Wednesday, December 22, 2010

Kass Hits Nail On The Head In Plea For Leniency For Former Governor

The mainstream news media in Illinois has been abuzz as of late exuding sympathy for the imprisoned former Illinois governor, George Ryan, and his dying wife, Lura Lynn. Ryan has spent about half of the six and one-half year term he received for political corruption while he served as a statewide constitutional officer. Since the day he was first sentenced, his attorneys, including former Illinois Gov. James Thompson, have filed numerous motions and appeals to overturn his conviction, as well as requests for presidential clemency from both former President George W. Bush and President Barack Obama. No one can argue with the tragic circumstances of his wife being diagnosed with terminal cancer and the prospect she will spend her last days in this world without her beloved husband at her side. When U.S. District Judge Rebecca Pallmeyer rejected Ryan's latest request for relief, the family of George Ryan, lashed out at her decision. His son, George Ryan, Jr. "Homer", called her "heartless and cruel."  "Is this what American justice is now?" he asked.

Most of the media reports seemed sympathetic to Ryan's request for an early release, particularly the Sun-Times' columnist Michael Sneed, a personal friend of the family. "It’s a no!, Sneed declared. "She’s frail, pale and in pain. But she says she is resigned to God’s will. “I can’t change things, but I can hope things will change,” said Lura Lynn Ryan, whose husband — ex-Gov. George Ryan — had just lost his bid for freedom to help his cancer stricken wife." If other people in the news media lost perspective on the issue, the Chicago Tribune's John Kass did not. In his column today, Kass notes Pallymeyer not only found the evidence upon which he was convicted for honest services fraud--which the U.S. Supreme Court narrowed in another Chicago decision earlier involving the former CEO of The Tribune's parent company--she found herself constrained to treat Ryan no differently than other inmates serving a federal prison sentence. Kass' news reporting colleagues gave us the backdrop to Judge Pallmeyer's decison:
In the opinion's final two pages, the judge shot down releasing Ryan from prison to be with his wife, who according to her doctor has three to six months to live "at best."

Pallmeyer referred to "the sad news" of Lura Lynn Ryan's terminal illness. But she noted she had "the painful duty" to rebuff even more compelling requests for freedom, including by those who are the sole supporters of children or the lone caregivers for disabled relatives.

"Any sensitive judge realizes that a lengthy prison term effectively robs the convicted person of what we all value most: months and years with loved ones, some of whom will no longer be there when the sentence has been served," she wrote. "Mr. Ryan, like other convicted persons, undoubtedly wishes it were otherwise. His conduct has exacted a stiff penalty not only for himself but also for his family."

Pallmeyer, considered among local attorneys to be a compassionate judge, presided over Ryan's six-month trial in 2006. Her 61/2 -year prison sentence was less than prosecutors had sought and near the low end of federal sentencing guidelines, said Patrick Collins, a former federal prosecutor who led the case against Ryan. A jury convicted Ryan of racketeering, fraud and other charges for accepting gifts for himself and his family in return for lucrative state contracts and leases.

"I don't think anyone in the prosecution is rejoicing about the decision, but Judge Pallmeyer made the right decision," Collins said.

Ryan's attorneys pledged to appeal Pallmeyer's ruling and to petition the U.S. Bureau of Prisons to release Ryan on "compassionate grounds."
Kass took strong exception to the younger Ryan's condemnation of Pallymeyer's decision as an indictment of our criminal justice system.

Usually, the guys with clout line up behind a special somebody and things happen. They apply institutional, legal and media pressure. The rules and the law get bent.

The special somebody is portrayed by friendly media not as a crook, but as some kind of victim. And that's how the guys with power get their way.

The people know that the law isn't necessarily the law for the guys with clout. They know this because they live in Illinois.
Kass noted Judge Pallymeyer said no to those with clout who always seem to get their way in having the rules of justice bent to favor them over ordinary citizens. "Just because you have the Illinois political class behind you — even U.S. Sen. Dick Durbin soiled himself by publicly pleading for Ryan's early release — doesn't mean that politicians are above the law," Kass wrote. "U.S. District Judge Rebecca Pallmeyer stood up to the guys with the clout. And she said something they're not used to hearing," Kass said. "She said no." As he always so eloquently makes his point, Kass reminds his readers about the forgotten victims of Ryan's corruption--six children who died a very painful death.

It started on Election Day in 1994, when six Illinois children were killed in a fiery crash in Wisconsin. Their parents, Scott and Janet Willis, had voted that morning to re-elect Ryan as Illinois secretary of state, the office that was his springboard to the governor's mansion.

It turned out that the driver of the truck involved in the Willis crash had paid bribes for his license under Ryan's watch. Bribery was rampant in Ryan's office, with the cash going to fund his ever-increasing campaign treasury.

So when the crash took the lives of the Willis children, and Ryan learned of it, he quashed the investigation into whether bribes were paid.

He was convicted of this — something conveniently forgotten by his media apologists — and on this alone he should remain in prison for his entire 61/2-year sentence.

The crash became an issue in his 1998 campaign for governor. So Ryan responded the way he knew how, by promising billions in state funds — what would eventually become his $12 billion Illinois FIRST spending package — to feed the special interests.

Those interests had their own press agents and spinners and they were hungry. Naturally, they argued that Ryan was a great guy, a man who'd "get things done." They had one thing on their mind: to feed and feed and feed.

Lured by the billions Ryan promised, Illinois stepped lightly over the graves of those Willis kids and reached for the money. He bought his way clear, at least for a time.

And that's the larger sin. That's how the corruption of elected officials infects the rest of us.

Yes, Ryan stepped over those kids first. But many followed. Political leaders, business leaders, institutions and voters, too, were coerced.

The stain of that bargain can't be easily cleansed. But Judge Pallmeyer's eloquent opinion, and her bravery in standing up to the guys with clout, is certainly a start.
It's always refreshing when someone in the mainstream media gets it. I would almost lay bets that President Obama grants clemency to Ryan before the year is over. That's what those with clout, both Republicans and Democrats, and their friends in the mainstream media expect him to do, after all.

Leerkamp: Grand Jury Named The Wrong Defendant

Outgoing Hamilton Co. Prosecutor Sonia Leerkamp boasted of the great work a grand jury did in investigating the alleged sexual assault of two freshman members of the Carmel High School basketball team by four senior members of the team when she announced their decision to indict the four senior players for non-sexual-related charges earlier this year. One-by-one, she has allowed the defendants to plead down their charges to minor misdeameanors and avoid jail time. Today, she announces one of the defendants should have never been charged by the grand jury in the first instance because he was in a ceramics class at the time the alleged assaults occurred. That move has once again angered the victim's attorney, who has been highly critical of Leerkamp's handling of the case. From the Star's Robert Annis:

The attorney for one of the alleged victims in a Carmel High School assault case linked to four basketball players blasted the Hamilton County Prosecutor’s Office for dropping the charges.

“Sonia Leerkamp originally applauded the grand jury ... and now charges are dropped because they weren’t thorough,” said attorney Robert Turner. “How could the grand jury indict someone that wasn’t there? This investigation has been going on for a year; how do investigators miss that he wasn't there?”

Turner said he was continuing to press for a Justice Department investigation into the handling of the case, adding for the first time he was considering additional litigation against Leerkamp and her office

A fourth former Carmel High School basketball player accused in the hazing of a younger teammate won't face a plea bargain in Hamilton County like three of his teammates: Those charges against him have been dropped.

Hamilton County prosecutors filed a motion to dismiss misdemeanor battery

and criminal recklessness charges against Brandon Hoge, 19, late Tuesday.

Hoge’s attorney Jim Crum confirmed the charges — stemming from a series of alleged locker-room attacks at the high school — were dropped because Hoge was in a ceramics class at the time of the alleged attacks.

Early indications are the charges -- stemming from a series of alleged locker-room attacks at the high school -- were dropped because Hoge was in a ceramics class at the time of the alleged attacks.

“We were always surprised Brandon was associated with these charges,” Crum said. “The grand jury handed down those charges, and I don’t know the reason they did it. We’re not surprised the charges were dismissed.”

Tuesday, December 21, 2010

2010 Census Data Released

The U.S. Census Bureau today released the results of the 2010 national census that will determine the apportionment of congressional seats among the 50 states. Indiana will hold steady at 9 seats; however, the average size of the state's congressional districts will grow by about 46,000 people to 722,398. Indiana's neighboring states didn't fare as well. Ohio will lose 2 congressional seats, while Illinois and Michigan will lose one each. Kentucky holds steady with 6 seats. Texas is the big winner, picking up 4 seats to increase its state's delegation to 36 seats. Florida picks up 2 seats, Arizona, Georgia, South Carolina, Utah and Washington each pick up one new seat. The trend of congressional power shifting to the South and West continues with these latest census numbers at the expense of the upper Midwest and Northeast.

Straub Narrowly Wins Council Backing

The Indianapolis City-County Council narrowly approved the reappointment of Frank Straub as Public Safety Director by a vote of 16-13 at last night's council meeting. Two Republicans, Christine Scales and Janice McHenry, boldly bucked the party leadership in voting against his reappointment. At least two other Republican councilors rumored to be leaning against Straub ultimately voted in favor of last night's resolution. Libertarian Ed Coleman voted against Straub, while Three Democrats, Vernon Brown, Angela Mansfield and Jackie Nytes, supported Straub. I wondered if Brown didn't have a bit of a conflict of interest seeing that he is a battalion chief for the Indianapolis Fire Department, which Straub oversees as Public Safety Director. If Straub's vote failed last night, it is likely he would have remained in the position through the end of Ballard's term if Ballard held off naming a successor. An Avatar-styled animation video has popped up on YouTube poking fun at Straub's abrasive management approach. A similar video appeared on YouTube recently taking issue with Carmel Mayor James Brainard's relationship with his fire department. Hat tip to IndyStudent.

