Friday, July 20, 2007

Council Members Have Personal Stake In Income Tax Vote

Finally, the Star's Brendan O'Shaughnessy points up the conflict of interest several council members face as they prepare to vote on Mayor Bart Peterson's proposed 65% increase in the county option income tax to fund, in part, the salaries of law enforcement officers and firefighters. O'Shaughnessy writes:

Three of seven City-County Council members voting on a 65 percent increase in the county income tax today have a personal interest in passing the measure.

Councilmen Vernon Brown and Lance Langsford, both firefighters, and Councilman Lincoln Plowman, an Indianapolis police officer, would benefit from pay hikes resulting from the additional income.

Mayor Bart Peterson has asked for the tax to be increased to 1.65 percent from 1 percent, raising $90 million, most of which would be used for public safety expenses including contract pay raises for police officers and firefighters.

The measure will be considered by the Administration and Finance Committee.

On Monday the full council, which includes other public safety workers, votes on the measure. Council President Monroe Gray is a firefighter, and Councilwoman Sherron Franklin is a police officer.

Two other council members are married to police officers or retirees, some of whose pensions also depend on the new funding from the income tax.

Brown, a Democrat, said he supports the income tax increase and will not duck the vote based on a potential conflict of interest. As a deputy chief in the Fire Department, he said, his salary is not dependent on the contract.

"We vote on budgets and other measures that affect the police and Fire Department all the time," Brown said. "It's better to vote with a potential conflict than to not represent your constituents."

Brown said council members can't pick and choose when they vote, though some abstain because of a potential conflict.

One of those who has abstained is Plowman, who said he won't vote on issues that affect only his department and hasn't decided whether he will vote on the income tax issue.

"It's a tough decision," Plowman said. "But I've voted in the past against public safety money, and I would have voted against the income tax if we'd voted on it Monday."

The city's corporation counsel, true to form, sees no conflict of interest. He tells O'Shaughnessy:

Kobi Wright, the city's top attorney and the adviser to the city's ethics board, said council members with public safety jobs do not face a conflict of interest in the vote on income taxes or budgets. He said several members have asked, and he has given them his oral opinions on the matter.

If public safety officers couldn't vote on budgets, Wright said, they wouldn't be able to serve on a council whose major role is fiscal responsibility.

"They're not voting on the contract itself, which is negotiated by the (city) administration and the unions," Wright said. "They're only voting on the money to fund it, not to determine the salaries."

Recall that Wright also failed to see any serious problem with City-County Council President Monroe Gray failing to disclose the financial interest his concrete firm had in a city-financed public works project. As to the legality of their service on the council, O'Shaughnessy relies on the biased Indiana Association of Cities and Towns. "Firefighters and police officers have been allowed to run for office since the mid-1980s and regularly seek office, said Julia Bearce, a spokeswoman for the Indiana Association of Cities and Towns." "The only qualification is that they live in the district for at least two years before taking office." O'Shaughnessy does point out that Indiana is in the minority nationally. "But nationally, it is uncommon for police and firefighters to seek office. Illinois recently passed a law allowing police and firefighters to run for office, but it is being challenged in court." "Michigan, Ohio and Kentucky severely limit political activity; firefighters and police cannot serve in office in those states."

As O'Shaughnessy's story notes, firefighters and police officers in Indiana have only been allowed to run for public office since the 1980s. That would be the time the Indiana legislature in its infinite wisdom decided the Indiana Constitution can be ignored. Article 1, Section 3 prohibits a person who is charged with duties under one of the three separate branches of government from exercising any of the functions of another branch. Could someone please do something about this?

Don't forget today's vote by the Administration and Finance Committee today at 5:00 p.m. at the City-County Building on the proposed tax increase. I can't ever recall a government hearing being scheduled at 5:00 p.m. on a Friday, except for the legislature working over-time to wrap up a session. And it falls during the height of Black Expo celebration downtown. Abdul Hakim-Shabazz had his own ideas about the timing of this evening's vote, which I won't repeat for fear of being labeled a racist. Go to this evening's vote, and don't forget to tell Brown, Langsford and Plowman they have a duty to abstain from voting on tonight's tax increase because of their blatant conflict of interest.


Anonymous said...

Don't forget that if the police officers and firefighters have worked in a position or on a project that was funded in any part by federal dollars, they are prohibited from running for partisan office by the Hatch Act provisions for state and local employees.

The OSC's boilerplate language for advisory opinions reads as follows:

" The Hatch Act (5 U.S.C. §§ 1501 - 1508) restricts the political activity of individuals principally employed by state, county, or municipal executive agencies in connection with programs financed in whole or in part by loans or grants made by the United States or a federal agency. An employee covered by the Act may not be a candidate for public office in a partisan election, i.e., an election in which any candidate represents, for example, the Republican or Democratic party. It has long been established that an officer or employee of a state or local agency is subject to the Hatch Act if, as a normal and foreseeable incident of his principal position or job, he performs duties in connection with an activity financed in whole or in part by federal funds. In re Hutchins, 2 P.A.R. 160, 164 (1944), Special Counsel v Gallagher, 44 M.S.P.R. 57 (1990)."

