Thursday, November 22, 2007

Burke Takes Hatch Act Claim To Vigo County Court

The attorney for defeated Terre Haute Mayor Kevin Burke (D), Ed DeLaney, is taking his case alleging the Republican winner, Duke Bennett, violated a federal law prohibiting him from seeking public office to a Vigo County court, not the federal agency which administers the law. The federal Hatch Act prohibits employees of state and local agencies whose salaries are funded in any way with federal funds from engaging in political activities, including running for political office. The U.S. Office of Special Counsel is charged with investigating and prosecuting claims charging a state or local employee with a violation of the Hatch Act. Bennett works as a manager for the Hamilton Center, a nonprofit mental health center, which receives a small amount of federal funds each year to operate a Head Start program.

What is particularly troubling about Burke's legal claim against Bennett, which if successful will have the effect of disqualifying Bennett and making Burke the winner by default, is that his attorney is bypassing the federal complaint process altogether. Instead, DeLaney is asking Vigo County Superior Court Judge David Bolk to disqualify Bennett based upon Burke's state court complaint alleging Bennett violated the Hatch Act. Bennett's attorney rightfully argues the case should be decided by the Office of Special Counsel, but DeLaney asserts his claim under Indiana law. Indiana Code 3-8-1-5(c)(6) states that a “person is disqualified from assuming or being a candidate for an elected office if” the person is subjected to the Hatch Act. Presumably, DeLaney has decided he is more likely to get a favorable determination under the federal law from a state court judge in Vigo County than the federal agency which adjudicates these cases all the time. In fact, DeLaney told the Terre Haute Tribune Star the federal agency would have nothing to do with his client's complaint against Bennett.

Burke's and DeLaney's legal tactics are not sitting well with many in Terre Haute, including some within the Democratic Party. Attorney Mike Ellis, Secretary of the Vigo County Democratic Party, blasted Burke's move in a letter to the Tribune-Star, urging him to "move on." Ellis said Burke did a disservice to the city and the Democratic Party by refusing to accept the will of the city's voters in choosing Bennett over him. Another source quotes former Terre Haute Mayor Jim Jenkins (D) as saying he thinks Burke should concede the election and give up his fight to hold on to the mayor's office.

Burke's upset defeat in this month's municipal election bears some similarities to Bart Peterson's upset loss in Indianapolis. Although Terre Haute has traditionally always been a Democratic stronghold, voters have become increasingly discontent with the corrupt and self-serving ways of some Democratic political leaders in this county. Last year, voters threw out a long-time Democratic prosecutor and elected Republican Terry Modisett to help clean up the corruption in Vigo County. Like Indianapolis mayoral race, Bennett enjoyed significant support from police and firefighters. There have already been cries of retaliation from some city employees over their support of Bennett, and at least one lawsuit has been filed against Burke over the police department's handling of new hires.

A big beef many people had with Burke is his close relationship with wealthy businessman Greg Gibson and the appearance of favoritism by Burke towards Gibson's business matters. There are several examples to which Burke's critics point. When Wal-Mart tried to build a new store on the city's northside, Burke blocked it and pushed Wal-Mart to another parcel on the city's east side on State Road 46, which coincidentally happened to be owned by a company Gibson owned. Historic preservationists were horrified when Burke turned the Terre Haute House, one of the city's most historic landmarks, over to a Gibson company for $1, which proceeded to raze the building and develop a new Hilton Garden Inn hotel on the site with Dora Brothers of Indianapolis. More recently, Gibson lobbied Burke and other political leaders, primarily Sen. Evan Bayh, to convince the federal courts not to shut down the federal courthouse in Terre Haute as originally planned. The General Services Administration just recently announced the awarding of a contract for a new, 14,000 square foot building to be constructed by a company tied to Gibson. The federal government will pay nearly $500,000 in annual rent for the space over at least 10 years, nearly $200,000 more than it pays for the current courthouse space in Terre Haute.

