A Citizen's Guide to Indiana

Masson's Blog

HB 1008 – Transportation Privatization

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In the comments to my previous post on the Toll Road, someone asked whether HB 1108 provided for the privatization of all of Indiana’s transportation infrastructure and not just the toll roads.

My review of the bill has been brief, but that seems to be essentially what SECTION 33 of the introduced bill provides for. It creates a new Article to the Indiana Code at IC 8-15.7 entitled “Public-Private Partnerships”. It allows for the State to enter into 99 year contracts with private entities to operate tollways, intermodal facilities, roads, airports, transit facilities, “other transportation facilities and infrastructure.” In addition, the term “project” means all or part of a bridge, tunnel, overpass, underpass, intercahange, structure, ramp, access road, service road, entrance plaza, approach, tollhouse, utility corridor, toll gantry, rest stop, service area, or administration, storage or other building or facility related to the transportation facilities and infrastructure.

The process appars to be something like this: The Indiana Finance Authority makes a request for proposals. (The authority is made up of the following members: the budget director who is appointed by the Governor, the State Treasurer, and 3 members appointed by the Governor, 1 of whom must be from a different political party.)  If it likes one of the proposals it recommends the proposal to the governor and the budget committee. (The Budget Committee consists of two Republicans and two Democrats appointed by the party leaders of each chamber of each house. It also consists of the Budget Director appointed by the Governor.) Apparently the budget committee is responsible for reviewing the Finance Authority’s recommendation but has no power to accept or reject. Instead, accepting or rejecting the recommendation appears to be entirely in the Governor’s discretion.

So, the Finance Authority — a majority of whom can be from the same political party as the Governor and appointed by the Governor — makes recommendations to the Governor and the Budget Committee about projects that can privatize essentially any state owned transportation infrastructure for up to 99 years at a time. The budget committee can give its 2 cents but can’t do anything to affect the process. The Governor can then accept or reject the project.

Wow. That’s pretty breathtaking in its scope. Thanks to those who got on me to sift through this legislation. A determined Governor with loyal appointees could mortgage almost all of the state’s transportation infrastructure for generations to come in a very short time, and the legislature couldn’t do a thing about it.

Bills that have passed the House

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The following is a list of bills that have already passed the House and have moved on to the Senate:

HB 1013 In God We Trust License Plate.

HB 1021 Hay baling on Interstate rights of way. Requires the department of transportation to develop a pilot program to contract with bidders to harvest forage along the rights-of-way of interstate and state highways.

HB 1023 Allows a methadone clinic to be opened in a county contiguous with a county that already contains a methadone clinic if the new county has a population of at least 40,000.

HB 1040 Technical corrections bill.

HB 1103 Defines a dealer of trailers for transportation of watercraft as a watercraft dealer. Also gives drivers an extra day if their license expires on a day when the license branch is closed.

HB 1106 Automatic external defibrillators. Removes the requirements that a person or entity that acquires a defibrillator ensure that the users have completed certain courses and have enlisted a physician for medical direction.

HB 1111 Life insurance and Medicaid — allows the state to use Medicaid funds to pick up the premium on a Medicaid recipients life insurance policy if the recipient assigns the rights to the State. Such a life insurance policy would no longer be counted as the recipient’s asset for purposes of qualifying for Medicaid.

HB 1114 Among other things waters down of the privacy burdens imposed on a County Recorder with respect to recording documents containing social security numbers. It also eliminated the fee and associated fund designed to compensate the recorders for that burden.

HB 1134 Recodification of Title 21. Along with the technical corrections bills, the recodifications are an important part of making Indiana’s Code among the nation’s best. The goal of the recodifications is to provide better organization of a particular Title of the Indiana Code and simplify the language to the extent possible without making substantive changes to the law. Title 21 is the K-12 education finance law.

HB 1150 Antique license plates – allows for the use of antique license plates or replicas thereof on antique motor vehicles.

Toll Road

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The Governor has announced his intention to sell Indiana’s Toll Road to a foreign company for the next 75 years in exchange for $3.85 billion. Apparently this will pay for transportation construction for the next 10 years. What we do for the 65 years after that, I don’t know. Just poking around at the INDOT site, a trip along the length of the Indiana Toll Road costs a normal passenger vehicle $4.15. Under the proposed deal with the Spanish/Australian consortium, that toll will be raised to $8 through 2010. In 2010, the toll can be raised at least 8% and at least 2% per year after that. That means a toll of at least $35.25 by the time the lease expires.

