HomeMy WebLinkAbout06-30-2006COUNCIL PROCEEDINGS OF THE
COMMON COUNCIL OF THE CITY
OF JEFFERSONVILLE, INDIANA
June 30, 2006
The Common Council of the City of Jeffersonville, Indiana met in regular session
in the Mayor's Conference Room in th9 City-County Building, Jeffersonville, Indiana, at
4:30 P.M. on Friday June 30, 2006.
City Council President Barbara Wilson, with Deputy Clerk Treasurer Barbara
Hollis at the desk, called the meeting to order. Also present was City Attorney Les
Merkley. Council President Wilson welcomed all in attendance, asking all those present
to stand as Councilperson Perkins gave the invocation. Council President Wilson then
asked all those present to join him in the pledge of allegiance to the flag.
The roll was called and those present were; Councilpersons John Perkins, Ed
Zastawny, Keith Fetz, Connie Sellers, Barbara Wilson, and Phil McCauley.
Absent: Councilperson Ron Grooms.
Following discussion, Councilperson Perkins made the motion to table agenda
items #13, #14, and #18, second by Councilperson McCanley, passing on a vote of 5-0.
Council President Wilson did not vote..
Council President Wilson presented the minutes for consideration by the Council.
Councilperson Fetz made the motion to approve the minutes of June 5, 2006, (7:30 P.M.)
as presented, second by Councilperson Perkins, passing on a vote of 5-0. Council
President Wilson did not vote.
Deputy Clerk Treasurer Hollis presented the claim list for consideration by the
Council, explaining four additional claims from EDIT and TIF. Councilperson Fetz
made the motion to approve the claims and the four additional as presented, second by
Councilperson McCauley, passing on a vote of 5-0. Council President Wilson did not
vote.
PUBLIC COMMENT:
Mr. Grant Morton asks why there is such a hurry to pass the Campaign Finance
Ordinance with no public comment. Mr. Morton also asks why Ordinance No. 94-OR-17
is not enforced. He asks questions regarding fair market value, organization limits and
June 5, 2006 2
post-employment restrictions. Mr. Morton said it appears this will be a police board. He
asks who will fund the attorney costs and subpoena authority.
Council President Wilson presented a quilt, made by Ms. Theresa Fisher
containing squares signed by the Council, to Ms. Nellie Knowland.
AGENDA ITEMS:
Redevelopment Director Barry Cahill requests passage of Ordinance No. 2006-
OR-34, Salary Ordinance Amendment (Department of Redevelopment). Councilperson
McCauley made the motion to pass Ordinance No. 2006-OR-34 on the second and third
readings, second by Councilperson Perkins, passing on a vote of 5-0. Council President
Wilson did not vote.
City Attorney Les Merkley presented Ordinance No. 2006-OR-32, An Ordinance
Establishing Parks Department Non-Reverting Funds. Councilperson Perkins made the
motion to pass Ordinance No. 2006-oR-32 on the second and third readings, second by
Councilperson McCauley, passing on a vote of 5-0. Council President Wilson did not
vote.
Councilperson Fetz presented two legal opinions regarding Ordinance No. 2006-
OR-36, Municipal Campai~ Finance Code. Councilperson Perkins noted the committee
has worked hard for three months on this. Councilperson Fetz made the motion to pass
Ordinance No. 2006-OR-36 on the second and third readings, second by Councilperson
Sellers. Councilperson McCauley explained the committee has worked for three months,
holding 5 public meetings. Councilperson McCauley has done personal research and
feels the Council is on solid ground. He does not believe this is a free speech issue. This
is not limiting contributions, but trying to eliminate influences. Follow-up may be
required regarding the board. This will be published. A pamphlet will be proposed for
candidates. Donors from the last campaign should be notified. Councilperson McCautey
feels very strongly about this. Councilperson McCauley made the motion to change 2.4
from $25 to $75, second by Councilperson Perkins, passing on a vote of 5-0. Council
President Wilson did not vote. Councilperson Zastawny commends the committee saying
he shares Mr. Morton's concern for sPeed. A workshop would be the usual process. This
does deserve a workshop; he feels some limits are too low. He is in favor of passing this
on the second reading, to be able to take time and do it right. He would change the
June 5, 2006 3
political makeup o£the Ethics Board. He is in favor of the spirit. He is not comfortable
passing on the second and third reading today. Councilperson McCauley feels another
Ordinance is in order regarding the Board. Councilpersun Fetz does appreciate
Councilperson Zastawny's comments; and feels the full Council should work on
amendments. Councilperson McCauley would probably prefer voting on the second
reading before the third but will not vote against. He said one of the reasons he had for
running for this office was this. He is. happy Cmmcilperson Fetz moved it along. The
vote to pass Ordinance No. 2006-OR-36 on the second and third readings passed on a
vote of 4-1. Councilperson Zastawny Voted against passage. Council President Wilson
did not vote.
