County officials clash over BOT agreement & highway garage
- Nathaniel Smith | Editor-in-Chief
- 13 hours ago
- 19 min read
On Tuesday, February 3, the Washington County Board of Commissioners gathered for their regularly scheduled meeting following the joint special meeting with the County Council the day prior. A variety of topics were covered in this meeting, most notably was the continuation of the Build-Operate-Transfer (BOT) agreement discussion from the previous day’s meeting.
However, the meeting began with a statement read by Max Greene regarding board appointments and replacements. Greene read a prepared statement for the commissioners and discussed information he handed out to them in a packet. Greene’s statement and packet can be found below. If you are on desktop, click each image for a larger view:
“I just want to make a comment,” began Commissioner Todd Ewen. “Max, you're spot on. I appreciate you printing this out. Lisa Fleming, our attorney, began making a file to try to get all this sorted out 8 or 9 months ago. And I will be the first to admit, this has been very chaotic, because when you have board members – just an example, Mark Hartman and Ervin Day passed away. You get 1 or 2 board members who agreed to serve, and for one reason or another, they decide they don't want to serve anymore. They may serve six months, eight months, nine months, ten months or a year and a half, and it has been very difficult to get this sorted out. If you would do us all a great favor, since you have researched this, if you would get with Lisa Fleming and get this information to her. I'll give her a copy, too. But it does need to be cleaned up and sorted out. I don't know why the state does this, I suppose there are reasons. I know the main reason is that we have staggered board members, but I don't have to tell you. It's very difficult to get people to serve on boards in this day and age. A lot more so than it used to be. You can talk to any person who is a member of any service club, Rotary Club or whatever, and they will tell you that their membership is way, way down. It's just the nature of the beast. People just don't want to serve anymore. And it's been a struggle. And I thank you for what you've done.”
“While we're on that, David [Lyles] expressed to me that he wanted to stay on. So what are we going to do there?” asked Commissioner Tony Cardwell.
“I had a personal phone call with him and told him that we had a board member who was willing to serve,” replied Ewen. “We have had a lot of trouble in the past by having too many republicans on the board. We have to have a balance. That's state statute. And his exact words when I told him that we were not going to reappoint him were, ‘that's alright.’”
“He expressed to me otherwise,” said Cardwell.
Rhonda Greene then interjected from the gallery and said, “Maybe you should replace the illegal member, Lori Gilstrap.”
“Here we go… there are no illegal members,” said Ewen.
A brief argument then ensued between Commissioner Ewen and Rhonda Greene regarding Lori Gilstrap’s party affiliation. Greene claims Gilstrap is a Republican, while Ewen guarantees she is a Democrat. Gilstrap’s voting record, which was referenced in the argument, can be found on one of the pages of Max Greene’s packet included above.
The commissioners then invited Lucy Brenton forward to utilize her speaking time. Brenton expanded on a handout that she provided at the meeting the day before the February 3 commissioners meeting. This packet can be found below. If you are on desktop, click each image for a larger view:
The following are comments from both the special county council meeting on February 2 and the following commissioners meeting on February 3 regarding the BOT agreement and the Highway Garage Project, beginning with Lucy Brenton’s remarks on February 2.
February 2 Special County Council Meeting
“For those who don't know me, my name is Lucy Brenton,” she said. “I was appointed to the Washington County Plan Commission in August. That's the part of our county that handles the zoning. So normally I would talk about solar and alternative housing. That's what I came to talk about this morning. I'll reserve those comments for February 10 at 6:30 pm in this room, if you'd like to come and talk about that. However, when I saw this package here this morning, it actually caused great alarm in my mind because I recognized that what is contained in this document is a tale of how taxpayers have been shorted. Blank checks have been written on the backs of taxpayers, all of us. And the bill for developer overages is being handed to us as taxpayers. So, one of the questions I'm going to ask you here today on the council is, knowing that a loan was probably taken out in order to do this BOT building, I'm wondering if that loan is going to exist and still be in effect on the backs of my grandchildren as taxpayers. My understanding of a BOT agreement is that it has to be built to specifications, that it must come in on the budget promised by the developer, and then we make the decision at the end to pay for the whole thing.