I’m against selling off Indiana’s infrastructure. It’s just not a good idea to eat your seed corn. Mitch Daniels reminds me of one of those kids who gets set up with an annuity through a lawsuit from when they were a minor. They see an ad on daytime television from a company that will pay a lump sum purchase on the annuity. The kid is being ripped off, the company’s only paying 50% of what the annuity is worth, but he doesn’t care, he just wants a pocket full of money right now so he can buy that bitchin’ Camaro he’s had his eye on.

Another way to look at it, I suppose, is as an admission of failure by the Governor. He is telling us that this foreign consortium can achieve billions of dollars in efficiencies that his administration cannot manage. I figure there are three ways for this consortium to make money off of this: raise tolls, decrease maintenance, and increase efficiency. I haven’t heard the Governor talking about increased tolls or decreased maintenance, so he must think they can recoup their billions through efficiencies that he can’t.

(Of course, I think this is hogwash — I think the consortium will raise tolls beyond that which the State has the nerve to do directly and will skimp on maintenance. But the logical implication of what the Governor has said and what he hasn’t said leads to the conclusion that his administration does not have the competence to realize these billions without selling off our roads to foreigners.)

Update: Niki Kelly writing for the Fort Wayne Journal Gazette has a good article entitled “Toll Road bid $8.5 billion: Daniels pushes for quick action; others urge study”.

Critics point out that Daniels has had quite some time to craft his message on this; meanwhile, legislators are expected to digest not only the enacting legislation but also the 200+ pages of the contract and its associated schedules. They’re expected to do this quickly and to make a decision on whether to mortgage the Toll Road for the next 75 years as well as to whether to approve a bill that appears to have the effect of giving the Governor authority to mortgage much of the rest of Indiana’s transportation infrastructure.

Another item I noticed is that the foreign consortium who will be buying the Toll Road has relatively short concessions in the rest of the United States — 8 miles in Chicago, 4 miles in Detroit, 13.6 miles in Washington, D.C. The Toll Road runs the length of the state making it in excess, I believe of 150 miles.

I think an interesting figure to have would be to compare the dollars paid per mile per year. Assuming a 140 mile toll road at 75 years, the amount to be paid is about $362,000 per mile per year. By contrast, the 8 mile Chicago stretch was a $1.83 billion lease for 99 years which translates to $2.3 million per mile per year.

I couldn’t find information on the other holdings, but found this admittedly biased news release from a labor newspaper discussing labor issues involving the foreign consortium at the Detroit-Windsor tunnel.

On April 24, 29 Detroit-Windsor Tunnel workers were locked out of their jobs after refusing to accept a 3.5 percent wage reduction, a two-tier wage plan to drive wages down further and a $40 co-payment on prescriptions.

. . .

Macquarie Global Infrastructure Trust, an Australian financial institution, manages the tunnel for a huge profit. Their website boasts that operating costs (less than 15 percent) make up only a “small portion” of the overall costs that are offset by toll income that is expected to be increased. The trust fund suggests that the way they will make more profits is by stripping the tunnel of its financial assets and then selling it.

ARG: Bush approval at 36%

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It probably doesn’t matter to Mr. Bush, since he’s not running for anything in the future, but according to the most recent ARG poll, his approval rating has returned to a low of 36% compared to a disapproval of 58%. His approval rating probably has more to do with the 2006 and 2008 elections where, if his numbers are bad enough, he’ll be actively bad for Republicans seeking office instead of being merely a non-factor for them.

Democrats and Republicans are fairly predictable in their responses, the more significant group are the Independents, figured as 30% of the responders. 71% of them disapprove compared to 24% approval.

Pulaski County may want out of Central

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First, my apologies for the lack of blog activity. My home internet service went out on Friday night and was down all weekend.

At the time the USDOT’s time zone decision came out, I noted that the Pulaski County decision surprised me a bit. They had been preliminarily denied and hadn’t made much effort to supplement their petition to get USDOT to reconsider. Nevertheless, they were included in Central while St. Joseph, which had been preliminarily approved, was ultimately denied. Apparently this also came as a surprise to Pulaski County. Now the officials are attempting to reconsider whether they want to be on Central Time.

The county commissioners and County Council plan a special joint
meeting on Monday to hear public comments on whether to appeal the U.S.
Department of Transportation’s ruling to shift Pulaski County from
Eastern time beginning April 2, when daylight-saving time begins.

A statement released by County Council President Sam Frain called
the federal decision released Wednesday a “sudden change” from the
agency’s October recommendation that the county remain in the Eastern
zone. The statement said county officials had received numerous
complaints about the decision.