IURC Should Reject $29 Million Termination Payment To Veolia

Attorney John Price has filed an objection with the Indiana Utility Regulatory Commission on behalf of Indianapolis water ratepayers to the Ballard administration's request to approve a $29 million termination fee to Veolia in consideration for the termination of its management agreement to operate the water utility. Throughout the debate over the proposed transfer of the water and sewer utilities to Citizens Energy, this blog wondered how the transfer could possibly result in any real savings to ratepayers as long as it was stuck with the one-sided management agreement with Veolia that paid the French-owned company service fees of more than $40 million annually, in addition to tens of millions in incentive payments the IURC had previously ruled in a prior rate case were not justified under the terms of the management agreement. Repeatedly, we were told it would prove too costly to terminate the agreement, even though the IURC itself had made a case for terminating it for cause.

The objection filed by the ratepayers raises a number of issues, any one of which could have served as a basis for terminating the agreement, including:
  • Warnings made by Carlton Curry (former DOW director) of a need for “immediate attitude change” regarding water safety;
  • EPA, FBI, IDEM and IURC all launched investigations into Veolia’s management of water company;
  • Veolia management employees were visited at home by FBI agents to discuss Veolia’s operation of water company;
  • Veolia’s failure to maintain operable water hydrants;
  • Curry found Veolia on at least 40 separate occasions sought incentive payments for which it was not entitled;
  • Veolia refused to pay for the Atrazine Monitoring Program as ordered by IDEM, causing the city to incur the expense of testing for the safety of the water supply;
  • Failure of Veolia to properly manage the financial affairs of the water company, causing it to incur a $20 million shortfall the city had to furnish the water company from other sources;
  • Termination of employee benefits for non-collective bargaining employees in contravention of an agreement with the city all employees would have benefits at least equal to, if not better than what they had previously; and
  • The management agreement required Veolia to pay debts as they were incurred and it failed to do so by properly managing the financial affairs and paying benefits to all employees.
In 2007, the Peterson administration signed a First Amendment to the Agreement under which it provided more generous management fees to Veolia despite all of the problems it had encountered with Veolia's management of the water utility. The Peterson administration also repeatedly overruled Curry and paid the company incentive payments it clearly had not earned. That First Amendment contained a very important provision as it related to future termination of the agreement, which the Ballard administration completely failed to avail itself of during the negotiations that led to the agreement to terminate Veolia's management agreement after the City-County Council had already approved the transfer of the utility to Citizens Energy. Veolia specifically waived its right under the First Amendment to challenge the enforceability or legality of the management agreement or the First Amendment "on any basis."

Despite Veolia waiving its rights to contest the enforceability or legality on any basis under that provision of the First Amendment, the Ballard administration has maintained that it faced "protracted litigation" with Veolia if it did not agree to pay the company a termination fee. According to the filing, Citizens Energy conditioned its purchase of the water and sewer utilities on the termination of Veolia's termination agreement despite statements utility executives made to the contrary prior to the approval of the deal when questioned about the management agreement. The objection notes the termination agreement cites "insufficient funding" as the basis for terminating the agreement when there was absolutely no indication of a lack of funds to pay for Veolia's management fees, and it wonders why the City would not have exercised any one of numerous grounds for terminating the agreement for cause due to Veolia's "serial violations" of the agreement.

The agreement with Citizens Energy provided for an escrow fund of $40 million to cover claims that might attend the transfer of the water utilities out of which the Ballard administration is paying the $29 million termination fee. The ratepayers' objection notes the sanitation general fund already had a $90 million balance without the escrow fund. Particularly troubling is the complete lack of evidence the City, Citizens Energy or Veolia management personnel could furnish to the IURC to support the $29 million payment to Veolia. The Mayor's Chief of Staff, Chris Cotterill, said the payment reimbursed Veolia for start-up costs it incurred under the management agreement, but he could provide no itemization of what those costs were. Essentially, the figure was an arbitrary amount arrived at during a mediation settlement conference that should not have been necessary in the first instance since Veolia had already waived its rights under the clear terms of the First Amendment.

The motion filed by the ratepayers asked the IURC to do one of the following: (1) deny the $29 million termination fee; (2) reduce the amount of the termination fee; or (3) conduct a separate hearing to consider evidence in support of making a termination payment to Veolia before entering a final order in the case. Hopefully, the IURC will make a decision that takes into consideration the interests of ratepayers since it is abundantly clear the Ballard administration completely neglected their interests in arriving at the agreement to pay $29 million to Veolia. Cotterill, incidentally, is a former attorney with Barnes & Thornburg, which represented Veolia in the settlement discussions.

Monday, December 20, 2010

Delph Legislation Addresses Ballot Eligibility For Presidential Candidates

Sen. Mike Delph has introduced SB 114, which addresses a big hole in Indiana election law discovered during the 2008 presidential election. Current Indiana clearly requires the Indiana Election Division to deny ballot access to any presidential candidate who fails to meet the constitutional eligibility requirements for holding that office; however, it makes no provision for requiring candidates to furnish any evidence with their declaration of candidacy to indicate whether they are eligible to hold the office. Article II, Section 1 of the U.S. Constitution requires a person to be a natural born citizen, at least 35 years of age and have resided within the United States for at least 14 years in order to be eligible to be president. Under Delph's legislation, no major party candidate will be eligible for the Indiana presidential primary unless they file a declaration of candidacy attesting that he or she meets the constitutional eligibility requirements and furnish the state election's division with a certified copy of the candidate's birth certificate and any other evidence the Commission may require to establish the candidate satisfies the constitutional eligibility requirements.

The 2008 election presented an unprecedented situation where the candidates nominated by both major parties for president had questions raised by citizens about their eligibility, which resulted in dozens of lawsuits being filed across the country. Sen. John McCain's birth in Panama where his father was serving his country in the Navy led to lawsuits being filed against his candidacy, while questions about the birthplace of Barack Obama, resulted in even more lawsuits being filed challengin his eligibility. All of the lawsuits were brought by citizens or members of the military, and all were dismissed for lack of standing without deciding the cases on the merits. Sen. McCain sought to reassure voters by having his colleagues in the Senate pass a non-binding resolution finding that the term "natural born citizen" extended to the children of U.S. citizens born abroad while in service to their country. Obama furnished to  what was purported to be a certified copy of his birth certificate, although questions lingered about his natural born status because his father was not a U.S. citizen and persistent Internet rumors that he was actually born in Kenya and not Hawaii as he claimed.

Neither McCain nor Obama were required to furnish any election authority with any document such as a birth certificate to establish their eligibility to gain access to a ballot. After McCain was nominated at the Republican National Convention, Republican officials filed with the Elections Division a Certificate of Nomination that attested both he and his Vice Presidential candidate, Sarah Palin, met the eligibility requirements set out in the U.S. Constitution. The certificate of nomination filed by Democratic Party officials for Obama and his running mate, Joe Biden, contained no similar attestation. Sen. Delph's legislation will require the certificate of nominations for the major party and third party candidates to include an attestation of eligibility, as well as a certified copy of their birth certificate or such other documentation as may be required by the Elections Division. Candidates who previously filed the documentation for the primary election will not be required to resubmit the evidence of their eligibility.

By way of disclosure, I suggested this legislation to Sen. Delph, who graciously agreed to sponsor it. It should be made clear SB 114 does not define the term "natural born citizen", a term that appears only once in the U.S. Constitution in the presidential eligibility clause. The U.S. Supreme Court has never directly addressed the meaning of the term. Some argue it includes all persons born on U.S. soil, while others contend it includes only children born to U.S. citizens. In the case of McCain, many legal scholars believe it includes children born abroad to U.S. citizens in service to their country. SB 114 will provide evidence with the candidate's filing to at least satisfy the age of the candidate, his or her place of birth and the identity of his or her parents. From that basic information, the Elections Commission at least has evidence with a candidate's filing for determining their eligibility in the event it is contested, or for determining whether more information is needed from the candidate to establish their eligibility.

Critics will no doubt poke fun at SB 114 and label Delph and those who support it as "birthers." To them I say it is no more absurd than the documentary proof required under state law for persons seeking a driver's license, or requiring all registered voters to present a valid picture ID in order to cast a vote in person at an election. And it certainly is no more burdensome than evidence required of ordinary citizens in any number of transactions. As an immigration lawyer, my clients who wish to sponsor family members for an immigrant benefit are required to produce a certified copy of their birth certificates in order to prove their eligibility to sponsor them for an immigration benefit. Surely we can require such basic proof from any person who would seek to hold the most powerful elected office in this country. If Indiana and other states had this requirement in 2008, the doubts about the candidate's eligibility could have been dispelled in large part. The persistent rumors and doubts about Obama's eligibility has further undermined public confidence in his presidency following his election, and he has made no effort to assuage doubters by opening up his Hawaii birth records. State laws generally prohibit persons from gaining access to another person's birth record. News reports indicate legislators in at least four other states, including Arizona, Georgia, Pennsylvania and Texas plan to introduce legislation similar to SB 114 in their state legislatures during their upcoming legislative sessions.