“So, I may be wrong on that. I'm a little bit in mystery,” continued Brenton. “But what I do know is that the budget agreement that was signed on August 1st of 2023 by Mr. Marshall, to my left, was signed only by him -- which maybe that makes sense. He was the president of the commissioners at the time. The other two commissioners in August of 2023 were Todd Ewen and Rick Roberts. Rick Roberts is no longer on the commission because Tony Cardwell came in as commissioner of District 3, my district. What concerns me is that at the time of the signing, and this is why I use the term blank check, at the time of the signing of the BOT agreement exhibits A, C, D, and F – this is all in the first page for you – and the GMP Report were not provided. So, Phil Marshall actually signed what I'm going to call a blank check. He signed an agreement without the exhibits that would support the responsibilities of the developer. Now, this was brought up many times. I've been to the commissioner meetings. And if you guys aren't watching these on YouTube, they're now live streamed at Washington County, Indiana YouTube channel. So you don't even have to be here to hear the live stream. And from what I recall, multiple times during those commissioner meetings, I think it was Tony Cardwell that continually brought it up, ‘hey, we're missing some documents.’”
Brenton then read the following email exchange which is included as page two of the handout:
Brenton continued to go through the various information included in the attached packet before she was stopped by County Council President Brad Gilbert stating that she had reached her time limit.
“My conclusion is that the commissioners approve the payments,” concluded Brenton. “I want to know who writes the checks. I want to know who is responsible for making sure that every step along the way, things were completed. Because in the last commissioners meeting on January 20th, you can all go look it up and listen to it, Marshall and Ewen voted to give 19.5 acres of county property. Now, Ewen, you said that it was a great deal for us because there was over $400,000 in overages on this contract, and the developer was going to be so nice as to let us swap 19.5 acres of what he referred to as a property that eats hay, that it's sitting there and not giving us any revenue. Now, when we asked Mr. Ewen what that property was going to be used for, he declined to answer. But he claimed that there was going to be $10,000 worth of property tax revenue. So, if he says there is $10,000 of property tax revenue, then he has an idea, even though he said he didn't know, he has an idea of what's going to be built there, or he wouldn't have made the claim that there was $10,000 in property tax revenue we could expect to receive after this developer takes 19.5 acres of our children and grandchildren's assets and property.”
Nearly one hour later, after Brad Gilbert once again opened the meeting up to public comments, Brenton came back to the front to speak again.
“I was really concerned about a contract being signed and obligating the county, which is the county taxpayers, for which I am one,” said Brenton. “This was signed in August of 2023 and in June of 2025, attorney April was finally able to get some of those. And yet, two years later, Exhibit A was blank. So my first question is, if the site plan called for an eight and a half acre site, and now the agreement on record says seven and a half, can you tell me where that acre went?”
She was then informed by the council that her time is intended for general comments, and that it is not for “question and answer.”
“Okay. So you don't have to answer my questions,” she said. “I'm going to go ahead and read those questions into the record. Prices are not supposed to go up. That's the whole reason you have an RFP. A request for proposal. That's why people give you bids so that you can make an educated decision upon the budget. Even the Bible says that a foolish man starts a project without knowing that they can finish it. I'm paraphrasing, obviously. That's not exactly what was said. So, on the last page, after the site plan, we see that number four is supposed to be $24,935 to install county supplied stone for the scope, but now it's $45,000, so there's another $20,000 increase on the backs of taxpayers. That is a very real cost that you have to assess against taxpayers and our properties, and our property taxes are already ridiculous. Number ten, there are no security light poles and foundations. Number 11, the erosion control for the project site was priced out at $18,279, but now it's a total of $45,000. So, that's a $27,000 increase. Now, I don't know about you, but I work for a living, and I can't come along to my boss two years later and say, ‘you know what? That work that I was going to do for you and I promised to do two years ago, by the way, I need another $50,000.’ That just doesn't happen.”