Councilperson Perkins made the motion to pass Ordinance No. 2006-OR-37, An
Ordinance Amending Ordinance Amending Ordinance 98-OR-40 Establishing An
Independent Municipal Purchasing Agency on the second and third readings, second by
Councilperson Fetz, passing on a vote of 5-0. Council President Wilson did not vote.
Councilperson Perkins made the motion to pass Ordinance No. 2006-OR-38, An
Ordinance Establishing The JeffersonVille City Hall Building Authority, on the second
and third readings, second by Councilperson McCauley, passing on a vote of 5-0.
Council President Wilson did not vote.
CLERK TREASURER COMMENTS:.
Deputy Clerk Treasurer Hollis said she has been instructed to present Mayor Waiz
with the Ordinances passed at this meeting at the close of the meeting. She asked if it
would be appropriate to present them to City Attorney Les Merkley, as Mayor Waiz is
not in attendance. City Attorney Merkley said the presentation should be made to Mayor
Waiz.
COMMITTEE REPORTS AND COUNCIL AND MAYOR COMMENTS:
Councilperson Fetz would tike to set up a special meeting with the Ethics
Commission and all the Council to discuss specifics. He thanks the other commission
members. Councilperson Fetz said e~erything in politics is local. He would like to see
this spread to the County, the State and the Nation. He appreciates all the input.
Councilperson Perkins reported on a recent trip to Indianapolis. He commends
the whole Council on the Campaign Finance Ordinance. He reports that Jacobi, Toombs,
June 5, 2006 4
and Lanz and Umbangh are about complete with their annexation work. The goal is no
later than the first meeting in August to adopt the fiscal plan and have the first reading ef
the Ordinance.
Councilperson Zastawny said it is a shame the Council was not willing to slow
down the Campaign Finance Ordinance for a couple of weeks to get unanimous support.
He feels the change of the meeting date is not appropriate.
Councilperson Sellers is happy the Campaign Finance Ordinance passed. She
was surprised the whole meeting was changed.
Council President Wilson invited Mr. Grant Morton to attend the workshop. She
noted Veterans Parkway is on the move and the concerts in the park are going well.
Council President Wilson thanked all for coming.
As there was no further busine to come before the Council, the meeting was
adjourned 5:30 P.M. ~ ~~
BARBARA WILSON, COUNCIL PRESIDENT
T: ·
Alan M. Applegate*
E-mail: aappIcgate~amflawyers.com
*Also licensed in Kentucky and Florida
Applegate & Fifer
Attorneys at Law
428 Meigs Avenue
Post Office Box t418
Jeffersonville, Indiana 47131-1418
Telephone: (812) 28&9499
Facsimile: (812) 282-7199
C. Gregory Filer
E-mail: gfi fer~amflawyers.¢om
Of Counsel:
Ronald R. Filer
'June 28,2006
Mr. Keith Fetz
404 Kewanna Drive
Jeffersonville, Indiana 47130
Re: Municipal Campaign Finance Code
Dear Keith:
You have asked that I review and comment on the tegality of the ordinance entitled
Municipal Campaign Finance Code that has been introduced before the Jeffersonville Common
Council.
The propriety of the drafting, consideration, and adoption of municipal legislation is
primarily governed by the Indiana Home Rule Act (IC 36-1-3, et seq.). IC 36-I-3-3 reads as
follows:
(a) The role of law that any doubt as to the existence of a
power of a unit shall be resolved against its existence is abrogated.
(b) Any doubt as to the existence of a power of a unit
shall be resolved in favor of its existence. This role applies even
though a statute granting the power has been repealed. (Emphasis
supplied).
IC 36-1-3-4 further provides as follows:
(a) The rule of law that a unit has only:
(1) powers expressly granted by statute;
(2) powers necessarily or fairly implied in or incident to
powers expressly granted; and
(3) powers indispensable to the declared purposes of the
unit; is abrogated.
Mr. Keith Fetz
June 29, 2006
Page 2 of 2
(b) A unit has:
(1) all powers granted it by statute; and
(2) all other powers necessary or desirable in the conduct of
its affairs, even though not granted by statute.
