board under IC 36-12-3-5(c); the disposal of curricular materials that will no longer be used by school corporations under IC 20-26-12; and the disposal of property to a person under an agreement between the person and a political subdivision or an agency of a political subdivision under IC 5-23. See IC 36-1-11-1(b) for additional exceptions.
Approval, IC 36-1-11-3: Disposal of real property under this chapter is subject to the approval of the executive of the political subdivision or agency; or the fiscal body of the political subdivision or agency, if there is no executive. See exceptions in IC 36-1-11-5, -5.5, -5.9, -8, -18.
The executive or fiscal body may not approve a disposal of property without conducting a public hearing after giving notice under IC 5-3-1. However, in a municipality the executive shall designate a board or commission of the municipality to give notice, conduct the hearing, and notify the executive of its recommendation.
Except as provided in IC 36-1-11-3.2, in addition, the fiscal body of a unit must approve every sale of real property having an appraised value of $ 50,000 or more; every lease of real property for which the total annual rental payments will be $ 25,000 or more; and every transfer of real property under IC 36-1-11-14 or IC 36-1-11-15.
Appraisals and disposal procedure, IC 36-1-11-4: The disposing agent shall first have the property appraised by 2 appraisers. The appraisers must be professionally engaged in making appraisals; licensed under IC 25-34.1; or employees of the political subdivision familiar with the value of the property.
After the property is appraised, the disposing agent shall publish a notice in accordance with IC 5-3-1 setting forth the terms and conditions of the sale and, when an auction is used, may engage an auctioneer licensed under IC 25-6.1 to advertise the sale and to conduct a public auction who shall also provide advertising in addition to any other notice required by law and shall include a detailed description of the property to be sold stating the key numbers, if any, of the tracts within that property.
If the disposing agent determines that the best sale of the property can be made by letting the bidders determine certain conditions of the sale (such as required zoning or soil or drainage conditions) as a prerequisite to purchasing the property, the disposing agent may permit the bidders to specify those conditions.
The notice must state that bids will be received beginning on a specific date; the sale will continue from day to day for a period determined by the disposing agent of not more than 60 days; the property may not be sold to a person who is ineligible under IC 36-1-11-16; and a bid submitted by a trust must identify each beneficiary and settlor empowered to revoke or modify the trust.
A bid must be open to public inspection. A bidder may raise the bidder's bid, and subject to the use of an auctioneer, that raise takes effect after the board has given written notice of that raise to the other bidders.
The disposing agent may also engage an auctioneer licensed under IC 25-6.1 to conduct a sale by public auction. The auction may be conducted either at the time for beginning the sale in accordance with the public notice or after the beginning of the sale. The disposing agent shall give each bidder who has submitted a bid written notice of the time and place of the auction.
The disposing agent may conduct a public auction by electronic means. The disposing agent cannot charge an additional fee for holding an electronic sale. He must publish notice that includes a statement indicating the decision to hold an electronic sale - IC 36-1-11-4(i).
The disposing agent may, before expiration of the time set out in the notice, sell the property to the highest and best bidder. The highest and best bidder must have complied with any requirement under IC 36-1-11-(c)(4). However, the disposing agent may sell the property for less than 90% of the average of the 2 appraisals of the tracts only after an additional notice stating the amount of the bid to be accepted is published in accordance with IC 5-3-1. The disposing agent may reject all bids. If the disposing agent rejects all bids, the disposing agent must make a written determination to reject all bids explaining why all bids were rejected.
If the disposing agent determines that, in the exercise of good business judgment, the disposing agent should hire a broker or auctioneer to sell the property, the disposing agent may do so and pay the broker or auctioneer reasonable compensation out of the gross proceeds of the sale. A disposing agent may hire a broker to sell real property directly rather than using the bid process under IC 36-1-11-4(c) through (f) if in the case of a political subdivision other than a school corporation the disposing agent publishes a notice of the determination to hire the broker in accordance with IC 5-3-1; and the property has been up for bid for at least 60 days before the broker is hired, and either no bids were received or the disposing agent has rejected all bids that were received; or in the case of a school corporation, the disposing agent publishes a notice of the determination to hire the broker in accordance with IC 5-3-1.
The disposing agent may hire one of the appraisers as the broker or auctioneer.
If a broker is hired under IC 36-1-11-4(g), the property may not be sold to a person who is ineligible under IC 36-1-11-16; if the property is sold to a trust (as defined in IC 30-4-1-1(a)), the following information must be placed in the public record relating to the sale: the name of each beneficiary of the trust and each settlor empowered to revoke or modify the trust.