Meanwhile, we have a chorus of “we got what we wanted, so shut up now” from the eastern parts of the state. One of the voices is an editorial from the Fort Wayne Journal Gazette. But, not surprisingly, the most disingenuous voice seems to be the editorial from the Marion Chronicle Tribune.  Their headline gives away the problem with their reasoning, “After decades of arguing, it’s time to move on.” Why wasn’t it time to move on last year or the year before or the year before that? Because the folks at the Marion Chronicle editorial board hadn’t gotten what they wanted: Eastern Daylight Time. Why is it time to move on now? Because they got what they wanted. So could the rest of us please shut up now? (My comments in italics)

Already, some Hoosier legislators want a statewide referendum on the time zone issue.

“The people ought to be given a voice,” House Minority Leader Pat Bauer whined. Somehow it wasn’t whining when people complained that the system that worked well enough for 30 years ought to be changed.

They’ve had a voice, for crying out loud. They had it when they elected Mitch Daniels, who campaigned on making the change. Folks, you really, really, don’t want to hang your hat on what Mitch Daniels campaigned on. He campaigned on state-wide Central Daylight Time. That is not at all what we have now.

They had it when the General Assembly debated the issue and when the feds conducted hearings and took comments around the state. Nor do you want to hang your hat on the action by the General Assembly. The Daylight Saving Time died twice. First when the original bill didn’t make it out of the House. Second when the bill that ultimately passed was defeated 50 against to 49 in favor only to be resurrected for passage when Troy Woodruff went back on his word to his constituents that he would “never” vote for Daylight Saving Time. And the federal process was stacked against consideration of Central Time. An overwhelming default preference was given to Eastern Time with those preferring Central having to overcome a heavy burden to obtain a shift. Furthermore only changes affecting petitioning counties would be considered — meaning that, even if the State and the interests of commerce would be best served by shifting a non-petitioning county (say, Elkhart County for example), the time shift simply would not be considered under any circumstances.

They’ll have yet another voice when 100 Indiana House seats and 25 Senate seats come up for election this year. You got that right.

But the state does not need a referendum about this. Why? Because the people of Indiana might disagree with the wisdom handed down by the Marion Chronicle Tribune?

It seems to me that the only way out of the time mess is to fill the General Assembly with legislators who are comitted to planning and requesting from the USDOT a statewide time solution or, in the alternative, returning Indiana to the status quo which worked well enough for 30 years, despite the whining from the likes of the Marion Chronicle Tribune.

Another Epic from Hunter

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Hunter over at Daily Kos offers up another epic installment. This time, he takes aim at John Gibson and the nimrods at Faux News and their credulous reaction to bin Laden’s latest.

My favorite passage:

And so Gibson shows the last refuge of an armchair patriot, a man whose love for his actual country extends no further than his own arms, his own pockets, his lapel pin, and the sound of his own voice. I hardly need such urgent, bulbous threats as Gibson’s to see where the terrorists can gain their moment of advantage; I can merely turn on cable television, and see the pronouncements of the Fox News foppery, humping the so-called War on Terror with the jiggling gracelessness of a dog wooing a well-worn couch, and know that the ultraconservatives of all involved countries are the ones who have spent the most spittle on these fights, to the least service.

Tracy Warner on free speech & funerals

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I think Tracy Warner has it right in his post on free speech and funerals in response to Sen. Steele’s bill to criminalize disruptive speech near funerals.

The best way to deal with these funeral protesters is to ignore them. With the Indiana Senate voting to prohibit such demonstrations and the House poised to do the same, the legislature could well invite a protracted legal battle that will raise the profile of the protesters, give them just the forum they are looking for and — ultimately — strike down the law.

Don’t get me wrong. I agree with the bill’s sponsor: These protests at funeral are “unconscionable.”

. . .

The protesters don’t deserve the heightened profile this bill and subsequent legal battle will give them.

Courier Journal on Certificate of Need programs

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The Louisville Courier Journal has a story on the Certificate of Need ordinances in Floyd and Clark Counties recently struck down by Judge Barker in the Southern District of Indiana. The ordinances are designed to protect county hospitals from competition and prohibit construction of new medical facilities without the county’s permission. Back in November, Judge Hamilton struck down a similar ordinance in Morgan County. In previous posts (here and here ), I discussed Perry County’s bewildering decision to adopt a similar ordinance even though they were aware that Judge Hamilton had ruled that they were beyond a county’s authority and illegal.

According to the Courier Journal article, Clark County has paid legal expenses of $70,000 to the law firm of Barnes and Thornburg in Indiana and an unspecified amount to their own county attorney. In making the determination of whether to appeal the decision, Dr. Gordon Gutmann, physician and president of the board of directors at the Clark County hospital makes a great deal of sense:

Gordon Gutmann, a physician and president of the board of directors at Clark Memorial, said it is his position that Clark County should not appeal the judge’s ruling to the 7th U.S. Circuit Court of Appeals in Chicago. It would cost more money and time, Gutmann said, and court opinions so far have shown that the regulation of local health care is up to the Indiana State Department of Health and not county government.