Skillman Rules Out Run For Governor

Lt. Gov. Becky Skillman surprises observers with an announcement today she will not be a candidate for governor in 2012. Her announcement hints "minor health issues" detected during a recent medical examination may have played a role in her decision. WRTV reports:

In a written statement released at about 11:30 a.m., Skillman revealed that her end of year physical exam uncovered “minor health issues,” but did not elaborate on what those issues are.

“Nothing will interfere with my devotion to my duties as lieutenant governor, and I plan to continue the same pace as always,” Skillman said. “However, it is best to continue without the additional stress of a gubernatorial campaign.”

Skillman has served as lieutenant governor for six years under Gov. Mitch Daniels. She began her political career in 1976.

"Indiana has never had a better lieutenant governor than Becky Skillman," Daniels said in a statement released just after noon.
Many observers believe U.S. Rep. Mike Pence will opt to run for governor and forgo a run for president.  If Pence decides against running, the field would appear to be wide open on both the Republican and Democratic sides after Sen. Evan Bayh recently announced he, too, would not run for the office in 2012.

Public Pensions Must Go

Sixty Minutes' Steve Kroft had a compelling feature story last night on the pending insolvency state and local governments face due to unfunded public pension liabilities. "The most alarming thing about the state issue is the level of complacency," Meredith Whitney, one of the most respected financial analysts on Wall Street and one of the most influential women in American business, told correspondent Steve Kroft. Whitney expects dozens of government units in the country to default on their bonds within the next few years because of the problem. Kroft tells about the severity the pension problem poses for neighboring Illinois. Many state vendors are waiting six months or more to get their bills paid. State police are turned away by gas station owners who will no longer accept their business because of the state's well-earned reputation as a deadbeat state. "This is the state of affairs in Illinois. Is not pretty," Illinois state Comptroller Dan Hynes told Kroft. "It's fair to say that there are tens of thousands if not hundreds of thousands of people waiting to be paid by the state," Hynes said. New Jersey Gov. Chris Christie seems to be the only governor in the country who recognizes the problem's severity for what it is and is seeking a complete overhaul of his state's public pension system. In Illinois, corrupt career bureaucrats are artificially inflating their salaries before they retire in order to boost their annual pension payout. Highland Park's park district commissioners are investigating how large bonuses to the park district's former executive director and finance director have allowed them to receive annual pensions as high as a staggering $166,000!

Sealed Indictments?

There are rumblings of sealed indictments in the federal government's ongoing investigation involving Tim Durham's Ohio-based Fair Finance Company more than a year after FBI agents raided offices of the company in Ohio and Durham's Obsidian Enterprises office in downtown Indianapolis. The bankruptcy trustee for the failed company is expected to file a civil lawsuit in Ohio federal district court before year's end naming a lot of businesses and individuals who benefited from the more than $200 million small investors in rural Ohio lost when the company closed last year following the FBI raid. Could justice for the victims finally be coming?

Sunday, December 19, 2010

Bayh And Lugar Split On Repeal Of DADT

The historic vote to repeal the Don't Ask, Don't Tell law first signed into law by former President Bill Clinton found Indiana's two senators on opposite sides. Sen. Evan Bayh voted to repeal the law barring openly gay and lesbian persons from serving in the military, while Sen. Richard Lugar, a Navy veteran, voted against the law's repeal. Lugar explained his vote:

Indiana Sen. Richard Lugar was among the Republicans who opposed the measure, saying: "I am concerned about the impact of lifting 'don't ask, don't tell' on unit cohesion and combat effectiveness, particularly at a time when so many U.S. military personnel are engaged in combat-intensive missions in Iraq and Afghanistan."
Eight Republicans joined 55 Democratic senators and 2 independents in passing the law's repeal by a 65-31 vote. Richard Burr of North Carolina, Mark Kirk of Illinois, John Ensign of Nevada, Scott Brown of Massachusetts, George Voinovich of Ohio, Lisa Murkowski of Alaska, and Olympia Snowe and Susan Collins of Maine were the eight Republican votes. Burr was the surprising vote. He had strenuously objected to the timing of the vote during a lame duck session of Congress. “It's just that we’ve had a generational change and I have vehemently objected to making a policy change of this magnitude at this time. When cloture was passed, that settled that,” Burr said. “It’s not accepted practice anywhere in our society, and it only makes sense. But again, I was vehemently opposed to the timing of this.” Illinois' newly-elected Republican senator had been undecided on his vote as recently as this past week. Kirk was plagued during his Senate campaign by rumors he was a closeted gay man. I've never understood the argument proponents of this law have forwarded that allowing gays to openly serve in the military would somehow compromise the effectiveness of our military. Most countries, including Canada, Great Britain and Israel, have long permitted gays to serve in the military, and many have and are serving in the U.S. military despite the ban.

Saturday, December 18, 2010

At Least Someone Is Doing The Right Thing

The folks who got duped out of their life savings by Bernie Madhoff got an unexpected early Christmas gift when the widow of a Florida philanthropist, who had reaped a chunk of the money from Madhoff's Ponzi scheme, agreed to return $7.2 billion from her late husband's estate to a trust set up for the victims. From the AP:

Federal prosecutors reached the settlement with the estate of Jeffry Picower, a businessman who drowned at age 67 after suffering a heart attack in the swimming pool of his Palm Beach, Fla. mansion in October 2009. Picower was the single biggest beneficiary of Madhoff's fraud.

U.S. Attorney Preet Bharra called the forfeiture the largest in Justice Department history and a "game changer" for those swindled by Madhoff.

"We will return every penny received from almost 35 years of investing with Bernard Madhoff," Barbara Picower said in a statement. "I believe the Madhoff Ponzi scheme was deplorable, and I am deeply saddened by the tragic impact it continues to have on the lives of its victims. It is my hope that this settlement will ease that suffering."

The settlement means roughly half of the $20 billion that investors entrusted to Madhoff has now been recovered, authorities said.
It's too bad Tim Durham doesn't have the compassion for his victims as Picower had for the Madhoff victims. A bankruptcy trustee for his failed Fair Finance Company expects to recover no more than one percent of the more than $200 million small investors in rural Ohio lost from Durham's Ponzi scheme. At least Madhoff owned up to his fraud immediately and agreed to spend the rest of his life in prison. Durham is still a free man in denial and continuing to live a lavish lifestyle out in L.A. as his victims go through their second Christmas after having their life savings wiped out.

Friday, December 17, 2010

Jackie Nytes Got Clearance Letter From OSC To Engage In Partisan Political Activities

City-County Councilor Jackie Nytes, who works as the full-time executive director of the Mapleton-Fall Creek Community Development Corporation, decided against seeking re-election to the council next year after Democrats started lining up for the opportunity to challenge her at the party's slating for the May primary. Nytes has circulated an opinion letter she received from the Office of Special Counsel, an independent federal investigative and prosecutorial agency charged with enforcement of the Hatch Act among other things, which indicates the provisions of the Little Hatch Act that prohibit certain state and local government agencies and their employees from engaging in political activities, including seeking office to a partisan elective office, do not apply to her. Her point is she decided against running for re-election for reasons other than my assertion on this blog that she was barred from running by the Little Hatch Act

Nytes' community development corporation receives at least 95% of its funding from government grants. It has received its largest grants from the federal Housing and Urban Development's Community Development Block Grant and HOME programs. The Ballard administration allocated tens of millions of dollars in grant monies it received as part of the Obama administration's federal stimulus spending over the past couple of years, including close to $2 million to Nytes' CDC. According to the OSC, it will not subject a nonprofit employee to the Hatch Act prohibitions on political activities unless the federal program from which a grant recipient derives its funding statutorily deems the recipient to be a state or local agency. The OSC finds only two federal statutes, which authorize the Head Start program and Community Service Block Grant program, deem nonprofit recipients to be covered by the Little Hatch Act restrictions. This narrow interpretation of the Little Hatch Act restrictions means most of the people working for organizations that received the unprecedented expenditure of federal stimulus dollars are free to engage in partisan political activities.

What I find unfortunate in this interpretation is the categorical treatment of nonprofits for purposes of this interpretation. Let's face it, not all nonprofits are similarly-situated. Many nonprofits derive the bulk of their funding from non-government sources, while others, including Nytes' CDC, depend almost exclusively on government funding for their existence. Community development corporations are specifically recognized by state statute and are authorized to receive government funds and perform a number of government-related functions. For all practical purposes, they are government instrumentalities but for their nonprofit designation.

In Indianapolis, we have other similar nonprofits, including the Indianapolis Convention and Visitors Association, Indianapolis Downtown, Inc. and the Greater Indianapolis Progress Committee, for example, that are primarily funded and controlled by our city-county government. Indeed, the Indianapolis Star once sued the ICVA to have it deemed a public agency for purposes of reviewing its records under Indiana's Access to Public Records law. The Star maintained the ICVA, a private, nonprofit corporation, was a public agency under the Access to Public Records law because "the monies received from the CIB by ICVA were in the nature of a grant" which made the ICVA "maintained and supported at public expense." The Indiana Supreme Court agreed the ICVA was a public agency subject to the public records law.