See IC 36-1-11-4 for additional requirements and conditions.
Governmental entity transfers and exchanges, IC 36-1-11-8: A transfer or exchange of property may be made with a governmental entity upon terms and conditions agreed upon by the entities as evidenced by adoption of a substantially identical resolution by each entity. Such a transfer may be made for any amount of real property, cash, or other personal property, as agreed upon by the entities - IC 36-1-11-8.
Exchanges with non-governmental entities, IC 36-1-11-7: An exchange may be made with a person who is not a governmental entity and eligible under IC 36-1-11-16 only after advertisement following as nearly as practical the procedure prescribed by IC 36-1-11-4, with the property the disposing agent conveys to be partial or full payment for the property the disposing agent receives.
Leasing, IC 36-1-11-10: A disposing agent may lease property rather than sell, transfer, or exchange it under IC 36-1-11 only if the disposing agent determines that a lease rather than a sale, transfer, or exchange would be in the best interest of the disposing agent's political subdivision or agency and the public.
The disposing agent shall first have the property appraised in the manner prescribed in IC 36-1-11-4(b), except that the appraisers shall determine the fair market rental value of the property.
The disposing agent shall receive bids in the manner prescribed in IC 36-1-11-4 and lease the property to the highest and best bidder. The disposing agent may reject all bids. If the disposing agent rejects all bids, the disposing agent must make a written determination to reject all bids explaining why all bids were rejected.
The disposing agent shall determine the terms and conditions of any lease under IC 36-1-11-10, which may include options to renew and options to purchase. The property may not be leased to a person who is ineligible under IC 36-1-11-16.
The terms of a lease with option to purchase may provide that all or part of the rental payments under the lease apply to the purchase price. The purchase price must be equal to at least the minimum sale price determined under IC 36-1-11-4(f).
Property owned by a political subdivision or agency may be leased for a term longer than 3 years if the lease is approved by the fiscal body of the political subdivision.
The disposing agent may lease the real property under this section for a value that is less than 90% of the appraised fair market rental value as determined by the average of the 2 appraisals under IC 36-1-11-4(b) only after publishing an additional notice in accordance with IC 5-3-1, stating the amount of the bid to be accepted. If the disposing agent rejects all bids, the disposing agent must make a written determination to reject all bids explaining why all bids were rejected.
Exceptions
1. Real property with assessed value of less than $15,000; public right of way, IC 36-1-11-5
2. School corporation sale or transfer to not-for-profit corporation - IC 36-1-11-5.5
3. Disposal of real and personal property to nonprofit corporation - IC 36-1-11-5.6
4. Fire departments - IC 36-1-11-5.7
5. Property acquired by tax default - IC 36-1-11-5.9
6. Purchase of property with a condition that similar property be traded or exchanged - IC 36-1-11-9
7. Disapproval rules for Marion County - IC 36-1-11-3.1
8. Special approval rules for Gary, East Chicago, and Hammond - IC 36-1-11-3.2
9. School corporation in LaPorte County - IC 36-1-11-18
See IC 36-1-11 for laws regarding other exceptions not listed here.
Other Disposal Options and Requirements
1. Sale with leaseback or leaseback with option to repurchase - IC 36-1-11-4.1
2. Sale to promote economic development or compatible land use planning - IC 36-1-11-4.2
3. Execution of deed to establish title or end dispute - IC 36-1-11-11
4. Alternative disposal method - IC 36-1-11-12
5. Leasing county-owned property - IC 36-1-11-13
6. Reconveyance of surplus donated property - IC 36-1-11-14
7. Reconveyance of surplus property donated by a not-for-profit corporation - IC 36-1-11-15
8. Prohibition from purchasing for delinquent taxpayers - IC 36-1-11-16
9. Terms of reconveyance - IC 36-1-11-17
10. Disposal of property by school corporation - IC 20-26-7
See IC 36-1-11 for laws regarding other disposal options and requirements not listed here.