“If that’s what the law is it’s what the law is,” Gutmann said. “We have to suck it up and abide by it.”

Meanwhile, Floyd County’s attorney said there was a more than 50/50 chance Floyd County would appeal the decision. He said that he believes Floyd County has legal grounds to pass some type of ordinance regulating hospitals in addition to the regulatory authority assigned to the State Department of Health. The article did not specify what that additional authority might be.

I’m all for county authority to act. I think county government tends to be more responsive to the citizenry than state or federal government. But I just don’t see that the counties have a leg to stand on with respect to this issue. Under Indiana’s Home Rule structure, once authority over an issue has been assigned to a state agency, local governments do not have authority over the issue unless specifically granted such authority by statute. Two judges reviewing three different ordinances have failed to find such a specific grant of authority.

So, the $70,000+ question for the Perry County Commissioners is whether they think they can succeed where three others have failed or do they want to repeal their ill-considered decision to adopt a Certificate of Need ordinance?

More from Lawgeekgurl on DST

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Another truly inspired post from Lawgeekgurl as she explains “what the big deal is” to non-Hoosiers.

An excerpt:

I could attempt to explain it in a dry, rational fashion by saying it is a topic that is crosses political boundaries, geographic boundaries, and socioeconomic and ethnographic boundaries. It is grounded in a kind of crisis of self-identity for the state. In forcing the issue of statewide observance of DST, the state’s citizens have been forced to examine their own ideas about where Hoosiers fit in the spectrum of Americans. Is Indiana the kind of place that’s more like Chicago, it’s brash, big-shouldered neighbor who understands farming and the hard physical labor of manufacturing – the one who may be a wee bit more liberal, but who still speaks Midwestern – or is it the kind of place that’s more like New York with its sophisitication and Woody Allen movies and fast-past living and high-tech businesses? Is the state really all that torn between the Modern Age or its Rural Past? And if it is, the state asks itself, wasn’t the DST compromise that we had a good solution?

I also particularly liked:

I have said it before, and I’ll say it again. To Hooisers, daylight savings time is one of those things like class basketball, where the name “Hoosier” really originated, and whether or not Bobby Knight deserved to be fired. No matter how long ago they occurred, mention them to a Hoosier and you’ll get an earful. If there are several Hoosiers in the room, you may see a fight.

Inspired. Go check out the whole thing.

Two more county hospital Certificate of Need ordinances struck down

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In a previous post I discussed Perry County’s recent adoption of a “Certificate of Need” ordinance which prohibited construction of new medical facilities unless the builder obtained a “certificate of need” from the County.

Back in November, Judge Hamilton struck down a similar ordinance adopted by Morgan County. According to a story in the Perry County News, the Perry County commissioners were aware of the Morgan County case and proceeded to adopt the ordinance anyway, claiming that they had drafted the language of the ordinance more narrowly. As I explained in that previous post, there is no way the ordinance can be read as being permissible in light of Judge Hamilton’s ruling.

Yesterday, Judge Barker issued her opinion striking down similar ordinances in Clark and Floyd Counties. The reasoning of both Judges Hamilton and Barker is the same. Under Indiana’s Home Rule Act (IC 36-3-1), counties simply do not have this authority.

The Home Rule basically starts with the presumption that a local unit of government has the authority to do something. However, it states that “Counties may not exercise powers that are expressly denied by a state statute or that are expressly granted to another entity.” It goes on to specifically withhold from counties the power to “regulate any conduct that is regulated by a state agency, except that which is expressly granted by statute.”

The Indiana State Department of Health is granted the right to license and regulate hospitals and is directed to enhance competition. There is no support for an inference that the General Assembly had given a county the power to hinder a county hospital’s competition. Judge Hamilton went on to say:

Morgan County’s Ordinance in this case does not meet the standards of these Indiana decisions. The Ordinance serves a purpose of restricting competition, a purpose that is not merely different from the state regulations and policy, but is flatly contrary to the express state policy of promoting competition.

It remains incomprehensible to me how or why the Perry County Commissioners would adopt their ordinance. If they had simply been ignorant of the prior Morgan County decision, the ordinance would have mad a bit of sense. But, according to the Perry County News, they knew about it and adopted the ordinance anyway. With the latest decision striking down the Floyd and Clark County ordinances, they probably ought to save themselves some legal fees and repeal their ordinance as soon as they can.