Friday, December 21, 2007

Vigo County Judge Rules In Favor Of Bennett

Terre Haute Mayor Kevin Burke's win-at-all costs strategy has finally come to an end after he refused to concede his more than 100-vote loss to Republican Duke Bennett last month. Burke demanded a recount, which resulted in a slightly-larger winning margin for Bennett. And he invoked the federal Hatch Act in an effort to disqualify Bennett. But Vigo Co. Superior Court Judge David Bolk ruled in favor of Bennett today, allowing him to be sworn in as Terre Haute mayor next week.

Burke contended Bennett should be disqualified because the Hamilton Center where Bennett is employed as an operations manager receives some federal funding for its Head Start program. the federal Hatch Act disqualifies certain state and local government employees, as well as nonprofit employees, whose salaries are paid, in part, by federal funds from engaging in political activities. Bolk ruled that Bennett had not wilfully or intentionally violated the Hatch Act, although he concluded that Bennett is subject to the Act. Bolk's ruling seems a little confusing. Bennett's attorney, Jim Bopp, argued Bennett was not subject to the Act because only a de minimus amount of his salary (less than 2%) was paid out of federal funds, and that Bennett did not direct the spending of the federal funds. Bolk also found that an Indiana statute barring persons subject to the Hatch Act from running for public office did not disqualify Bennett from taking office as Terre Haute's mayor.

The Indiana Law Blog has uploaded a copy of Judge Bolk's decision, which you can find here.


Anonymous said...

The judge said that Bennett would've been disqaulified as a candidate due to the Hatch Act, but no one raised that issue during the campaign. The judge went on to say that the Hatch Act also applies to officeholders, but since Bennett will resign his job with the Hamilton Center before taking the oath of office, then he won't be disqualified once he assumes office.

So, he got away with an illegal campaign because nobody raised the issue? Now he can clear up the disqualification before he takes office?

This opinion seems to be in conflict with an Indiana Court of Appeals decision issued in '04 following a Madison County race. In that case a candidate won election to the city council, and then it was discovered he had a felony conviction. The councilman-elect applied to the governor for a pardon, but the court said that a pardon after the election would not eliminate the disqualification.

The statute that disqualifies one from running for or assuming office due to a felony conviction or Hatch Act is one in the same. Seems the law should be applied consistently.

Anonymous said...

A decision like this will have Ed DeLaney putting in some more time after Christmas.

I didn't hear any fat ladies singing on this one.