In the case of the grants awarded to Nytes' CDC, the money flows down from HUD to the City of Indianapolis and distributed to various agencies by Mayor Ballard's administration, subject to appropriation by the City-County Council. Nytes sits as a partisan elected member of that council carrying out a legislative function over a whole host of budgetary and substantive issues on which the partisan elected executive is dependent on her action. No sooner had Nytes crossed party lines and voted for Ballard's controversial bailout plan for the Capital Improvement Board than Ballard announced he was awarding her CDC a $1 million grant from funds the city received under HUD's Neighorhood Stabilization Program. If Nytes worked for a housing authority instead of a CDC, the OSC would have subjected her to the Little Hatch Act restrictions and barred her from seeking partisan elected office. It seems to me to be a distinction without a difference. Both entities are public agencies receiving government grants and, thereby, being maintained and supported at public expense. Am I missing something here?

UPDATE: The Star's "Behind Closed Doors" takes up the issue in this week's column. Nytes tells the Star her decision not to seek re-election had nothing to do with a potential primary challenge or Hatch Act prohibition. On the Hatct Act, the item reads:

Nytes provided an opinion she sought from the U.S. Office of Special Counsel in October. It says she isn't restricted from running for office because the Mapleton-Fall Creek organization's federal grants don't include the only two sources that specifically invoke the Hatch Act for nonprofit employees.

"I sought the official opinion on the Hatch Act because there had ben persistent remarks over the last year, by folks who do not like my votes, that I was breaking the law because of my full-time job," Nytes said . . .

Gary Welsh, a Republican attorney who publishes Advance Indiana blog, had speculated that the Hatch Act was the reason for Nytes' decision not to run.

Last week, Welsh said that even if the law doesn't apply to Nytes, her participation in politics still doesn't look right.

He argued that community development nonprofits should be considered quasi-governmental entities, akin to housing authorities, which have been found to fall under broader Hatch Act restrictions.

"This simply points up the absurdity of it all," Welsh wrote in an e-mail. "She had control over the expenditure of public funds no differently than the housing authority employee. In her role as a councilor, she gets to vote on important matters the mayor seeks in terms of the budget and a whole host of issues."
The lawyer from whom Nytes sought advice, Ed DeLaney, challenged Terre Haute Mayor Duke Bennett's election as mayor when he upset incumbent Mayor Kevin Burke. Bennett had worked for the Hamilton Center, a nonprofit which received money from the Headstart program. Even though Bennett had no control over those Headstart funds, he was still found to be in violation of the Hatch Act; however, because the complaint was not brought until after he resigned his nonprofit job to become mayor, no action was taken against him. DeLaney's efforts to overturn Bennett's election through a post-election contest for violating the Act was eventually decided in Bennett's favor by the Indiana Supreme Court.

Jail Time For Former Brizzi Aide

A former spokesman for Marion Co. Prosecutor Carl Brizzi is headed to jail, but it's not for a crime that normally earns one time in the slammer. Mario Massillamany, 33, has been ordered to serve a 32-day sentence in the Hamilton County Jail after pleading guilty to drunk driving charges, his second DUI-related conviction in the last 10 years according to the Star's Robert Annis. Massillamany, a licensed attorney, received a 60-day sentence after Judge Gail Bardach rejected a plea agreement offered by the Hamilton Co. Prosecutor's office that would have sentenced him to 20 days in the county jail and suspended his driver's license for one year.

The Hamilton Co. criminal justice system has proven far less lenient to Massillamany, who now resides in Logansport, than it has to date with the four former Carmel High School basketball players accused of sexually assaulting a freshman member of the team. Hamilton Co. Prosecutor Sonia Leerkamp has offered plea deals to three of the four players to date that allows them to participate in a diversionary program that allows them to avoid any jail sentence after pleading guilty to misdemeanor assault charges.

More Of The Joe Miller Mystery Solved

It's been nearly four months since news came that Joseph F. Miller, a prominent Indianapolis philanthropist for GLBT-related causes and the world's largest manufacturer of poppers, was found dead in his downtown home as the result of an apparent suicide. We heard stories about his business, Great Lakes Products, being raided by federal agents and closed and computers and other evidence being hauled away as evidence, but there remains no public confirmation of any official government action being taken against Miller or his businesses prior to his death. A new twist to Miller's death was added when former Pulitzer-prize winning reporter for the Indianapolis Star Dick Cady released his new book, Deadline: Indianapolis. Upon reading his book, I found a very interesting passage in Cady's book discussing Miller's relationship with former Marion Co. Prosecutor James Kelley.

Cady stumbled upon Miller while investigating Kelley's attendance at a pre-dawn party for gay men at which three of the attendees who worked at a local gay bar turned up dead in snowy field up in Hamilton Co. where their bodies had been dumped after they were shot to death. Kelley had come within the cross hairs of the Indianapolis Police Department after he set up a special unit in the prosecutor's office to investigate police corruption. When IPD investigators learned Kelley had been in attendance at the very party where the three murdered men had last been seen alive, naturally, the police wanted to learn more about Kelley's knowledge of what happened to the three men. As Cady explained in his book, a friend of the missing men, David Leigh Harrison, had gone to Kelley to advise him the men were missing. Kelley had instructed the young man on how to file a missing person's report but wanted his name left out of it. Cady learned Harrison had been questioned by IPD about Kelley and the murders after Myrta Pulliam, daughter of Star publisher Gene Pulliam, had summoned him to her house to meet with Harrison. As Cady described what Harrison told him:

At Myrta's house I met David Leigh Harrison, a thirty-one year old homosexual who was visibly frightened. Harrison's story was complicated, yet it had a simple point: He was caught between two powerful forces, IPD and Marion County Prosecutor Jim Kelley. Earlier that day, Harrison and several friends had been interrogated by CAT detectives, who wanted information about Kelley. Harrison said he didn't give much but thought his roommate, another homosexual named David Fairfield, known as Doris, gave a complete, tape-recorded statement.

My memory snapped back to a big news story last winter. Three young men, all employees of a homosexual bar, were found shot to death in a snowy field in neighboring Hamilton County. Although a former employee of the bar, Mikco Ball, had been arrested, there were unanswered questions.

Harrison knew all three victims. He knew them from gay bars and from the carriage house apartment two of them lived in the Woodruff Place section on the east side. All three had been at a pre-dawn party at the apartment the night before they disappeared. Jim Kelley and a man from his staff also were there, Harrison said.
Through Harrison's lead, Cady was led to a young Joseph F. Miller, who at the time served as the grand jury bailiff for Kelley's office. "Joseph F. Miller, a young bailiff for the grand jury, was a friend of Harrison's. Miller was known in the homosexual community as a chicken hawk, or someone who preferred boys and younger men, and he sold marijuana and a chemical known as poppers," Cady recounted. "Miller would tell us some very interesting stories later, in a confidential interview," Cady added. Cady's book does not detail what Miller told him during that confidential interview. Following an earlier blog post on Cady's book, I was informed I should look into an arrest record of Miller's in Johnson County during this time frame regarding allegations of molestation of underage boys by Miller in the Greenwood community. Another blogger, John Michael Vore, visited the Johnson County courthouse and searched for records of the arrest. Sure enough, Vore found the smoking gun. Cause No. 2-361C filed on March 20, 1977 charged Miller with sodomy for engaging in sex with two young males, ages 14 and 15 (the victims are named in the court records but out of respect to them I will omit their names here). Miller was arrested and released on a $10,000 bond, but the charges were later dropped on November 13, 1978 after Miller failed to show in court on two separate occasions. Vore became suspicious of the validity of the allegations against Miller given the perceived and, in many instances, discriminatory treatment of homosexuals in the criminal justice system during that period of time, and the fact that the salacious charges against Miller were ultimate dismissed.

After Vore passed along to me the information he discovered on Miller's arrest in Johnson County, I followed up with several other individuals to see if I could learn more about why those charges against Miller were dropped. As with many of these cases, parents of the victims are very concerned about the impact a public trial will have on their child and the potential embarrassment and lasting emotional impact on them. The parents of both victims did not want the case to go forward. One of the victim's family relocated to Oregon after the arrest took place, while the parents of the other victim feared the impact of the publicity on them and wanted the case to go away. I also learned separate charges had been filed against Miller in Marion County. The prosecutor assigned to the case was none other than Ann DeLaney, who was in charge of sex crimes within the prosecutor's office at the time. This explained to me why DeLaney, who would later become a close political confidante of Evan Bayh, would work to keep Miller's distance from Bayh when Miller would later emerge as one of the biggest political contributors to Indiana Democrats. Bayh refused to accept money from Miller, unlike other prominent Democrats, including former Indianapolis Mayor Bart Peterson, U.S. Rep. Baron Hill and former House Speaker Pat Bauer, who accepted contributions from him.

The most interesting information I learned from following up with sources concerning the Johnson Co. arrest was how it came about in the first place and the critical role Miller played as a witness in other ongoing investigations being undertaken by IPD at the time, particularly the investigation of Kelley mentioned by Cady in his book. It was a case of two separate cases converging in a way one could not have anticipated. IPD was investigating allegations an Indianapolis gay businessman, who held himself out as aiding runaway male youths in the Indianapolis area, had been sexually exploiting them by prostituting them out to adult men in the Indianapolis area through a service called "Rent A Man." Patrons of the service included some prominent local businessmen. Old newspaper stories from the period document the existence of that investigation. At the same time the "Rent A Man" investigation was under way, IPD investigators learned of the case in Greenwood involving the two youths Miller was later charged with sexually exploiting. When police brought Miller in for questioning and he learned of the serious jail time he could be facing, Miller in a matter of speaking began singing to the police.