A week before the election, political fliers were mailed to many Terre Haute voters accusing Burke of doling out tax breaks and other favoritism to Gibson's business ventures in consideration for his political support. Bumper stickers appeared on cars this year in Terre Haute with the message, "Burke Is Gibson's Bitch." Responding to the charges, Gibson told the Tribune-Star, “Oh, I feel like I’ve been sucker-punched in the guts." "I don’t see myself as a public figure, and I think it’s rotten, below the belt." "And it’s all lies." "I don’t sit around wringing my hands about it. I probably feel worse for my family than I do for myself." In that same interview, he referred to the historic Terre Haute House he razed as "an anchor around the community's neck." He said, "I was never of the opinion that we should use millions in tax dollars to remodel that old building." "And I might add that most of the [renovation] projects that were presented were using 15 to 20 million dollars in tax money." "Now there were some federal tax credits and things, but that was all tax money." "And I did not believe that the people should spend that kind of money to rehab that hotel." "And I thought it was a bad business deal; I don’t think it could’ve succeeded." He also denied any conspiracies between him and Mayor Burke. "I know there’s all of these conspiracy theories out there, pretty much perpetuated by this group, that there was a deal in place and the mayor was involved, and it’s just absolutely not true."

Gibson is one of Mayor Burke's biggest financial supporter. Some speculate he may be encouraging Burke's election challenge for fear of losing political clout under a new Republican administration. Gibson is no stranger to Ed DeLaney and his politically-active wife, Ann. The Gibson family has contributed a lot of money to Sen. Evan Bayh over the years. Ann DeLaney worked in the Bayh administration as his chief legislative assistant. She left under a cloud after she was accused of offering legislators state jobs in exchange for legislative votes on matters important to the Bayh administration. A criminal investigation ended without any charges being brought against her. Then-Gov. Evan Bayh appointed Gibson to a coveted position on the Indiana Judicial Nominating Commission.

Indianapolis should be watching Burke's Hatch Act claim against Duke Bennett very closely. Indianapolis has several city-county councilors who work for government agencies which receive federal funding, including firefighters Monroe Gray and Vernon Brown, police officers Lincoln Plowman and Benjamin Hunter and Mary Moriarty Adams, who works for the National MS Society, a recipient of federal grant dollars.


Anonymous said...

Do you know of any legislators who might be affected? Does Ivy Tech get any federal funding?

Anonymous said...

Institutions of higher education are exempted from the Little Hatch Act's provisions.

Anonymous said...

Having dealt with a few Hatch Act questions as a federal agency attorney in Indiana a few years back, I still wasn't aware until I read your item this morning that the Act was actually referenced in the Indiana statute. No longer having the online resources I had prior to retirement, I can't say for sure, but it would seem to me that this type of issue, involving as it touches upon state enforcement of a federal statute, would have to have been litigated a number of times in the past. My own experience was the Office of Special Council procedures could be slow, and the discretion not to investigate was fairly conclusive. Is a state judge powerless to enforce/enjoin at least blatantly obvious (which this one doesn't seem to be) instances while the OSC goes through its proceedings? Should this be something that gets removed to federal court? Interesting stuff.

Anonymous said...

This case is awash with T. Haute political intruigue. Enough nonsense for a docu-drama.

Much is uncertain, but this much I know: Ed Delaney is no stooge.

I am aware of the Federal Building stuff, though. The current offices housed there have outgrown the space. The GSA put out RFPs some time ago, and only one company allegedly fit the bill. I am also aware that Sen. Bayh had little or no influence--the GSA is a political office, a fact surely known to all who have watched that agency's former head twist in the wind lately. Seems a high-ranking GSA official was dispatched to management meetings to preach the Bush political line prior to the 06election, and someone bitched.

Evan Bayh has zero--less than zero--influence with this administration in such matters. At the time the RFP was let, he was No. 1 or No. 2 in prsidential camnpaign fund-raising, so the Bushies were loathe to rant him any special considerations. Plus, Repubs controlled the Senate.

Anonymous said...

The case wouldn't be removed to federal court because the federal court doesn't have jurisdiction to interpret 3-8-1-5. Also, the statute doesn't require a determination from a federal agency since it speaks in terms of whether a person's candidacy "would" violate the Hatch Act.

On the other hand, the best method of determining whether activity "would" violate the Hatch act would be to ask the agency charged with enforcing the act to issue a ruling. I'm not sure if there is a way for a county court to certify a question to a federal court - that might deal with the issue.

But I definitely think that this issue should also be investigated wrt Indianapolis city councilors.