- Disposal of Personal Property
Definitions
Change Order IC 5-22-2-2 Committee IC 5-22-2-2.7 Contract Modification IC 5-22-2-3 Contractor IC 5-22-2-4 Cost Reimbursement Contract IC 5-22-2-5 Fiscal Body IC 5-22-2-11 Governmental Body IC 5-22-2-13 Internet Purchasing Site IC 5-22-2-13.7 Invitation for Bids IC 5-22-2-14 Offer IC 5-22-2-17 Offeror IC 5-22-2-18 Operating Agreement IC 5-22-2-19 Person IC 5-22-2-20 Policy IC 5-22-2-21 Political Subdivision IC 5-22-2-22 Public Funds IC 5-22-2-23 Purchase IC 5-22-2-24 Purchasing Agency IC 5-22-2-25 Purchasing Agent IC 5-22-2-26 Purchase Description IC 5-22-2-27 Request for Proposals (RFP) IC 5-22-2-28 Rule IC 5-22-2-29 Services IC 5-22-2-30 Solicitation IC 5-22-2-32 Special Fund IC 5-22-2-33 Special Purchase IC 5-22-2-34 Specification IC 5-22-2-35 Supplies IC 5-22-2-38 Using Agency IC 5-22-2-39 General Rules
Applicability: IC 5-22-22 applies only to the disposal of personal property (as contrasted to real property, such as land and structures) owned by a governmental body, and does not apply to dispositions of property described in IC 5-22-21-1(b), IC 36-1-11-5.5, and IC 36-1-11-5.7. IC 5-22-22 also does not apply to any of the following as set forth in IC 5-22-22-1(c): the lease of school buildings under IC 20-47; the sale of land to a lessor in a lease-purchase contract under IC 36-1-10; the disposal of property by a redevelopment commission; the disposal of a municipally owned utility under IC 8-1.5; the sale or lease of property by a unit (as defined in IC 36-1-2-23 ) to an Indiana nonprofit corporation organized for educational, literary, scientific, religious, or charitable purposes that is exempt from federal income taxation under Section 501 of the Internal Revenue Code or the sale or reletting of that property by the nonprofit corporation; the disposal of surplus property by a hospital established and operated under IC 16-22-1, IC 16-22-2, IC 16-22-2.5, IC 16-22-3, IC 16-22-4, IC 16-22-5, IC 16-22-8, IC 16-23-1, or IC 16-24-1; the disposal of personal property by a library board under IC 36-12-3-5(c); the disposal of curricular materials that will no longer be used by school corporations under IC 20-26-12; the disposal of residential structures or improvements by a municipal corporation without consideration to a governmental body; and the disposal of property to a person under an agreement between the person and a governmental body under IC 5-23. See IC 5-22-22-1(c) for additional exceptions.
Surplus property, IC 5-22-22-3: A purchasing agency may sell property that has been left in the custody of an officer or employee of a governmental body and has remained unclaimed for more than one year; or belongs to the governmental body but is no longer needed or is unfit for the purpose for which it was intended.
Use of auction based on monetary value, IC 5-22-22-4: If the property to be sold is one item with an estimated value of $ 1,000 or more, or more than one item with an estimated total value of $ 5,000 or more, the purchasing agency may engage an auctioneer licensed under IC 25-6.1 to advertise the sale and conduct a public auction.
The advertising by an auctioneer under this section must include a detailed description of the property to be sold.
The purchasing agency shall pay an auctioneer who conducts a sale under this section from the gross proceeds of the sale received before other expenses and liens are paid.
Internet auction site, IC 5-22-22-4.5: The purchasing agency may sell surplus property using an Internet auction site that is approved by the office of technology established by IC 4-13.1-2-1, and is linked to the electronic gateway administered under IC 4-13.1-2-2(a)(5) by the office of technology.
The purchasing agency's posting of the sale on the Internet auction site must include a detailed description of the surplus property to be sold.
The purchasing agency may pay the costs of conducting the auction on the Internet site as required by the person maintaining the auction site.
Public sale without auctioneer or Internet auction site, IC 5-22-2-5: If an auctioneer is not engaged under IC 5-22-22-4; or the surplus property is not sold through an Internet auction site under IC 5-22-22-4.5; the purchasing agency shall sell the property at a public sale or by sealed bids delivered to the office of the purchasing agency before the date of sale.
Advertisement of the sale shall be made in accordance with IC 5-3-1.
All sales shall be made to the highest responsible bidder.
Notice by publication, IC 5-22-22-11: Notice of a sale under IC 5-22-22 must be given by publication of the time, place, and terms of the sale, as provided in IC 5-3-1 in the county where the property is located. The publication shall be made at least 15 days before the date of the sale.
Notice under this section is required in addition to notice given by an auctioneer under IC 5-22-22-4, or provided by an Internet auction site under IC 5-22-22-4.5.