Whatever loyalty Miller had to his boss, the Marion Co. prosecutor, quickly disappeared when faced with the possibility of hard time in prison himself. Perhaps what Miller told police is similar to the "very interesting stories" Miller told Cady during his confidential interview with him. Miller told police he had been introduced to Kelley for the purpose of providing sex to him. Miller told police he got his job as the grand jury bailiff in consideration for the sexual favors he provided to Kelley. Miller gave police a graphic description of his sexual encounters with Kelley. He told them Kelley liked to treat him like a sex slave he had purchased at a Greek auction. Miller said Kelley's proclivity toward S&M personally turned him off and he sometimes got too rough for his personal taste. Kelley treated Miller to sex-filled trips to places like Washington, D.C., New York and Montreal. Miller furnished police with records of hotels bills, plane tickets and other expenses related to the trips he took with Kelley. He gave them personal notes Kelley had sent him which suggested much more than the typical employer-employee relationship. Miller was questioned about whether grand jury transcripts were being illegally sold, but he could offer police no evidence this was occurring. More importantly, Miller signed a sworn statement. Police also had Miller examined by a respected polygraph examiner and he passed with flying colors.

To put it bluntly, Indianapolis police had Kelley's nuts in a vice with Miller's testimony. As with so many investigations involving public corruption in Indianapolis, however, there would be a series of twists and turns that would ensure the truth of what laid below the surface would never see the light of day. Miller would later recant his sworn statement, saying he only told those things about Kelley because of the enormous pressure police exerted on him, threatening him with a long time in jail. The Kelley investigation would ultimately be dropped. A lead investigator would resign in protest. Kelley would agree not to seek re-election as prosecutor in 1978, paving the way for a match-up between Andy Jacobs, Sr. and Steve Goldsmith, a race Goldsmith would eventually win and that would propel him into the mayor's office in 1991. One of Miller's friends, a chemist at Eli Lilly who spirited amyl nitrates out the back door for Miller to sell for a profit would lose his job and be charged with sex crimes. Miller would go on to use the formula he acquired from the friendly chemist to make a fortune manufacturing and selling amyl nitrates known as poppers as a recreational drug inhalant.

The Eli Lilly connection to the Miller mystery is indeed a fascinating one. When HIV/AIDS was first discovered a few years later, many medical researchers initially believed poppers were the cause of the deadly disease that inflicted so many gay men because something virtually all of the early victims had in common was their prolific use of poppers while engaging in homosexual sex. That would be the subject of a conspiracy theory but for the fact that Lilly, to the best of my knowledge, has never researched or marketed drugs to treat HIV/AIDS, a niche that has become a multi-billion dollar industry for other pharmaceutical giants that compete with Lilly. Poppers would raise their ugly head again though when Pfizer first introduced its erectile dysfunction drug, Viagra. As gay men began combining the use of Viagra with the recreational use of poppers, a number experienced sudden death resulting from a serious drop in blood pressure. Lilly later developed its own male enhancement drug, Cialis, to compete with Viagra. Interestingly, Miller's old friend former Mayor Bart Peterson, is now Vice-President of Corporate Affairs and Communications for Lilly. As mayor, Peterson not only accepted Miller's campaign contributions, he also appointed him to the Equal Employment Opportunity board. He also attended a memorial service in Miller's honor following his death.

Last year, the Indiana Stonewall Democrats presented Miller with an award for his years of service to the gay community at an event hosted at the home of Indianapolis City-County Councilor Jackie Nytes, which was co-hosted by a number of Democratic luminaries, including former Secretary of State Joe Hogsett, who has since become U.S. Attorney for the southern district of Indiana, and Terry Curry, the incoming prosecutor of Marion County. Curry has named former Marion Co. Prosecutor James Kelley's chief trial deputy, David Rimstidt, as his own chief trial deputy.

From what I gathered from my investigation of the James Kelley-Joe Miller saga, I have reached the conclusion the face of Indiana and Indianapolis politics was forever changed because the investigations into the matters involving these two men ended prematurely. The professional reputations and political careers of some very influential individuals were allowed to be kept intact because those investigations were buried. The man ultimately convicted of killing those three gay men, Mikco Ball, may or may not have been responsible for their deaths. I did not learn any additional information that resolved the doubts Dick Cady shared in his book about his culpability for their deaths. And I still don't have answers as to why Miller's business was raided in late August and he chose to end his life. Those are mysteries that will have to be solved at a later time, if ever.

Thursday, December 16, 2010

FBI Raids Another Business Tied To Tim Durham

An Internet company engaged in the unseemly practice of "cramming" telephone consumers with close ties to Indianapolis businessman Tim Durham was raided over the weekend according to WISH-TV's David Barras. Barras has this breaking news story:

A 24-Hour News 8 investigation has found an FBI raid on a Minneapolis internet company has close ties to the federal investigation of Indianapolis businessman Tim Durham.

Sources tell 24-Hour News 8 that the Minneapolis raid on a company called Phonebillit, Inc was conducted this week by agents from the FBI's Indianapolis office.

Those same sources tell 24-Hour News 8 Phonebillit is accused of what's known as cramming. Cramming happens when a company adds a charge to your phone bill for a service you didn't order, agree to or use.

Our investigation found that two of those connected to Phonebillit have close ties to local businessman Tim Durham. One is Cindy Landeen, the other is Indianapolis attorney Neil Lucas.

According to documents from the Ohio Department of Securities, Landeen was given a $284,000 loan by Fair Finance, Durham's Akron, Ohio investment company that is now in bankruptcy. Those same documents show that Lucas received $145,000 in loans from Fair Finance. Neither loan has been paid back.

A Securities and Exchange Commission filing from 2006 shows Lucas was also a part of the investment group put together by Tim Durham to buy Cellstar Corporation, a company that distributed cellular phones, shortly before it was bought by Indianapolis based Brightpoint.

Tim Durham's business partner Dan Laikin, now in prison for a stock scheme involving National Lampoon is the brother of Brightpoint CEO, Robert Laikin.

So far, the FBI investigation into Durham's dealings has not resulted in any criminal charges against Durham. But more than 5,000 Fair Finance investors lost more than $200 million. More information on the FBI raid and its ties to Durham is expected later today.

It looks like the government's case of the elaborate Ponzi scheme run using funds invested in Ohio-based Fair Finance Company owned by Durham may be starting to come together. As the dominoes start to fall, who knows how many prominent business people will get ensnared before it's all over.

UPDATE: The IBJ's Cory Schouten has more on the information the FBI is seeking from consumers about a number of companies with Durham ties:

The FBI is asking land-line phone customers across the country to check their bills for phantom charges from more than 20 companies with links to embattled financier Tim Durham.

The request follows a Tuesday FBI raid on Minnesota-based Alternate Billing Corp., which adds charges to customer phone bills on behalf of the companies, purportedly with permission from consumers.

The companies are suspected of cramming, which happens when firms add extra charges to a person's phone bill without authorization. The charges are generally small and easy to overlook since they appear to be one of several fees actually related to the phone service.

Durham has direct ties to several of the companies the FBI names, records show. Among them: eProtectID, Streaming Flix, Durham Technology, MyIProducts, and NeedTheInfo. Most list their home base as the former Chase Tower headquarters of Obsidian Enterprises, a Durham-led buyout firm.

Other companies the FBI names have indirect ties to Durham, as does Alternate Billing, whose president, Cynthia Landeen, received a $284,000 loan from Akron, Ohio-based Fair Finance Co., a Durham-owned firm that collapsed last year.

Records show Fair Finance also made a loan of $365,000 to ABC Corp., a name Alternate Billing has used to describe itself.

Another company involved in the billing is VolCoff LLC, which has ties to Neil Lucas, an Indianapolis attorney who has represented Durham on numerous matters and received at least $145,000 in loans from Fair Finance.

The Durham-led National Lampoon Inc. also is listed as a client of Alternate Billing on the company's website.

Another firm named by the FBI—MyIProducts—listed Durham as its registered agent with the Indiana Secretary of State until June, when it switched the listing to Indianapolis attorney Thomas Collignon.
Schouten's story notes the registered agent for MyIProducts was switched from Durham to Thomas Collignon. He is an Indianapolis attorney who was formerly Marion Co. Prosecutor Carl Brizzi's law partner before Brizzi became prosecutor. Brizzi is, of course, very close to Durham and had agreed to serve on Fair Finance's board of directors a short time before the IBJ's Greg Andrews ran an investigative story questioning the number of insider loans Fair Finance had made to Durham-owned companies. Brizzi resigned from the board after Andrews' investigative report was published by the IBJ. A short time later, the FBI raided Fair Finance's offices in Ohio and Durham's offices for his Obsidian Enterprises on the top floor of the Chase Tower in downtown Indianapolis. Fair Finance's doors never reopened following the FBI raid and the company was forced into involuntary bankruptcy. No criminal charges have been brought to date as the bankruptcy trustee has set about the tedious task of marshaling assets in an effort to recover as much of the more than $200 million small Ohio investors lost in Fair Finance after the company failed to redeem certificates of investment they purchased from the company that offered high rates of interest.

UPDATE II: WISH-TV's David Barras has more on how a lawsuit to be filed in Ohio next week by the bankruptcy trustee will name a lot of people and businesses that benefited from the Ponzi scheme Durham operated through Fair Finance. The bankruptcy trustee emphasizes the matters in the lawsuit are strictly a civl matter, but they have been shared with federal investigators attempting to unravel what Tim Durham himself has described as "complicated."