“It also really concerns me that there is a lack of professionalism,” she said. “I'm going to say it's amateur hour. Whoever the developer is. Whoever it is has undercut the scope of the work. For example, under aggregate bins building number six, you can see that number four says ‘upright concrete walls exposed are 12in wide and 8.15ft tall’. They're supposed to be ten feet tall. This is almost a two foot difference in height. We're supposed to have six AG bins and there are only five installed. Why are we being shorted on that? I don't know if I marked it, but I remember that we had a stem wall that's supposed to be three feet tall, and it's only one foot tall. So that means 30% of the concrete that was scoped out was actually used. Now, I don't know how much concrete is in a building like this, but I do know that if the developer is putting in 30% instead of 100% of the scope, that's a big savings to the developer. The taxpayers are taking a haircut. But probably one of the biggest things that I got in here is the truck lean-to and sign shed building number three. We now have 24 bays total, and that is six bays short. So it's 285ft and should be 360ft. Now, I don't know about you, but if you're shorting a building by 75ft and now you're coming back and asking for overages, and in addition to asking for overages, you're telling the county, ‘hey, I know I went over on this and I know I went over on this, but I'll tell you what, it's worth $400,000. And I see this 19.5 acres over by the airport. I'd be happy to take that property off of your hands.’”
“How much in millions of dollars is that developer likely to make?” she asked. “So, one last thing here, on number three truck lean-to and signed shed, it says the building was specified to be built 16in on center with two by sixes. Well, that would be a stick built wall. But instead the developer changed it to two by eights at four feet and on center for eave walls and eight feet on center at the end wall. So basically, they swapped out a very expensive lumber package at 16in on center for a big cost saving. So, we're getting cheated as the taxpayer. Instead of getting that stick built building, we're getting a pole barn framing. Now, that is another huge haircut. So, I'm really curious how the taxpayer's taking so many haircuts. We're taking a 70% haircut on some of the concrete. We're taking a 75 foot long haircut. Bays are not being built. Scoping is supposed to be ten feet tall for these bins. I imagine that makes a big difference when you're using an excavator or a skid steer. Having that extra foot or so. The concrete pad outside of the building on building number four was supposed to be 100ft by 80ft, which is what, 80,000ft²? And it was built 126 by 60. So, that looks like 7,560. That's a few hundred square feet short of concrete, multiplied by however thick that foundation is supposed to be.”
Brad Gilbert then asked Brenton to email all of her questions to the commissioners and the attorney. However, the end of the meeting saw the return of this topic. This time, the conversation was started by Councilman Preston Shell and Councilwoman Karen Wischmeier.
“I'm kind of sad on this,” said Shell. “The highway department down here. We started out at $4.8 million, and now I don't know what it's up to. Probably $6.4 million with all these insufficiencies or inefficiencies. I don't know how we're going to correct them, but we're going to have to correct them – or the commissioners are. For the county taxpayers.”
“I've browsed through that and I don't even have words because I'm so angry and disgruntled by it,” said Wischmeier. “And to me, it's a complete and total waste of taxpayer dollars, and nothing about the process was followed to begin with. We should have never paid one single dime. And then to have all of these issues on top of it, what are we going to do, hire somebody else now to come back out there and fix everything that's screwed up? And how much is that going to cost us? And the fact that we, as a council, were promised boots on the ground so that these kind of things wouldn't happen is completely and totally unacceptable. And we were promised that in a public meeting. I still voted no for the project, but everyone else voted yes and they deserve correct answers. And I'm honestly appalled at the issues. This is way more than I ever thought it would be. The fact that this has gone by, and the commissioners just let it go by, and they signed off on these checks, and they filled out these checks to pay this, is, to me, a gross incompetence as your job as taking that oath of office, and if that's the best you can do, you probably need to resign. Sorry.”
“You have no idea what you're talking about,” said Commissioner Ewen. “This is not over budget. It's totally ridiculous. You guys are fabricating things.”