Exceptions
Sale without advertising under certain monetary limits, IC 5-22-22-6: If the property to be sold is one item, with an estimated value of less than $ 1,000; or more than one item, with an estimated total value of less than $ 5,000; the purchasing agency may sell the property at a public or private sale or transfer the property, without advertising.
Exchange with another governmental entity, IC 5-22-22-10: A purchasing agency may exchange property with another governmental body upon terms and conditions agreed upon by the governmental bodies as evidenced by adoption of a substantially identical resolution by each entity.
A transfer under this section may be made for any amount of property or cash as agreed upon by the governmental bodies.
Other Disposal Options and Requirements
1. Recycled materials - IC 5-22-22-7
2. Worthless property - IC 5-22-22-8
3. Disposition of law enforcement vehicles - IC 5-22-22-9
4. Transfer to volunteer fire department - IC 5-22-22-12
- Public Proceedings
General Rules
1. All meetings of the governing bodies must be open at all times for the public to observe and record - IC 5-14-1.5-3.
a. EXCEPTION - Governing bodies can meet in executive session, IC 5-14-1.5-6.1. Final action on matters discussed in executive session must be taken at a meeting open to the public.
2. Serial meetings are prohibited, IC 5-14-1.5-3.1.
3. Members may communicate electronically at a meeting, but may NOT participate in final action and are not considered to be present, IC 5-14-1.5-3.5.
4. Public notice of the date, time, and place of any meeting must be given at least 48 hours before the meeting
a. EXCEPTION – reconvened meetings can be held when the announcement of the date, time, and place of the reconvened meeting is made at the original meeting, and there is no change to the agenda
5. If an agenda is being used, it must be posted at the entrance to the meeting prior to the meeting, IC 5-14-1.5-4.
6. Minutes of the meeting must be kept and subsequently are public record, IC 5-14-1.5-4.
- Public Records
Definitions - Access to Records
Copy IC 5-14-3-2(b) Criminal Intelligence Information IC 5-14-3-2(c) Direct Cost IC 5-14-3-2(d) Electronic Map IC 5-14-3-2(e) Enhanced Access IC 5-14-3-2(f) Facsimile Machine IC 5-14-3-2(g) Inspect IC 5-14-3-2(h) Investigatory Record IC 5-14-3-2(i) Offender IC 5-14-3-2(j) Patient IC 5-14-3-2(k) Person IC 5-14-3-2(l) Provider IC 5-14-3-2(m) Public Agency IC 5-14-3-2(n) IC 5-14-3-2.1 Public Record IC 5-14-3-2(o) Standard-Sized Documents IC 5-14-3-2(p) Trade Secret IC 5-14-3-2(q) Work Product of an Attorney IC 5-14-3-2(r) General Rules - Access to Records
