Wednesday, February 11, 2015

Lake Co. Municipal Employees Take State To Court Over Law Barring Them From Serving On Councils

Seven municipal employees in Lake County who also serve as elected members of city and town councils have filed a federal lawsuit seeking to strike down a new state law that prohibits municipal employees from simultaneously serving as members of the elected fiscal body of those municipal and town governments which employs them according to the Northwest Indiana Gazette. The 2015 municipal election is the first election to which the new law applies, thus making them ineligible to run for re-election this year.

According to the complaint, each of the seven affected council members draw salaries for their part-time jobs as council members ranging from $10,000 to $26,000, in addition to their full-time government jobs, such as firefighter, police officer, public works and water department employees. The plaintiffs claim the state law violated their First Amendment free speech rights and their Fifth Amendment right under the U.S. Constitution because the law allegedly deprives them of a right to earn a living without due process of law, as well as Article I of the Indiana Constitution, which contains the state's enumerated Bill of Rights.

I've always believed that allowing municipal employees to serve on the elected councils violated the separation of powers doctrine embodied in Article 3 of the Indiana Constitution. Article 3 divides the three powers of government between the legislative, executive (including administrative) and judicial departments. No person charged with official duties of one of these departments "shall exercise any of the functions of another, except as in this Constitution expressly provided." Some argue that the separation of powers doctrine only applies to state government, but I differ in that view.

Article 2, Section 9 provides that "no person may hold more than one lucrative office at the same time, except as expressly permitted in this Constitution." Additionally, the so-called Little Hatch Act prohibits some state and local government officials whose salaries are paid in whole or in part with federal funds from engaging in political activities, including running for elective office. If the federal judge hearing the case appropriately applies the law, I expect him to dismiss these greedy government employees' lawsuit by summary judgment.


LamLawIndy said...

Gary, I immediately thought of the dual lucrative office provision.

Gary R. Welsh said...

I find past court and attorney general interpretations of the dual office provision highly contradictory and confusing. They often seem very outcome driven.

Anonymous said...

Different conflict of interest example but the Indiana legislature has no problem with some legislators working for Ivy Tech and then
voting on Ivy Tech related issues.

LamLawIndy said...

I've never understood how working for a state-supported educational institution & being a member of the Gen'l Assembly wasn't a violation of the dual lucrative office provision.

Unknown said...

Throwing up a for sale sign is one thing done by many candidates who have anticipated facing residency challenges before the state election commission or before county election boards to demonstrate a present intent to abandon their residency under IC 3-5-5 to cover themselves in case they are challenged. Unfortunately, because of my case a person's intent to establish or abandon their domicile no longer matters.