The Indiana Court of Appeals recently held that if an employment contract delegates certain statutory authority from a board of commissioners to a hired human resources director – whose contract outlasts a board member’s elected term – the contract may be voided as against public policy.  The Court in Board of Com’rs of Delaware County v. Evans v. Beverly J. Evans, 979 N.E.2d 1042 (Ind. Ct. App. 2012) found that the terms of the employment contract delegated statutory authority to the employee, by making her a “policymaker,” which includes “making policy judgments, ranking and evaluating policy objectives and making choices among competing goals and priorities.”  The Court voided the employment contract declaring that binding a successor elected official to that employment contract “would inhibit the Board, as newly constituted, from exercising the discretionary powers entrusted to it by the electorate.”  While a member of the Court dissented by finding that the employee had a “role in certain discretionary function,” it did not rise to the level of limiting the commissioners overseeing the position.

As a result, both elected officials and their employees that outlast the elected term must recognize that Indiana courts look unfavorably upon any limitation of an elected official’s statutory duties and will go to great lengths to protect those entrusted rights, even if it means voiding an otherwise valid employment contract.

If you have any questions on this issue or other employment law issues, place contact us.

FDIC Provides Guidance to Banks for SBA Lending Products

In its Summer 2011 Supervisory Insights publication, the FDIC reiterates its goal of encouraging banks to lend to creditworthy small businesses. The FDIC notes that the "guaranty that accompanies a Small Business Administration (SBA) loan is increasingly attractive to banks looking to expand lending opportunities."  The Summer 2011 Supervisory Insights publication provides specific guidelines to banks that wish to pursue SBA lending, including information that may be helpful for banks in preparation for examiners reviewing a bank's SBA loan portfolios.  Because the requirements for underwriting, servicing, risk grading, and liquidating SBA loans often differ from those for conventional lending programs, the FDIC advises banks to identify and understand these requirements and develop an SBA lending program that includes opportunities for ongoing training.

The most common SBA guaranty programs are the 504 and 7(a) loans.  The 504 Loan Program provides small businesses with long-term financing to acquire major fixed assets, such as real estate, machinery, and equipment. Typically, lenders finance 50 percent of the acquisition with a senior lien, the business provides at least 10 percent equity, and the remaining balance is financed by a Certified Development Company (CDC) with a second lien. A CDC is a private, nonprofit corporation that contributes to local economic development. The CDC receives funding from a debenture that is 100 percent guaranteed by the SBA. The advantage of this program is that the CDC portion is a fixed, below market rate loan for 20 years.

The 7(a) Loan Program features a range of loans, including standard, special-purpose, express, export, and rural business loans. These loans are funded by lenders and conditionally guaranteed by the SBA. Banks participate in 7(a) Loan Programs as a regular, certified, preferred, SBAExpress, or Patriot Express lender and must submit applications to the SBA to receive approval for these designations. Each designation provides lenders with varying degrees of authority and responsibility. The preferred, SBAExpress, and Patriot Express designations allow lenders to make loan approval decisions without prior review by the SBA; lenders must be approved for these designations every two years. The SBA makes all loan approval decisions under the regular and certified designations.

The most widely used 7(a) programs are standard and SBAExpress loans.  As of May 2011, Standard 7(a) program loans are for a maximum of $5,000,000 with a guaranty of no more than $3,750,000 or 75 percent of the loan amount. Standard loan terms can be up to 25 years for real estate, up to 10 years for equipment, and up to 7 years for working capital.  Interest rates are based on published indices as well as the size and maturity of the loan.  The SBAExpress program features an accelerated loan approval process. As of May 2011, the SBA Express guaranty is 50 percent of the loan amount, and the maximum loan is $1,000,000. The advantage is that lenders can use their own closing documents – rather than SBA closing documents – which saves time and expense. This program also allows lenders to fund lines of credit up to 7 years, which is not allowed under the standard program.

If you have any questions regarding this issue or any other banking and finance issues, please contact the author, Mark E. Miller, or the Bowers Harrison attorney with whom you usually work.