With all of the homeland security dollars, Weed and Seed, community policing grants, public safety grants, and federal traffic safety funds that police and fire agencies receive, I'm sure most of the councilors (and police councilor candidates) have worked on federally-funded projects.

Anonymous said...

I think it is pretty rude of city council to hold this meeting in room 260 which is a small room. Afterall, they know a swarm of angry taxpayers who do not support Peterson's tax and spend strategy are going to show up for another rally.

Hopefully they will do the right thing and open the auditorium for the public. This IS, afterall, the public's business.

Anonymous said...

Start with the 1984 case of Rush v. Carter, 468 N.E.2d 236.

Officer Rush was a Montgomery County Police Officer. He was then elected as a Montgomery County Councilman.

Mary Helen Carter, the Montgomery County Auditor, sued, arguing that under the Indiana Constitution, Rush couldn’t be a cop and a councilman at the same time.

Officer Rush argued that by law, cops were just employees of the county, so he could hold a councilman office the same as any other working stiff.

The court of appeals disagreed with Rush.

The court said that the Indiana Constitution divided government into three distinct branches. No branch of government was allowed to exercise the power of another branch.

The court of appeals reasoned that county government was just a division of state government, so county cops were bound by the Indiana Constitution.

The court of appeals said: “The obvious constitutional frailty under the facts of this case is that Rush as a county council member (a member of the legislative branch) would have, in some degree, fiscal control over, Rush the county policeman (a member of the executive branch) as well as the rest of the county police department.”

Fast forward to the 1993 case of Gaskin v. Bier, 622 N.E.2d 524.

Elvis Gaskin was Deputy Town Marshal of Edinburgh, Indiana. He was also elected to the town Board of Trustees, where he voted on police matters such as town budgets, including the budget for the Town Marshal.

Deputy Gaskin, wearing his Board of Trustees hat, then cast a vote that screwed his boss, Town Marshal Ron Beier, out of the job of Chief of Police.

Marshal Beir sued Deputy Gaskin.

Marshal Bier argued that it was unconstitutional for Deputy Gaskin to be a cop and an elected official, and that the state law which let cops hold elected offices was unconstitutional.

The court of appeals said No--Deputy Gaskin is just an employee of the town. As an employee, he can hold elected office like any other working stiff.

And by the way, said the court, The Indiana Constitution on lucrative offices only applies to the state, not to local government. All that stuff we said in the case of Rush v. Carter? We were wrong. It’s up to the legislature to say otherwise.

The judges in the Gaskin case included a guy who is now on our Supreme Court, Justice Rucker.

If you want to read the court of appeals’ latest case on this matter, look at Thompson v. Hays at

Gary R. Welsh said...

anon, 8:47, I mentioned some of that case law in an earlier posting on the subject. It just seems to me there was one understanding of what that provision in the constitution meant for over 100 years and then a couple of the more recent court decisions started splitting hairs and interpreting it differently. The wording of the constitution hasn't changed; only its interpretation.

Anonymous said...

Regardless what the Constitution or legal rulings say, what happened to an ages-old maxim, which should be applied to this and similar cases:

"Is it the right thing to do?"

Of course, the answer is a resounding "no."

The very fact that we have to rush to court, or to past rulings, is indicative of the depth of the problem. If a city employee wants to run for the council, so be it. But they'd best recuse on every single matter which involves their department, directly or indirectly.

Which would screw their constituents out of some decent representation a lot of the time. Ergo, why do it at all?

No one will say it aloud, but the biggest contributor to this problem is an Entitlement Attitude. There are some in the Dem party leadership, who think they're entitled to abuse the spirit, if not the letter, of the law. Because they toiled for so long in the minority. And now they're the majority.

Tenure alone does not entitle anyone to anything.

Until we lose this attitude, the problem will get worse. Because it's like a cancer--unchecked, it grows, and what was absurd yesterday, unchecked, becomes normal tomorrow.

Do you need specific examples of that in this county?

Anonymous said...

Don't you think it would be hypocritical if Brown, Franklin and Plowman abstained from tonight's vote on the basis of conflict of interest as this has not stopped them from sitting on the public safety committee and voting for all kinds of things impacting their jobs?

If they abstain on the grounds of conflict of interest then someone had better be prepared to call them out for serving on the public safety committee.

Anonymous said...

12:29, however late they reach the conclusion they're inappropriately serving on the council, their conversions would be welcome.

Better late than never.

If their internal bullshit barometers cannot help them determine right from wrong, we need to nudge them a little.

Anonymous said...

"If they abstain on the grounds of conflict of interest then someone had better be prepared to call them out for serving on the public safety committee."

They shouldn't be on the council in the first place.

garyj said...

You forgot Ike Randolph and Monroe Gray will also be voting on this issue. There are more that 7 CC members who have an "outside interest" in this proposal.