Wischmeier shot back, “An engineer looked at it, Todd!”
“About a year and a half ago when we were presented with some documentation, you said it was disgraceful,” said Ewen. “Where's the person's name? Where's the engineer's name? Where's it at? Where's it at? There are some change orders. We are within budget. So for you to sit there, Preston, and say $6.4 million–”
“The idea behind the BOT is to not have change orders,” interrupted Wischmeier.
“Read the contract!” exclaimed Ewen. “Did you not read the BOT contract? There are provisions for change orders.”
The argument then became more heated, eventually becoming a shouting match between Ewen and Wischmeier. At that point, Brad Gilbert began to try to regain control of the meeting.
“Guys, guys, please just remember this is a professional public meeting. We can talk one at a time and not scream at each other. We are elected officials,” said Gilbert.
“When has anyone in this room ever done any kind of a building project – I don't care if it's a deck on your back porch of your house – that there were not some changes?” said Ewen. “Our change orders amount to 1.33% of the total budget. Now, I think that's pretty darn good. We are within budget. As things progressed, we decided to change some things and tweak some things with some advice from our highway superintendent–”
“Bulls—t!” interjected Highway Superintendent Rick Voyles from the gallery. “No, don't you throw my name in it. There’s a whole lot about it that I’m not happy with.”
“There are lots of things that everybody's not happy about, but this is what we've got,” Ewen said. “We're trying to stay under budget, and that's what we're trying to do now. Your numbers are wrong.”
“No, they’re not,” said Wischmeier, “They're the same numbers that were presented in the commissioner meeting. It doesn't take Dick Tracy to add two and two to get four.”
“I just got through telling you there were some change orders,” Ewen replied.
“And I'm telling you that when Mr. Isaacs was here, he told us that on a BOT, you cannot make changes, and any changes are at the cost of the developer,” Wischmeier said.
“Read the contract,” Ewen said. “There are opportunities for change orders.”
“This has squandered the county taxpayer's money. That's plain and simple,” said Wischmeier.
The meeting then moved on to other topics.
February 3 Commissioners Meeting
The next morning, Lucy Brenton came forward for public comment at the commissioners meeting.
“So, the first thing that we have is in July 2023, the BOT agreement was signed by Phil Marshall, and that was August 2023. It was signed with blank and missing exhibits. Phil, do you have a copy of the August 2023 agreement, complete with all of the exhibits to which you signed?” asked Lucy Brenton.
“I think I do,” replied Commissioner Phillip Marshall.
“That should be available for public inspection,” said Brenton. “As a member of the public, any taxpayer in Washington County, I hereby demand that I and other members of the public have immediate access to all documents related to this project because it is supposed to be available for public inspection. So, I want to know where the blank and missing exhibits are? The one that really gets to me is the site plan that was blank, because the site plan says it's supposed to be 8.5 acres, but yet it went down to seven and a half acres in subsequent documents. Now, there's one acre on the north side, and I drove by it this morning and slowed down so I could kind of see it, where it's clear that another project, if there was an acre, could be built. And we might remember that in the Plan Commission, there is a one acre exception. Now, whether this will apply or not, I don't know. This might be a Salem ordinance or a plan ordinance, but it just seems suspicious to me that we really pushed hard for a one acre lot to be the minimum instead of two in the subdivision laws. That would then open that up, possibly for that acre to be used by a developer for profit. So, the taxpayers have been shorted on the size of the buildings and the amount of materials. But the builder's still charging full price even though he's shorted the taxpayer. I see Todd and Phil doing a song and dance at previous commissioner meetings about a $400,000 in overages, which should not exist, because not only are we getting a haircut, we're not getting the full value of what we're supposed to be paying for. But in addition to that, there are overages on top of it. The builder's still charging us full price.