It may be only a week or two now, until a lawsuit is filed in an Ohio court that will give details, background and name names in the Timothy Durham Fair Finance bankruptcy case, 24-Hour News 8 has learned.

Kelly Burgan, the attorney for the trustee handling the Fair Finance bankruptcy told 24-Hour News 8 anchor David Barras, that the filing will make public what has been found in the nearly year-long investigation.

“I want to say in the vicinity of 100 — give or take — entities that were owned or controlled by Timothy Durham and many of those entities received money directly or indirectly from Fair Finance company," Burgan said.

Fair Finance is the Akron, Ohio company that Indianapolis businessman Tim Durham is believed to have used to finance his businesses and a lavish personal lifestyle. More than 5,000 investors lost $218 million in Fair Finance investments. The bankruptcy trustee is trying to get that money back.

Burgan told 24-Hour News 8 that the lawsuit will lay out the story of what happened at Fair Finance.

"I think the public will be able to get a sense of what we now know and a sense of what occurred and why we are making the allegations that would be made," she said.

The expected lawsuit is civil and has nothing to do with the criminal investigation. But Burgan said the trustee's office is sharing information it uncovers with federal and state authorities.

Durham hasn’t been charged in the case.

Wednesday, December 15, 2010

Ciesielski and Straub Really Have Egg On Their Faces

I just got through listening to Darryl Pierce, Ron Hicks and John Conley walk the Law Enforcement Study Commission through the events of that fateful day when K-9 Officer David Bisard crashed his police cruiser into a group of motorcyclists, killing one and seriously injuring two others. These three men could not have done a better job of explaining the events from a factual standpoint for the first time. Their testimony totally discredits the report Public Safety Director Frank Straub and IMPD Chief Paul Ciesielski issued to support their demotion of the three officers and other actions taken in the wake of the incident. It is so patently clear Straub and Ciesielski set out to scapegoat these three officers, as well as three other IMPD officers who were mistakenly demoted in the rush to judgment to lay blame before the two admitted the errors of their ways and reinstated them to their former positions. Councilor Angela Mansfield hit the nail on the head when she made the point the issue here was the failing of a single officer, David Bisard. What transpired in the aftermath of that single officer's failing was a firing squad response by Straub and Ciesielski to satisfy public outrage upon learning Bisard was found to be seriously intoxicated as a result of a blood draw taken while he was being treated at Methodist Occupational Clinic for the minor injuries he sustained.

What the testimony of Hicks and Pierce made abundantly clear was Ciesielski had one primary concern on that fateful day: What needed to be done to help restore the perception of no confidence in Straub by IMPD leadership and the rank-and-file? These three high-ranking officers received the same urgent page Ciesielski received about the Bisard crash. These three men saw it is a high priority to immediately stop what they were doing and go to the scene to assess the situation. They didn't arrive until nearly 45 minutes after the crash occurred. The victims had already been transported to the hospital and the scene had become a recovery scene, not an emergency response scene. Their careful recitation of the facts revealed absolutely no violation of department policy or procedure as to how that fatal accident scene was handled. It is true they didn't observe Bisard to be drunk, but neither did any of the other police on the scene, emergency workers, or even the doctor who treated Bisard at the clinic. Despite multiple communications to Ciesielski about the Bisard crash scene, the Chief had exhibited no interest in learning more; he only wanted to make sure Hicks and Pierce returned in time for their 1:00 meeting to discuss the Straub image problem. Even after they arrived at his office and mentioned the seriousness of the situation, he asked no questions about the incident. Again, he was totally focused on restoring Straub's public image.

The three officers' testimony highlighted the fact that there were 4 separate reports upon which the Bisard report released by IMPD to the public was based. To this date, IMPD has refused to release any of those separate reports, which the three men contend would support their testimony about their response upon arriving at the Bisard accident scene, remaining there for about 30 minutes and then returning to IMPD headquarters because Ciesielski insisted upon them not being late for the meeting he had scheduled before learning about the Bisard crash. If you step back and look at how Ciesielski and Straub scapegoated these three men and attempted to scapegoat three other officers, you can understand why there is absolutely no confidence in either of the men's leadership among the rank-and-file officers.

Tuesday, December 14, 2010

Leerkamp's Plea Bargaining With Ex-Carmel Basketball Players Angers Victim's Family

Hamilton Co. Prosecutor Sonia Leerkamp strikes again with yet another controversial plea bargain deal in the case of four former Carmel High School senior basketball players allegedly sexually assaulting a freshman teammate by forcibly penetrating his anus through his shorts with their fingers on multiple occasions. Leerkamp recently allowed Scott Laskowski, who was 19 at the time he allegedly assaulted the freshman member of the team, plead to a misdemeanor charge of criminal assault. Leerkamp dropped other charges against Laskowski, who was eligible under the plea agreement for diversion. Today comes news Leerkamp has allowed another one of the former basketball players charged in the incidents, Oscar Falodun, to plead to a similar single charge as with Laskowski. This plea deal has particularly angered the victim's family because Falodun is pleading to assaulting another victim who chose not to pursue criminal charges against the alleged perps. "This jurisdiction has successfully used legal speak to dismiss my son and his experience," the teen's father said. "This is not about the truth anymore. It's about maintaining the pristine image of Carmel." The victim's attorney, Rober Turner, lashed out at Leerkamp according to WRTV. "I don't know what she is, but she's not a prosecutor," he said. "She's actually an insult to the criminal justice system."

I've reported before how Leerkamp similarly swept under the rug a serious sexual assault committed against a member of the Carmel High School swim team several years ago. In that case, Leerkamp suggested the swimmer, who she said suffered from a learning disability, was often picked on by his fellow teammates but she didn't believe he had actually been sexually assaulted. In the case involving the basketball players, a CPS report prepared by state child welfare investigators found the victim had been sexually assaulted by his fellow teammates but Leerkamp just saw it as simple horseplay that got out of control.

I ran across a case of a Fresno high school wrestler being criminally charged for performing a commonly-used wrestling maneuver on a fellow wrestling team member during practice known as a butt drag. The victim claimed his teammate anally penetrated him while performing the move. The 17-year-old Preston Hill was charged with sexual assault. The butt drag is a legal move, but coaches say they don't actually instruct wrestlers to penetrate the opponent during the maneuver, although that seems to be the common result in many instances. Below is a video of this story, as well as a YouTube clip which shows the maneaver being utilized during wrestling matches in a humorous fashion. The Carmel basketball players are lucky they have a lenient prosecutor like Leerkamp who just doesn't see the obvious.

Springfield Mayor Dead From Self-Inflicted Gunshot Wound

The mayor of my former hometown of Springfield, Illinois, Tim Davlin, was found dead this morning in his home. The Springfield Journal-Register is reporting Davlin died from an apparent self-inflicted gunshot wound. Davlin missed an ordered court appearance this morning where he was to answer for his failure to account for his financial handling of his cousin's probate estate over which he had served as the administrator. A judge ordered him removed after he failed to appear in court this morning. Eyebrows were raised in late October of this year when the IRS placed a tax lien of nearly $90,000 on his Springfield home for unpaid income taxes owed over a 3-year period. Davlin told reporters at the time the disputed taxes involved investments he had cashed in years earlier to purchase the home in which he currently resides so he would have no mortgage. Davlin, a Democrat, has in the past boasted of his friendship with President Barack Obama. “I was stunned and saddened by the news of Mayor Tim Davlin’s passing,” U.S. Senator Dick Durbin, also a Springfield recent, said upon learning of Davlin's death. “His work with my office always reflected his dedication to our hometown. My thoughts and prayers are with his family and friends at this tragic moment.”

UPDATE: An Illinois State Police spokesman delivered what has to be the most confounding press conference a group of reporters ever attended. Despite early media reports indicating Davlin died from an apparent self-inflicted gunshot wound, the police spokesman would not confirm that. He wouldn't confirm the Mayor had suffered a gunshot wound. He wouldn't confirm a gun was found at the scene. He wouldn't confirm who made the 911 call to Springfield Police early this morning, suggesting police didn't know who made the call or from what phone the call was placed. He wouldn't confirm the substance of what was communicated in the 911 call. The police spokesman confirmed Sangamon Co. Coroner Susan Boone, who has come under fire for her office's recent handling of death investigations, will be in charge of an autopsy to be conducted tomorrow. The spokesman refused to comment on whether state police were confident in her ability to handle a death investigation. Instead, he said state police would be present to observe the autopsy. State police investigators recently suggested Boone’s record-keeping is so slipshod it may constitute a felony. See video of the Illinois State Police presser this afternoon below. Reporters were perplexed by the fact city hall contacts had freely mentioned to them Davlin had died of an apparent self-inflicted gunshot wound, but the state police spokesman could not confirm anything supporting their statements. Springfield police initially responded to the 911 call but immediately notified the state police to take over the investigation when they learned the victim was Mayor Davlin. The spokesman indicated state police investigators were canvassing Davlin's neighborhood to learn any additional evidence that might be gathered for purposes of their investigation into the cause of Davlin's death.

UPDATE: Sangamon Co. Coroner says the cause of death is apparent self-inflicted gunshot wound to the chest.

Are TIFs Now Being Used To Finance Nursing Homes?