1. Request for public records - IC 5-14-3-3(a).
2. Reasonable time for response - IC 5-14-3-3(b).
3. Access to Electronic Data Storage System - IC 5-14-3-3(c)(d).
4. Ordinance to prohibit use of public records for commercial purpose - IC 5-14-3-3(e).
5. Creation of lists - IC 5-14-3-3(f).
6. Enhanced Access - IC 5-14-3-3.6.
Records Exempt from Disclosure
1. Unless access in specifically required by state or federal statute or court order - IC 5-14-3-4(a).
2. Exempt records - IC 5-14-3-4(b).
3. Job title/job description of law enforcement officers - IC 5-14-3-4.3.
4. Investigatory records - IC 5-14-3-4.4.
5. Negotiation records, final offers - IC 5-14-3-4.7.
6. Office of tourism - IC 5-14-3-4.8.
7. Ports of Indiana negotiation records - IC 5-14-3-4.9.
8. Information relating to arrest or summons; jailed persons - IC 5-14-3-5.
9. Records sealed by court action - IC 5-14-3-5.5.
10. Partially disclosable records - IC 5-14-3-6.
11. Continued confidentiality of public records - IC 5-14-3-6.5.
12. Protection against loss, alteration, destruction and unauthorized access - IC 5-14-3-7.
13. Denial of access to records - IC 5-14-3-9.
14. Civil penalties that may be imposed - IC 5-14-3-9.5.
15. Failure to protect classified confidential information - IC 5-14-3-10.
General Rules Regarding Fees
1. No fee to search or examine and review a record - IC 5-14-3-8(b).
2. Limit on fee schedule - IC 5-14-3-8(d).
3. Reasonable access to machine capable of reproducing copy - IC 5-14-3-8(e).
4. Court order for fee - IC 5-14-3-8(f).
5. Fee for duplicate of computer tape, computer disc, or microfilm - IC 5-14-3-8(g).
6. Fee for enhanced access - IC 5-14-3-8(h).
7. Inspection by means of electronic device - IC 5-14-3-8(j).
8. Waiving fee for electronic map - IC 5-14-3-8(k).
9. Enhanced Access fund - IC 5-14-3-8.3.
10. Electronic map generation fund - IC 5-14-3-8.5.
Definitions - Preservation and Destruction of Public Records
Administration IC 5-15-6-1.1 County Commission or Commission IC 5-15-6-1.2 Indiana State Archives IC 5-15-6-1.3 Local Government IC 5-15-6-1.4 Public Record or Record IC 5-15-6-1.5 Records Management IC 5-15-6-1.6 Retention Schedule IC 5-15-6-1.7 General Rules - Preservation and Destruction of Public Records
1. The governing board is charged with the duty to preserve, keep, maintain, or file all the official records of the political subdivision - IC 5-15-6-1.
2. Local public records commission should be established in each county - IC 5-15-6-1.
a. Must implement retention schedules - IC 5-15-6-2.5(a).
b. Receive requests to destroy, transfer, or otherwise dispose of records that are not covered by the approved retention schedule - IC 5-15-6-2.5(b).
c. Receive documentation of destruction, transfer, or other disposal of records - IC 5-15-6-2.5(d).
d. Record in minutes the order of destruction, removal, or transfer of public records - IC 5-15-6-7(a)..
e. Send a copy of the order of destruction, removal, or transfer of public records to Indiana Archives and Records Administration (IARA), genealogical society, and historical society - IC 5-15-6-7(b).
3. Records can’t be destroyed until the earlier of: (1) audit report of SBOA filed or (2) records have been copied or reproduced in accordance with a retention schedule or with written consent of the IARA - IC 5-15-6-3.
4. Records that are less than 3 years old typically cannot be destroyed, removed, or transferred from any office - IC 5-15-6-4.
5. Records that have official or historical value may be able to be transferred to the IARA - IC 5-15-6-5 & 6.
6. Any person who recklessly, knowingly, or intentionally destroys or damage any public record commits a Level 6 felony - IC 5-15-6-8.
Records to be Retained Permanently
1. Minutes of the meetings of all board/commissions, etc.
2. Ledgers of Receipts and Disbursements as permanent financial records
3. Bond records, as evidence of indebtedness and payment.
Suggested Procedures
As a starting point for disposing of old records, an inventory of the office and the storerooms should be taken. The inventory should list the type of record and the year such record was made.
After the inventory is completed, the items on the inventory should be researched against the retention schedules available on the IARA website: www.in.gov/iara. The retention schedule should be used to determine which of the records may be destroyed, which must be retained and the length of time for the retention for each record. If a record is not found on the retention schedule, a form (Request for Permission to Destroy or Transfer Certain Public Records – PR-1) needs to be submitted to the County Commissioners of Public Records documenting what records are being requested to be destroyed. All records that are destroyed should be documented on a second form (Notice of Destruction). A copy of the Notice of Destruction should also be sent to the County Commissioners and to the IARA. Both forms are available from the IARA website.
- Home Rule
Applicability
The Home Rule Law, IC 36-1-3, applies to all units: counties, municipalities, and townships, IC 36-1-3-1 - 36-1-2-23.
Policy and Presumption
The policy of the state is to grant units all the powers that they need for the effective operation of government as to local affairs - IC 36-1-3-2. A unit has all powers granted it by statute and all other powers necessary or desirable in the conduct of its affairs, even though not granted by statute - IC 36-1-3-4(b).
Limitations
If there is a constitutional or statutory provision requiring a specific manner for exercising a power, a unit wanting to exercise the power must do so in that manner - IC 36-1-3-6(a).
A unit may exercise any power it has to the extent that the power is not expressly denied by the Indiana Constitution or by statute and is not expressly granted to another entity. A township may not exercise power the township has if another unit in which all or part of the township is located exercises that same power - IC 36-1-3-5.
Powers Specifically Prohibited
A unit does not have the following powers - IC 36-1-3-8:
1. The power to impose duties on another political subdivision, except as expressly granted by statute.
2. The power to impose a tax, except as expressly granted by statute.
3. The power to impose a license fee greater than that reasonably related to the administrative cost of exercising a regulatory power.