“The developer said that they'd be so gracious as to take 19.5 acres off of our hand, which Todd characterized as, ‘eating hay,’” she continued. “By the way, I just want to put the disclaimer out there. This is my own personal research, my own personal opinions. Until I come with documents, I cannot present this as a fact. So, those of you who are following along at home, you're going to want to look to the Indiana Code for some things here. The developer is taking 19.5 acres off of county hands that Todd said is eating hay and not giving us any money. It's right next to the airport. Those of you who've been paying attention since Covid would know that. READI Grants were started by [Former Governor] Holcomb, one of which is for the expansion of airports. So, if we give 19.5 acres to a developer, and then there's a READI Grant for that 19.5 acres, are we going to have that developer developing something there and then selling us our own property back at a premium? Are we giving land away so that a developer can develop and then sell it back to us? Because that's what I suspect is going on here.
“So, Todd, where are all the documents? Phil, where are all the documents? I demand to see them. I've been reading Indiana Code this morning about performance bonds. This is Indiana Code 4-13-6-7-7, where it talks about performance bonds. Todd, as I was driving on, I think it's Jackson Street, I saw a sign that said Ewen Insurance. Is your family in any way providing performance bonds or insurance for these projects? Is there money going into your family's pocket?”
“No,” said Commissioner Phillip Marshall. “You did your research, you know where bonds come from. It’s public knowledge.”
“IC 4-13-6-7-7 (b)2 says 'no change, modification, omission, or addition in or to the terms or conditions of the contract, plans, specifications, drawings, or profile or any irregularity or defect in the contract or in the procedures preliminary to the letting and awarding of the contract shall affect or operate to release or discharge the surety in any way',” said Brenton. “In other words, I believe that this says that all of those changes you were talking about – the change orders – and you were saying that they were perfectly fine, I believe that this Indiana statute reflects that. The bond says that those changes cannot be made. So, maybe I'm wrong. I didn't go to law school, but those following along at home can look at that.”
“And then there's the payment of the contractors for those who want to know where that goes, IC 4-13-6-7-2 and IC 36-1-12-4 (b)2 says that it needs to be posted for public inspection. So do you have any questions for me? Because the question that I have for you is where are the contracts?”
“I can speak to that,” said Attorney April Geltmaker. “We've received public records requests for those from various people for the last year. We provided those. So if you would like, or if anybody would like a copy, those have been provided.”
“Another question I have about how stuff works,” said Brenton. “Kyra, as the auditor. Are you the person that writes the checks for all of this? Does somebody come to you and say, ‘hey, we're $200,000 over?’ So, does Kyra write the checks? That's just a question of how the government functions. If Kyra writes the checks because she's the auditor–”
“You know the answer to that,” said Commissioner Todd Ewen. “Of course she does.”
“So, who comes to Kyra and says, ‘we need to give this developer $1.4 million over, and we need checks for that.’?” asked Brenton.
“If you're so smart, you should know these answers,” said Auditor Kyra Stephenson.
“I never ask a question before I know the answer,” Brenton replied. “But these people don't know, and it's the taxpayers that you're defrauding. It's the taxpayers who are getting the short end of the stick on a $4.8 million project that's now up to an estimated almost $6 million, and we're giving away 19.5 acres of county property. I added up all that stuff that we talked about yesterday, where we're supposed to have six bays and we got five, we're supposed to have 360ft of aggregate bins, and we got 285ft.”
“Your time is up,” said Commissioner Marshall.
“It is indeed, and soon yours will be too,” concluded Brenton.
“False information,” said Commissioner Ewen.
The next agenda item was the approval of minutes from the January 20 commissioners meeting.
"I cannot approve them as they stand," said Commissioner Tony Cardwell. "Kyra wrote in there that April read the agreement that was voted on... it never got read off."
"What agreement was that?" Commissioner Ewen asked.
"The one you and Phil passed. There wasn't one to read off. I questioned that after the fact, too," said Cardwell.
"Which agreement, I'm sorry?" asked Attorney April Geltmaker.
“The agreement over the 19.5 acres,” said Cardwell “You never read an agreement. You just described what was happening.”
"I read from the addendum," Geltmaker replied.