A number of us have questioned a decision by Mayor Greg Ballard's administration to pledge TIF revenues from a downtown TIF district to finance construction of a hotel and mixed used development on the southern edge of the downtown known as North of South. Pat Andrews did a great job summarizing the financing for that deal:

Briefly, the deal is this: the City will float a bond up to $98 million, loan the No-So developer up to $86 million, pay the first three years of interest only payments from the proceeds of the bond, put in $9 million of infrastructure, pay Eli Lilly $14 million from an old loan on the Harding Street TIF (which Lilly will give to the developer), turn over its $5 million in proceeds from the area being designated a 'Certified Technology Park' to the developer, and help the developer pay the loan back by applying 100% of all property taxes collected in the area for 10 years. This is the project that was rejected by all financial institution(s) approached by the developer. The City would get a first mortgage on the development, but Eli Lilly would retain ownership of the land - so if there is a default by the developer, the City would become owner of partially completed buildings and have to pay the bonds off from property taxes collected elsewhere in the consolidated downtown TIF.

It looks like the use of TIFs is the newest thing for obtaining creative financing of development projects for political insiders. Some people up in Marion are raising serious concerns about a plan there to finance the construction of a new nursing home that is being built by MainStreet Capital, a business owned by State Rep. Eric Turner's son, Zeke Turner. Eric Walts, whose family operated nursing homes for 25 years, is one of the residents raising concerns about a plan to float a $13 million bond issue utilizing a Marion TIF district as a loan guarantor for a new nursing home planned by the Turners. Walts explained in a letter to the editor of the Chronicle Tribune this past week what the deal means to taxpayers:

Do you remember the story of the Emperor who had no clothes? In this children’s tale, everyone knew the emperor looked ridiculous wearing next to nothing, yet those in the royal court were afraid to speak up for fear of hurting the Emperor’s feelings. I guess I am in the unfortunate position of the child in the story who exposed the follies of the royal court and Emperor, or in this case the very dangerous shift in economic development policy that Marion city officials are pursuing.

Although the allure of a new $13 million investment may appear beneficial, taxpayers of Marion be forewarned, you are officially on the hook if the Emily Flinn Nursing Home built by MainStreet Capital defaults. The city of Marion is going to enter into a complicated financial transaction that will result in millions of dollars of taxpayer liability if this project were to fail and the developer or operator or one of their subsidiaries were to default on their TIF debt obligation. This is a very dangerous shift in economic development strategy that should be avoided at all costs.

The city of Marion, specifically the Marion Redevelopment Commission, is going to loan Main Street Capital millions of dollars without ever analyzing whether or not Main Street Capital can repay the debt. Unlike Walmart, Dollar General or General Motors, MainStreet Capital has never had to publicly disclose a balance sheet or provide any other financial data that could be independently scrutinized. How do we know if this company can repay the debt, or their parent company, or one of their subsidiaries?

So here are some facts about this deal:

1. The proposed Flinn Nursing Home is a speculative entrepreneurial venture, and unfortunately in this country, more than half of all new businesses fail.

2. There have been no independent market studies analyzing the need for a new nursing home in the Grant County market.

3. The city council is on the verge of approving Taxable Increment Financing that will require the taxpayers to repay the TIF bonds if the project fails and the Mainstreet developer or his subsidiaries default or fail bankruptcy.

4. There is no personal guarantee or surety bond being required of any of the individual partners of MainStreet Capital to guarantee the TIF bonds. There is not sufficient collateral required to be put up by the developer if, in the worst case scenario, this deal goes bad.

5. If the project fails and the business is sold by the bank at a value for less than the original construction cost, we the taxpayers could be on the hook to fund the outstanding TIF bond liability.

Are you, the taxpayer, prepared to start guaranteeing the debt of private developers? Do you want your payroll and local income taxes used to fund failed businesses? That is what the city administration and council are asking the taxpayers to do. They want to use your hard-earned money that is deducted from your paychecks to guarantee the debt of a private businesses. If you were ever upset at a tax abatement, then you should be outraged that your taxes are being used to guarantee this development.

I for one am willing to stand up and exercise my constitutional rights to say “No!” The City of Marion should not be able to use my taxes or your taxes to pay for the failed mistakes of private businesses. Our taxes should pay for government services such as schools, and fire protection, for police, libraries and roads. Our taxes should not be used to guarantee any private business owner’s debt, whether that business is a nursing home, a manufacturer, a distributor, a retailer or any other business.

I encourage you to contact your city council person and urge them not to support this TIF transaction or any other that uses taxpayer dollars to guarantee the debt of a private developer.

Eric Walts owns and operates Suite Living, 1256 N. 400W, Marion.
I have to wonder if the same attorneys advising the City of Indianapolis on the North of South deal are providing advice to the folks up in Marion after reading Walts' explanation of what is being proposed there. I've generally not seen economic development leaders tout nursing homes as an economic development project until this project. This is not the first taxpayer-funded project involving Rep. Turner and his son that has drawn criticism. The Fort Wayne Journal-Gazette had a story earlier this year questioning Rep. Turner's role in landing a building lease for a call center operated by ACS in Marion on behalf of FSSA as part of the Daniels' administration's controversial privatization of welfare services.

Monday, December 13, 2010

Gary Conner Finds How Far Loyalty Goes With Greg Ballard

In an e-mail message announcing his candidacy for the Marion County Republican Party Chairman's position being vacated by Tom John, Gary Conner mentioned his work on behalf of Greg Ballard's uphill battle in 2007. "When Greg Ballard won election in 2007, he thanked his family, his campaign staff and then he thanked me, Gary Conner," he wrote. Greg Ballard said, "Without Gary, this doesn't happen." That was then and this is now. As Ballard has done to so many of the people who worked their butts off to elect him when Tom John, the Marion County Republican Party and other state and local Republican leaders did everything humanly possible to disparage his candidacy against Mayor Bart Peterson, Ballard kicked Gary Conner to the curb. Although Ballard had hinted to people his desire to find someone else to run the county party after his upset win over Peterson, he ultimately backed John for re-election. John had humiliated himself a short time earlier by filing to run in the wrong precinct for precinct committeeperson and wound up losing to someone else. John had to appoint himself to a vacant PC spot.

Conner learned today through a phone call from Ballard's campaign manager that Mayor Ballard would be endorsing Conner's opponent for county chairman, Kyle Walker, at tomorrow night's caucus election. Ballard couldn't even pick up the phone and tell his friend he wouldn't be backing him for county chairman. When Ballard ran for mayor in 2007, Walker worked as the executive director at the county party headquarters. Anyone who worked in Ballard's campaign will tell you Walker's boss and the county party staff provided little assistance to Ballard's campaign and discouraged would-be contributors from donating to his campaign. Once the election was over, Ballard betrayed the people who put him in office and turned to the very people who had worked against his campaign to assemble his new administration. Walker landed a new job at the City's Department of Public Works,  a position he utilized to schmooze city contractors. Walker parlayed his city job into a job as a government affairs representative for an engineering firm with city contracts, a job that allowed him to open his own political consulting business. Walker managed Mark Massa's failed candidacy for county prosecutor. Walker used his ties to the pay-to-play crowd to raise most of Massa's campaign money. Conner isn't a card-carrying member of the pay-to-play club. He never stood a chance of winning Ballard's support for that reason alone. So much for the end of country club politics, Greg. Conner is plowing ahead with his campaign for county chairman and is promising some surprises to the committeepersons during his speech.

UPDATE: Party leaders are warning that any appointed PC who supports Gary Conner in the chairman's race will be removed from their position if Walker succeeds in being elected as party chairman. These people would have loved the Soviet Union.

UPDATE: Star political columnist Matt Tully posted this item on Twitter: "Kyle Walker expected to win county GOP chair tonight. Challenger Gary Conner called to say his anti-Ballard speech will 'rock his campaign.'"

UPDATE: Gary Connor gave a valiant speech tonight in the face of the kangaroo court he faced at tonight's caucus vote with 80% of the 250 voting committeepersons populated with appointed PCs, most of whom have government jobs or work for government contractors. Connor, who was nominated by 2006 unsuccessful sheriff candidate Steve Davis, politely reminded the caucus of the party's miserable showing  in elections since 2007, particularly the drubbing the party took in this year's big Republican wave election. Connor told the PCs he only ran because he frankly thought someone else would step forward and challenge Walker, who has been part of the losing leadership team calling the shots at the county party. I learned Kyle Walker, who was introduced by Sen. Jim Merritt, can read. He literally read every word of his speech, which appeared to have been written by someone else. It had all the energy of a lead balloon. Perhaps the most disappointing sight at tonight's caucus was seeing Sen. Scott Schneider sporting a Walker sticker despite the fact that the very PCs who put him in office are one by one being driven from the party by the forces backing Walker. Mayor Greg Ballard gets kudos for the most memorable line of the night when he tells the PCs that high level Democrats are whispering in his ears what a great job he is doing and how they support him. Yeah, we'll see how far that quiet support gets him next year. Dream on, Greg. Dream on. Kyle's victory to night will prove to be a pyrrhic victory at that. It will be my delight to watch Mayor Ballard and his merry men go down to defeat next year. On a final note, Walker plans to take a salary to work as county chairman, unlike recent chairmen who volunteered their time. Why? Because Walker has never done any work for the Republican Party without compensation. Something to think about, folks.