(c) The powers that units have under subsection (b)(1) are
listed in various statutes. However, these statutes do not list the
powers that units have under subsection (b)(2); therefore, the
omission of a power from such a list does not imply that units lack
that power.
IC 36-1-3~5 further reads in pertinent part as follows:
(a) Except as provided in subsection (b), a unit may exercise
any power it has to the extent that the power:
(1) is not expressly denied by the Indiana Constitution
or by statute; and
(2) is not expressly granted to another entity. (Emphasis
supplied).
Finally, lC 36-1-3~6 reads in pertinent part as follows:
(a) 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.
(b) 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; ... or
(3) comply with a statutory provision permitting a specific
manner for exercising the power.
(c) An ordinance under subsection (b)(1) must be adopted as
follows:
(1) In a municipality, by the legislative body of the
municipality. (Emphasis supplied).
Mr. Keith Fetz
June 29, 2006
Page 3 of 3
I can find no Indiana statutory or constitutional provision that would prohibit the
Jeffersonvitle Common Council from regulating municipal campaign contributions, at least to
the extent to which a contributor may be prohibited from subsequently transacting business with
the City. As such, if Jeffersonville, as a governmental unit, desires to regulate such conduct, it
must do so by ordinance adopted by its legislative body (i.e., the City Council). It is my opinion
that the City Council has the inherent authority to engage in such legislative action, provided
only that the subject matter of the ordinance is not prohibited by statute or reserved to another
entity. Again, I cannot find any authority that either limitation is applicable to the ordinance
before you.
I understand that various claims have been raised as to whether or not the draft ordinance
unduly restricts political speech in violation of the Indiana Constitution and/or the Constitution
of the United States. I do not profess to be an expert in this area of the la~v. However, my
thoughts in this regard are as follows:
1. The following headnote from the U.S. Supreme Court case of McConnell v.
Federal Election Commission, No. 02-1674 (2003) (otherwise known as the McCain-Feingold
decision) would seem to applicable to th~ ordinance before the City Council:
The govermmental interest underlying Sec. 323(a) -- preventing the
actual or apparent corruption of federal candidates and
officeholders -- constitutes a sufficiently important interest to
justify contribution limits. That interest is not limited to the
elimination of quid pro quo, cash-for-votes exchanges, see
Buckley, supra, at 28, but extends also to "undue influence on an
officeholder's judgment, and the appearance of such influence,"
Federal Election Comm'n v. Colorado Republican Federal
Campaign Comm., 533 U.S. 431, 441 (Colorado II). These
interests are sufficient to justify not only contribution limits
themselves, but also laws preventing the cimumvention of such
limits. Id. at 456. While the quantum of empirical evidence needed
to satisfy heightened judicial scrutiny of legislative judgments
varies with the novelty or plausibility of the justification raised,
Nixon v. Shrink Missouri Government PAC, 528 U.S. 377, 391, the
idea that large contributions to a national party can corrupt or
create the appearance of corruption of federal candidates and
officeholders is neither novel nor implausible, see, e.g., Buckley,
supra, at 38. There is substantial evidence in these cases to support
Congress' determination that such contributions of soft money give
rise to corruption and the appearance of corruption. For instance,
Mr. Keith Fetz
June 29, 2006
Page 4 of 4
the record is replete with examples of national party committees'
peddling access to federal candidates and officeholders in
exchange for large soft money donations.
declaratory judgment action in the name of a contributor or potential contributor.
believe the administration has the requisite standing to raise such a claim.
Any constitutional attack on the ordinance would have to be brought as a
I do not
3. The ordinance contains a severability clause. A successful challenge would result
in the striking only of the provisions lthat are found to be constitutionally deficient. The
remainder of the provisions of the ordinance would remain enforceable. I do not believe that
such a challenge could expose the City to monetary damages in any event.
4. As we discussed, I do believe that the ordinance presents some troubling issues in
its practical application as written. For instance, it would seem to be problematic for a firm to be
disqualified if a lower level employee makes a contribution that would otherwise result in the
firm's disqualification from City work if ownership/management had no input into or control
over the contribution. I believe that establishing an administrative appeals process with a
hearing before the Ethics Commission could be an effective way to handle and resolve such
situations. I would be glad to work with you in the drafting of such provisions to the extent that
my assistance might be helpful.