4. The power to impose a service charge or user fee greater than that reasonably related to reasonable and just rates and charges for services.
5. The power to regulate conduct that is regulated by a state agency, except as expressly granted by statute.
6. The power to prescribe a penalty of a fine above certain amounts.
7. The power to invest money, except as expressly granted by statute.
A township does not have the following powers, except as expressly granted by statute: the power to require a license or impose a license fee; the power to impose a service charge or user fee; or the power to prescribe a penalty.
See IC 36-1-3-8 for additional prohibitions.
Procedures for the Exercise of Powers
IC 36-1-3-6 provides that if there is no constitutional or statutory provision requiring a specific manner for exercising a power, a unit wanting to exercise the power must either:
1. If the unit is a county or municipality, adopt an ordinance prescribing a specific manner for exercising the power;
2. If the unit is a township, adopt a resolution prescribing a specific manner for exercising the power; or
3. Comply with a statutory provision permitting a specific manner for exercising the power.
An ordinance must be adopted as follows:
1. In a municipality, by the legislative body of the municipality.
2. In a county subject to IC 36-2-2.5, IC 36-2-3.5, or IC 36-3-1, by the legislative body of the county.
3. In any other county, by the executive of the county.
Other Provisions
See IC 36-1-3 for additional guidance regarding home rule laws, including information related to landlords, auxiliary containers, jurisdictional disputes, and livestock.
- Conflicts of Interest
Definition
Public Servant IC 35-31.5-2-261 Pecuniary Interest IC 35-44.1-1-4(a)(3) Dependent IC 35-44.1-1-4(a)(1) Consultant IC 5-16-11-2 Entity IC 5-16-11-3.5 Clerk IC 5-16-11-1 Fiscal Body IC 36-1-2-6 General Rules
Public Servants: A public servant commits conflict of interest, a Level 6 Felony, if he has a pecuniary interest in or profits from a contract or purchase connected with the governmental entity served by the public servant, without proper disclosure or another exception - IC 35-44.1-1-4(b).
Consultants: A consultant has a conflict of interest if an entity gives the consultant or his family a gift valued at more than $100; the consultant or his family has an interest in real property that changes in value if a contract is awarded to the entity; or the consultant or his family is connected to the entity as an employee or by way of an ownership interest.
Exceptions
Public Servants:
1. Compensation and Expense Reimbursement - IC 35-44.1-1-4(c)(1)
2. De Minimis Interest - $250 - 12 month period - IC 35-44.1-1-4(c)(2)
3. Utility Services - IC 35-44.1-1-4(c)(3)
4. Ethics Commission Approval - IC 35-44.1-1-4(c)(5)
5. Written Disclosure - IC 35-44.1-1-4(c)(6)
6. Hospital Board Member or Physician - IC 35-44.1-1-4(c)(7)
Consultants:
1. Public employees – IC 5-16-11-2, IC 34-6-2-38
2. Monetary thresholds – IC 5-16-11-5.5(a)(1)(B), -5.5(a)(2)(A), -5.5(a)(7)
Disclosure
Public Servants:
1. Requirements – IC 35-44.1-1-4(d)
2. Filing – State Board of Accounts and County Clerk – IC 35-44.1-1-4(d)(6)
Consultants:
1. Filing the disclosure – State Ethics Commission, clerk or fiscal body – IC 5-16-11-6, 7, 8
2. Failure to file – IC 5-16-11-11
3. False disclosure – perjury – IC 5-16-11-12
- Interlocal Cooperation and Agreements
Applicability
The Interlocal Cooperation Law, IC 36-1-7, applies to the state; all political subdivisions; state agencies; public instrumentalities and public corporate bodies created by state law; another state to the extent authorized by the law of that state; political subdivisions of states other than Indiana to the extent authorized by laws of the other states; agencies of the federal government to the extent authorized by federal laws; and Indiana charter schools - IC 36-1-7-1.
General Rules
When the phrase “interlocal cooperation agreement” or “interlocal agreement” is used in this chapter, it means an agreement that is intended to comply with IC 36-1-7-3.
Joint Exercise of Powers
A power that may be exercised by an Indiana political subdivision and by one or more other governmental entities may be exercised by one or more entities on behalf of others or jointly by the entities. Entities that want to do this must, by ordinance or resolution, enter into a written agreement under IC 36-1-7-3 or -9, IC 36-1-7-2(a).
