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NextEra to give project update; Dinner could violate state law

A Florida energy company seeking to construct wind turbines in Fayette County will be in Connersville tonight to provide an update on and discuss obtaining zoning permits for the project.

NextEra Energy Resources, the company behind the proposed Whitewater Wind Farm project – which would see 77 wind turbines constructed across Fayette, Rush and Henry counties, with the bulk in Fayette – is hosting an invitation-only dinner this evening at 6 p.m. at the John H. Miller Community Center. The dinner is to provide an update on the project and discuss its plans, as it moves forward, for the process of obtaining zoning permits for the wind farm.

Jeremy Ferrell, NextEra Energy Resources project manager for the Whitewater Wind Farm, said the invitation-only event is simply to bring those involved in the project up to speed on its progress.

“The event is a social gathering of project landowners and a few key stake-holders,” Ferrell wrote in an email to the News-Examiner Wednesday. Among those invited to tonight’s event though, the News-Examiner has learned, include several elected county officials, including the whole body of the Fayette County Commissioners, according to Commissioner Zane Badore.

Several others, including the entirety of the Fayette County Council, were also invited, prompting one county official, Mark Pflum, to question whether the event would violate the state’s Open Door Law. Pflum told the News-Examiner Wednesday that while he is in favor of the wind farm project, he wants to avoid the appearance of impropriety or possibly violating state law by attending the dinner.

“I have a concern about the open door law policy at this dinner meeting,” Pflum stated.

According to emails between Pflum and Ferrell, provided to the News-Examiner by Pflum, Ferrell states that such an event is excluded from the state’s Open Door Law, per the advice of his attorney Mary Solada, due to it being a social gathering, along with a gathering to discuss an industrial prospect that does not include a final action.

Among the topics to be discussed at the dinner, according to Ferrell’s email to Pflum, includes thanking supporters for their actions during the recent tax abatement hearings, talking about the Whitewater Wind project as a commercial prospect within the county, discussing the process of the county’s Area Plan Commission, the attacks from opposition within the county to the project, and to drum up support for the future APC meeting – for which at date has not been set yet – where NextEra will appear concerning the zoning permits.

“I am comfortable that in no way are we attempting to or are actually violating the ‘open door’ policy provided the exceptions in the statute specifically noted above,” Ferrell wrote in the email.

One group not invited to the NextEra dinner, though, was the county’s Area Plan Commission, according to the emails, in order to avoid the appearance of the energy company lobbying the commission before it appears in front of it for the zoning permits.

Another county council member, Dale Strong, also expressed concern about how the dinner could appear to the public, though he has plans to attend.

“I am planning to attend simply to gather information about the status of the project,” Strong told the News-Examiner Wednesday. “However, I do worry a little bit about the public perception of an invitation-only gathering at this time. The opponents of the project, if not invited, would most likley view it as improper and secretive.”

Pflum’s question on whether the dinner could violate the state’s Open Door Law is a valid one, according to Steve Key, executive director and general counsel of the Hoosier State Press Association, the state’s trade association for newspapers.

“If I was the attorney for either the commissioners or county council, I would advise them to give notice of the event/meeting if a majority plan to attend and require the hosts to allow the public view the proceedings,” Key wrote in an email to the News-Examiner Tuesday. “I say this because NextEra apparently has invited two entire governing bodies, at least one that will act on the permits if the process moves forward.”

That one body Key referred to, the Fayette County Commissioners, would have the final vote on any recommendations by the county’s APC, either in favor of or against, when it comes to zoning permits for NextEra and the wind project.

Key went on to state that with the dinner to include discussion of information concerning the zoning process, it also could constitute official action on the part of both county commissioners and county council, which would then make it a public meeting per state law.

“I don’t think they can use the chance or social exception to a meeting since they’ve declared that discussion of the zoning permits is part of the planned agenda,” Key wrote. “NextEra appears above board in that it is sharing information on its request for the area plan commission, so it appears the two governing bodies will be taking official action – receiving information – about their public business.

“It appears NextEra is attempting to avoid an Open Door issue by purposely avoiding the area plan commission members in the dinner,” Key continued, “but if the process takes it before either the council or commissioners down the road for approval, they still have a problem.”

A way to avoid any issues, Key added, is if NextEra allowed any interested parties to sit in on the dinner and observe or record it, along with both commissioners and county council giving a notice of the dinner.

“Or if they only invite less than a majority of either the council or commissioners, there would be no quorum to trigger meeting definition,” Key concluded in his email. “That minority could report back to other governing body members.”

Luke Britt, Indiana Public Access Counselor, echoed Key’s assessment of the dinner and whether it would violate the state’s Open Door Law if all commissioners and county council members would attend it.

“Official action is defined so broadly in the Open Door Law, it includes simply just receiving information,” Britt told the News-Examiner Wednesday. “If even two of the three commissioners were there, it constitutes a majority and then it would trigger the Open Door Law.”

Britt went on to say that a social gathering, which Ferrell referred to the dinner as, cannot be used as a reason to circumvent the Open Door Law, either.

“Social gatherings are all well and good, but they can’t be scheduled just in order to avoid the provisions of the Open Door Law,” he said. “Say it was purely a social gathering and someone came up to (commissioners) table and started talking about some sort of project. That’s more along the lines of a chance gathering. The commissioners can’t help it if someone approaches them and starts talking to them. They should be judicious of how they conduct themselves during that conversation, but in and of itself, it doesn’t trigger (Open Door Law).

“What does trigger it,” Britt continued, “is the anticipation, the expectation, we’re going to talk about these things (zoning permits) and it’s going to be brought up. Even if it’s in the guise of a social gathering, it’s still a meeting.”

Britt added that, even if the purview of approving zoning permits were with another governmental entity instead of county commissioners, if a majority of commissioners were to attend, it would qualify as a meeting.

“The fact that the commissioners would be there, and there’s discussion of public business which could be construed to affect them somehow in their official capacities, that’s enough to trigger the (Open Door Law),” he said. “I’m concerned with that, for sure.”

Much like Key, however, Britt concluded, any violation could be avoided by each body simply sending a representative to the dinner.

“If they just sent one delegate (each) … that avoids everything. Then you don’t have a problem,” he said. “If you’re the commissioners, you just send one. That’s how all this gets avoided.”