"Where's the proposal? Where's it at? I done asked that," said Cardwell.
"Mr. Cardwell, I read verbatim from the addendum," Geltmaker replied.
"From the – I've been asking for the addendum. I was told there was not one yet," said Cardwell.
"But I did read it in this board meeting," Geltmaker said. "Okay?"
"I'm sure it's recorded," said Cardwell.
Commissioner Marshall made a motion to approve the minutes. Commissioner Ewen seconded. The motion passed, with Commissioner Cardwell voting opposed.
Other items discussed in the meeting included Andrew Bush's planning of a veteran's memorial project for America's 250th celebration in July, as well as a unanimous vote between the commissioners to forego terrorism insurance in the interest of saving $9,839 annually.
Near the end of the meeting, Attorney April Geltmaker spoke again on the BOT agreement.
“As I said earlier, the BOT and all its exhibits have been available for quite some time, and we've recieved public records requests and they've been fulfilled timely,” said Geltmaker. “I do need the Board to correct the date on the first page of the BOT agreement – it currently reads 'August 1, 2023' – I think that may have been written in by someone when it was first being developed, but the Board approved it at a public board meeting on June 4, 2024. So we will make that correction... the completion date will be updated to reflect the delays to April 15, 2026. And just so we are clear, the exhibits as I said, and the signature page from all parties are attached to the BOT agreement and those have been provided to the public as requested. So the Board needs to approve that as a formal document, now that we have all the exhibits attached to that document.”
"When did the exhibits get attached to that document?" asked Commissioner Cardwell.
"I'll have to go back through the public records requests and see when they started coming in," replied Geltmaker. "I know they existed when we fulfilled those public records requests. It's going to take me some time to go through all those."
"I know as of April of last year they did not exist in it, so I'm just asking," said Cardwell. "And I'm told we can do change orders on the BOT project, correct?"
"That's correct, if – I believe it's section eleven..." Geltmaker replied, "I sent out an email to the commissioners providing a copy of the BOT agreement with the exhibits so that you could see that section eleven that specifically includes the process for change orders."
"Was that process followed when we had the change orders?" asked Cardwell.
"I'm not aware that the commissioners have approved any change orders at this point," said Geltmaker.
"Okay. That's why I'm asking," said Cardwell.
"So there aren't any change orders to date that's been approved, and as far as when the attachments were added... I'll have to get back with you when I look up an exact date," Geltmaker replied. "I won't have an exact date, I just know that when we fulfilled public records requests, we had those available."
"Because I was asking myself why we was adding stuff after the fact, and I don't remember voting on it," said Cardwell. "I might be an airhead or something, but I don't remember that part."
"On June 4, 2024... it was probably Rick Roberts [Commissioner Cardwell's predecessor]," said Geltmaker.
"But I received the agreement way after that, and it's proven up and followed up with emails," Cardwell remarked.
"Oh, when you approved it," Geltmaker replied.
"Yeah, when was the documents included in it? When was that approved?" Cardwell asked. "Because the original BOT agreement has none of that. Let's just get this all out in the open."
"So on June 4 the board approved the BOT agreement between Washington County Commissioners and Temple & Temple Excavating and Paving for the construction of the Washington County Highway Department facility, subject to any changes approved by Phillip Marshall," Geltmaker replied.
"When was the addendums inserted into that?" asked Cardwell.
"I don't have any addendums other than the one from the last meeting," said Geltmaker.
"That's what I'm asking. I don't have that in front of me," Cardwell said.
"Just one addendum that the commissioners approved at the last meeting, and then today I'm asking that you update the date of the BOT agreement to reflect the minutes of June 4, 2024, to update the completion date to April 15, 2026, and to approve the BOT in its completion so there's no question as to what exhibits may exist. And that's what I'm asking the board to approve today,” said Geltmaker.
Commissioner Ewen made the motion to accept the date changes, Commissioner Marshall seconded the motion. The motion passed in a 2-1 vote, with Commissioner Cardwell in opposition.