Indiana governmental entities that want only to buy, sell, or exchange services, supplies, or equipment between or among themselves may enter into contracts to do this and follow IC 36-1-7-12 (below), IC 36-1-7-2(b).
Administration - Separate Entity or Joint Board
An interlocal agreement must be administered through a separate legal entity or a joint board - IC 36-1-7-3(a)(5).
A separate legal entity or joint board established by an interlocal agreement has only the powers delegated to it by the agreement. The agreement may not provide for members, directors, or trustees of the separate legal entity or joint board to make appointments (either individually or jointly) to fill vacancies on the separate legal entity or joint board - IC 36-1-7-3(b).
Contents of Joint Agreements
An interlocal agreement must provide for its (1) duration; (2) purpose; (3) the manner of financing, staffing, and supplying the joint undertaking and of establishing and maintaining a budget; (4) the methods that may be employed in accomplishing the partial or complete termination of the agreement and for disposing of property upon partial or complete termination; (5) administration through a separate legal entity, the nature, organization, composition, and powers of which must be provided, or a joint board composed of representatives of the entities that are parties to the agreement, and on which all parties to the agreement must be represented; and (6) the manner of acquiring, holding, and disposing of real and personal property used in the joint undertaking, whenever a joint board is created. In addition, such an agreement may provide for any other appropriate matters - IC 36-1-7-3(a).
Approvals - Attorney General - Receiving, Disbursing, and Accounting for Funds
Under IC 36-1-7-4(a), if an interlocal agreement (1) involves as parties only Indiana political subdivisions; or an Indiana political subdivision and a public instrumentality or a public corporate body created by state law; (2) is approved by the fiscal body of each party that is an Indiana political subdivision either before or after the agreement is entered into by the executive of the party; and (3) delegates to the treasurer or disbursing officer of one of the parties that is an Indiana political subdivision the duty to receive, disburse, and account for all monies of the joint undertaking; then the approval of the attorney general is not required - IC 36-1-7-4(a).
If IC 36-1-7-4(a) does not apply, an interlocal agreement must be submitted to the attorney general for the attorney general's approval. The attorney general shall approve the agreement unless the attorney general finds that it does not comply with the law, in which case the attorney general shall detail in writing for the parties the specific respects in which the agreement does not comply. If the attorney general fails to disapprove the agreement within 60 days after it is submitted to the attorney general, it is considered approved - IC 36-1-7-4(b).
Recording and Filing of Agreements with Recorder and SBOA Before Effective
Before it takes effect, an interlocal agreement must be recorded with the county recorder. Not later than 60 days after it takes effect, such an agreement must be filed with the SBOA for audit purposes - IC 36-1-7-6.
Interstate Compacts
If any entities of other jurisdictions are parties to an interlocal agreement, the agreement constitutes an interstate compact - IC 36-1-7-8.
Parties Authorized to Provide Funds and Services
An entity entering into an interlocal agreement under this chapter may appropriate monies and provide personnel, services, and facilities to carry out the agreement - IC 36-1-7-11.
Purchase, Sale, and Exchange of Services, Supplies, or Equipment
IC 36-1-7-12 provides:
1. Whenever a contract provides for the purchase, sale, or exchange of services, supplies, or equipment between or among Indiana governmental entities only, no notice by publication or posting is required.
2. Whenever a contract provides for one Indiana governmental entity to make a purchase for another, compliance by the one with the applicable statutes governing public bids constitutes compliance by the other.
3. A governmental entity may make a purchase from any other governmental entity or under another governmental entity's referenced written contract if there is compliance with state purchasing law by the original purchasing unit.
4. Two or more governmental entities may procure together or with a nonprofit entity if the requirements of the public purchasing statutes are met.
IC 36-1-7-2(b) also applies to contracts under IC 36-1-7.
Other Provisions Related to Interlocal Cooperation
See IC 36-1-7 for additional interlocal cooperation provisions on firefighting personnel, highway construction, economic development, teachers in joint school programs, and property tax levies.
- Public-Private Agreements
Definitions
Board IC 5-23-2-2 BOT Agreement IC 5-23-2-3 Construction IC 5-23-2-4 Cost IC 5-23-2-5 Governmental Body IC 5-23-2-6 Operating Agreement IC 5-23-2-7 Operator IC 5-23-2-8 Original Term IC 5-23-2-9 Person IC 5-23-2-10 Public Facility IC 5-23-2-11 Public Funds IC 5-23-2-12 Public-Private Agreement IC 5-23-2-13 Public Service IC 5-23-2-14 Public Work IC 5-23-2-15 State IC 5-23-2-16 Applicability
The Public-Private Agreements Law, IC 5-23, applies to the state; a political subdivision in a county containing a consolidated city; a political subdivision in a county where the legislative body of the political subdivision or if the political subdivision does not have a legislative body, the fiscal body of the political subdivision, adopts the provisions of this law by resolution or ordinance - IC 5-23-1-1.