Recount Commission Dismisses White Election Contest Petition

A petition filed by the Indiana Democratic Party challenging the election of Republican Secretary of State winner Charlie White because he misrepresented his primary place of residence for voting purposes so he could continue to hold his seat on the Fishers town council was dismissed late last night by the Indiana Recount Commission by a 2-1 vote along party lines. Outgoing Secretary of State Todd Rokita, who chaired the Commission and will be sworn in as a Member of Congress representing Indiana's 4th District in January, refused to a request to hear the motion to dismiss first on the Recount Commission's agenda when it convened yesterday at 12:00 noon. Instead, he forced the attorney for the Democratic Party, Karen Celestino-Horseman, to cool her heels for nearly 12 hours while the Commission handled a state legislative recount case. Rokita was miffed Democratic attorneys had asked him to recuse himself because his office had prepared a report looking into the allegations White had committed voter fraud, which he later turned over to a special prosecutor investigating whether White broke any laws prior to the November election at which White was elected. Rokita refused to release the report to the public. Democrats questioned Rokita's impartiality because he had endorse White's candidacy and contributed financially to his campaign, in addition to the fact his office had already investigated the case but kept the findings confidential.

In dismissing the challenge, Rokita accused the Democrats of engaging in judicial activism by taking up the Commission's time with their election contest petition and suggested their interpretation that a candidate for secretary of state not only had to be a registered voter but also a "legally" registered voter contrary to the statutory qualification to be a candidate. Republican attorney David Brooks, who represented White, contended the state law only required White to be a registered voter to run for the office. Without conceding White had fraudulently misrepresented his place of residence for voting purposes, Brooks contended White was still a registered voter whether he voted in the proper precinct, the only requirement of him to be a candidate for the office. Brooks also represented the candidate in the Commission's other agenda item concerning an election contest for a state representative race in the Mt. Vernon area where yesterday's Commission hearing was held. Although Rokita had earlier agreed to hear Brooks' motion to dismiss the White election contest as the first agenda item during the previous hearing held a week ago Sunday during a Colts football game, he later changed his mind and scheduled Brooks' motion to dismiss the case as the second item on the Commission's agenda. The Commission agreed at it last hearing Brooks would have to refile his motion due to a legal flaw in it pointed out by the Democratic attorneys.

More Lies From The CIB

Once again, the CIB lied to the City-County Council and the public to extract more of our tax dollars for their budget. CIB President Ann Lathrop, a former city controller, is now saying the CIB is magically running ahead of budget by $12 million despite its claimed urgency earlier this year in having $8 million a year diverted from a downtown TIF district it said was critically necessary to continue funding of the ICVA. Everyone with any common sense knew the real reason for the diversion of property tax revenues to the CIB was to help fund the 3-year, $33.5 million give-away to billionaire Herb Simon and his Indiana Pacers. Now it turns out the CIB's budget this year is running $12 million ahead of where it told the City-County Council it stood when it insisted it needed the $8 million diversion from the downtown TIF district. The IBJ's Scott Olson reports:

The Capital Improvement Board of Marion County is running $12 million ahead of budget, due in large part to higher revenue and fewer expenses than members expected.

Through the first nine months of the year, the most recent budget numbers available, CIB posted $67 million in total revenue—$6.5 million more than budgeted—and trimmed $5.8 million in expenses.

A large chunk of the revenue, $4 million, is part of $8 million CIB received from the city to use toward the $10 million it will provide the Indiana Pacers to help operate Conseco Fieldhouse. Overall, CIB will give the team $30 million over the next three years.

Still, CIB President Ann Lathrop is satisfied with the agency’s financial situation, particularly since it spent most of last year wrestling with a $47 million budget deficit. CIB will meet for the last time this year at 3 p.m. Monday in the Indiana Convention Center board room.

“I think our revenues are trending higher,” she said. “Even if you take out the $4 million, we’re still trending ahead.”
If you back out the $4 million the MDC already transferred to the CIB from a downtown TIF district to fund the ICVA, that still puts the CIB's budget $8 million ahead, which is the exact amount it requested for the ICVA. According to Olson's story, the CIB collected about $1 million more in food and beverage taxes than it budgeted, and it received $1.3 million more than it budgeted from the expanded Professional Sports Development Area, which was part of a combination of tax diversions, tax increases and borrowing the CIB incurred to avert what it claimed was "a going concern problem" just last year. Olson also reports county admissions tax revenues were close to $1 million more than the CIB had anticipated. So the CIB underestimated its revenues by more than $3 million. Does anyone believe that was not intentional?

I don't know how many times the City-County Council will allow the corrupt leadership of the CIB to pull the wool over its eyes to extract more of our tax dollars before it finally says enough is enough. The CIB's total budget for next year, which the council has already approved, is $104.4 million, an 11% increase over this year's budget. Olson says the CIB thinks hotel and food and beverage tax receipts could climb 3% to 6% next year because of the additional business the CIB anticipates from an expanded convention center. The CIB continues to heavily subsidize out-of-town conventioneers in order to lure business to the city. "The downside is that CIB can’t bill a convention for the use of extra help, which shows up in its budget as an $863,878 shortfall through September in labor reimbursements," Olson writes. “There are still extreme price pressures out there to make the city competitive [to host a convention],” Lathrop said. “There’s just a lot of deal-making going on right now.”

Sunday, December 12, 2010

Democrats Blessed To Have Council Candidate Of Pat Andrews' Caliber

Today's "Behind Closed Doors Column" notes the decision this past week of an outstanding leader within the Marion County Alliance of Neighborhood Associations to seek an at-large seat on the city-county council:

Pat Andrews is tired of two-minute time limits when she speaks at City-County Council and committee meetings.

So she's seeking to join the council next year -- and, if she wins election, she would move from being one of the council's most outspoken watchdogs to having a say in its decisions.

Andrews says she will run as a Democrat for one of the 29-member council's four at-large seats. She has joined a crowded field seeking the party's at-large nominations.

Andrews made a point of attending many of the council's budget committee hearings this year in her role as vice president for the Marion County Alliance of Neighborhood Associations, often asking council members probing questions. She also became a vocal critic of decisions including the Capital Improvement Board's $33.5 million financial assistance package for the Indiana Pacers and the funneling of property tax money to the CIB.

To prepare for her run, the Southwestside resident resigned her MCANA position.

Andrews attributed her decision to run to a growing frustration at the council's workings and a realization that "the decisions were being made outside of the room."

"It seems like it's actually very difficult to impact the decisions getting made as a member of the public," Andrews said. "The public needs someone who will be listening before the decisions get solidified."

If you were looking for a candidate who is more familiar with the city-county budgets and how local government operates, you would be hard pressed to find someone more qualified to serve on the council than Andrews. She has devoted countless number of unpaid hours as a leader studying the issues, attending meetings and speaking out at council meetings more than any other community activist. I venture to guess she has spent more time in her volunteer role for MCANA than most of the 29 current members of the city-county council who are paid to serve. Council members of both parties have applauded her nonpartisan contribution to the debate, even if they often ignore her recommendations.

I told a Democratic friend of mine Democratic mayoral candidate Melina Kennedy and the Marion County Democrats would be foolish if they didn't include Andrews on their slate of four at-large candidates. My friend, who also respects Andrews a lot, doubted she would be slated because of the push for diversity among the at-large council candidates, the perception by some Democrats she is a Republican and her lack of participation in enough party events and activities in the past compared to other declared candidates. I guess some people confuse having a depth of knowledge on the issues as being too much of a bad thing in the Democratic Party. Knowledgeable people are more difficult to control. The friend said the Democrats would welcome Andrews running for the open seat in her district, which is currently represented by Bob Cochrum. Of course, that district is so Republican it would be an exercise in futility to run as a Democrat for that seat.

Even if she is not slated, Andrews will have an advantage many other candidates will not have in that her last name begins with the letter "A". In Indiana, people are placed on the ballot in alphabetical order, a rule people like myself whose last name begins with a "W" finds unfair. If there is a crowded field of candidates, being first on the ballot has its advantages. As of today, however, Andrews' name will not appear first. Zach Adamson, an openly gay salon owner, would earn the top spot. He is expected to be slated in keeping with the Democratic Party's diversity effort. Joanne Sanders, the only current Democratic at-large councilor, is seeking re-election and will be re-slated; the other two slots are expected to be awarded to African-American candidates. Some are hoping Vop Osili, the party's candidate for Secretary of State in this past election, will agree to run for one of those two spots. You may recall in 2007 three of the Democratic Party's at-large candidates were African-American.

As an elected Republican precinct committeeperson, I can't help but observe there is so much more interest in general on the Democratic side in the council races. The Republican Party has zero outreach efforts. It has alienated most of the base that made its 2007 municipal election wins possible. While some of the Democratic candidates have been out raising money and reaching out to voters for the past year, the Republicans currently sitting on the council, except for Christine Scales, have been doing their darnedest to piss all over the people who put them in office in 2007. Pity the Republicans. Who will they find to help them in the 2011 election with that strategy? The answer is simple. It will consist of people who have government jobs, people seeking government jobs, people who have contracts or work for employers with government contracts and people who lobby for those with government contracts. In other words, the people who bothered to show up for Ballard's re-election announcement yesterday. I really think those are the only people the party cares about anymore. If you are only a member of the party for ideological reasons, you are despised. You won't be appointed to any board. Your ideas will be ignored. You may as well get lost as far as they are concerned. Favorable demographics allow the Democratic Party in Marion County to have that attitude. The Republican Party has no margin for error but you would never know it based on how the party is governed by its leaders. I guess the Republican Party would rather have the people with ideas on the outside pissing in than on the inside pissing out. That's not a winning strategy in this county. It'a also the reason the Republican Party is condemned to have a very poor caliber of candidates on the ballot in 2011 and be stung badly at the polls.