Again, based upon the foregoing I can find no authority that would indicate that the City
Council is prohibited from legislating matters within the proposed ordinance. If the
administration or other interested parties provide documentation to the contrary, I will be glad to
Mr. Keith Fetz
June 29, 2006
Page 5 of 5
reconsider the opinion expressed above. Please contact me if you have any further questions or
concerns regarding the above.
Sincerely,
APPLEGATE & FIFER
CGF/me
Cc: Jeffersonville City Council members
Mr. Les Merkley
C. Gregory Filer
ADAMS
LAW OFFICE
LICENSED IN INDIANA & KENTUCKY
June 30, 2006
Mr. Keith Fetz
404 Kewanna Drive
Jeffersonville, IN 47130
RE: Municipal Campaign Finance Code
Dear Mr. Fetz:
I have reviewed the Jeffersonville Campaign Finance ordinance in response to your
inquiry. Further, I have reviewed Greg Fifer's letter as well as the recent United States Supreme
Court decision in Randall, Et. Al., v. Sorreli, Et. Al.
In light of this information I would offer the following observations.
First, the Randall case actually supports the implementation of campaign finance reform
such as the ordinance offered by the City Council. The Supreme Court stated that the purpose of
contribution limitations is 'to prevent "corruption and (the) appearance of corruption" in
government. The Supreme Court concluded that this purpose was a legitimate one and that
government should take steps ensure that politics and politicians be free from the influence of
large monetary contributions.
Second, Randall requires that, before implementing such a law, there must be evidence
of "sufficient justification" for the development of legislation that limits campaign contributions.
This means that the council must be faced with some empirical data that supports the council's
belief that the problem exists that they are attempting to fix. Hence, the council must have
evidence that there is an "appearance of corruption" in city government wherein large campaign
contributors have been or are receiving contracts or no-bid contracts. Please note that it is the
independent decision of the Council to determine whether they feel that local scenario fits into
the requisite circumstances described abo~e and thus necessitate this legislation.
Third, Randall did not over-role the Supreme Court's prior decisions that upheld laws
705E. CourtAve · Ieffersonville, lN47130
Phone: (812)218-0068 · Fax: (812) 2844195
P.O Box 122 · Charlest°wn, IN 47111
Phone: (812) 256-2009
that limited individual campaign contributions. Instead, Randall found that Vermont's
limitations on contributions were excessive. The court found that the Vermont law prohibiting
more than $100 from an individual and $400 from corporations, PACs or Political parties was
too restrictive considering the costs of running state wide campaigns for governor and state
legislator.
The Supreme Court clearly states that limitations on individual campaign contributions as
well as corporate contributions are reasonable and they are designed to achieve the purpose of
preventing political corruption. The Court however, will not uphold laws that are overly
burdensome as it relates to the amount of money that Candidates are permitted to raise. The court
evaluates the "burden" by considering the size and breadth of the office sought. Here, the city
council must weigh the city's needs, size and breadth against that of other communities in
determining the "burden" imposed by the proposed ordinance.
Lastly, the Randall case, as well as all other Supreme Court decisions regarding
campaign contributions, addresses a statute that effects "all" donors. The city's ordinance
actually only effects individuals who want to "do business" with the city after they make
campaign contributions. Therefore, the city's ordinance is actually less restrictive than the
Vermont ordinance and every other statute that has been upheld.
As an example, the city's ordinance does not prohibit a "non vendor" from donating
$25,000 or $25 Million to a candidate for office. The practical effect would be that such a
donation would disqualify that vendor from receiving any business from the city as described in
the ordinance. This means that the free speech rights of individuals who do not want to do
business with the city could not suffer one iota. Instead, the only persons limited by this
-.-ordinance would be those who want to make large campaign contributions and then attempt to
secure no bid, or other, contracts from thel individual(s) to which they had made the contribution.
The city's ordinance seems to actually promote the purpose described by the Supreme
Court more so than the all inclusive ordinances. The city's ordinance seems to specifically
address the issue of "corruption" more directly than the Vermont and/or any other statute that the
United States Supreme Court has upheld. Therefore, it seems that, in light of Mr. Fifer's analysis
of the Home Rule law, the city's ordinance is valid and enforceable.
In conclusion, the Supreme Court notes that the Vermont statute failed to consider the
ramifications of inflation upon the contribution limitation. The Supreme Court indicated that the
revised Vermont statute should permit the acceptable donation amount to increase in relation to
the inflation index. It is suggested that the city's ordinance consider this as well.