General Rules
A governmental body may enter into an operating agreement with an operator for the operation, maintenance, repair, management, or any combination of operation, maintenance, repair, or management of any public facility for any public service to be performed on behalf of the governmental body - IC 5-23-4-1.
Any public-private agreement under IC 5-23-5 must require the governmental body to request proposals under IC 5-23-5 before entering into the public-private agreement - IC 5-23-5-1. Proposals for public-private agreements shall be solicited through a request for proposals, which must include the factors or criteria that will be used in evaluating the proposals, a statement concerning the relative importance of price and the other evaluation factors, a statement concerning whether the proposal must be accompanied by a certified check or other evidence of financial responsibility, and a statement concerning whether discussions may be conducted with the offerors for the purpose of clarification to assure full understanding of and responsiveness to the solicitation requirements - IC 5-23-5-2. Notice of the request for proposals shall be given by publication in accordance with IC 5-3-1 - IC 5-23-5-3.
As provided in the request for proposals, discussions may be conducted with the offerors for the purpose of clarification to assure full understanding of and responsiveness to the solicitation requirements - IC 5-23-5-4. Eligible offerors must be accorded fair and equal treatment with respect to any opportunity for discussion and revisions of proposals - IC 5-23-5-5.
The governmental body may refuse to disclose the contents of proposals during discussions with eligible offerors - IC 5-23-5-6.
The governmental body shall negotiate the best and final offers of responsible offerors who submit proposals that are determined to be reasonably susceptible of being selected for a public-private agreement - IC 5-23-5-7. After the best and final offers from responsible offerors have been negotiated, the governmental body shall either make a recommendation to the board to award the public-private agreement to an offeror or offerors or shall terminate the request for proposal process - IC 5-23-5-8.
If a recommendation to award the public-private agreement is made to the board, the board shall schedule a public hearing on the recommendation and publish notice of the hearing one time in accordance with IC 5-3-1 at least 7 days before the hearing. The notice shall include the information set forth in IC 5-23-5-9 including a statement indicating that the proposals and an explanation of the basis upon which the recommendation is being made are available for public inspection and copying at the principal office of the board during regular business hours - IC 5-23-5-9.
The proposals and a written explanation of the basis upon which the recommendation is being made shall be delivered to the board and made available for inspection and copying in accordance with IC 5-14-3 at least 7 days before the hearing. At the hearing, the board shall allow the public to be heard on the recommendation - IC 5-23-5-10.
After the notice, hearing, and delivery of proposals and written explanation have been completed, the board shall make a determination as to the most appropriate response to the request for proposals and may award the public-private agreement to the successful offeror or offerors - IC 5-23-5-11.
If the request for proposal process is terminated under IC 5-23-5-8, all proposals may, at the option of the governmental body, be returned to the offerors, and the governmental body may refuse to disclose the contents of the offers - IC 5-23-5-12.
The governmental body may enter into a public-private agreement for an original term not to exceed 5 years with board approval. Any public-private agreement with an original term in excess of 5 years must be approved by the board; if the state is a party to the agreement, the governor; and if a political subdivision is a party to the agreement, by the fiscal body of the political subdivision - IC 5-23-6-1.
A public-private agreement may be terminated by the board in conformity with the terms of the public-private agreement - IC 5-23-6-2.
The public-private agreement may provide for the payment of money to either party if the public-private agreement is terminated. The payments may be used in the form of liquidated damages to compensate the operator for demonstrated unamortized costs, to retire or refinance indebtedness created to improve or construct assets owned by the governmental body, or for any other purpose mutually agreeable to the operator and the governmental body - IC 5-23-6-3.
Records of an operator that is a party to a public-private agreement are subject to inspection and copying to the same extent the records would be subject to inspection and copying if the operator were a public agency under IC 5-14-3. This inspection is limited to records directly relating to the public-private agreements - IC 5-23-7-1. Records that are provided by an operator to the governmental body that relate to compliance by the operator with the terms of a public-private agreement are subject to inspection and copying in accordance with IC 5-14-3 - IC 5-23-7-2.