Bloomington city council includes memory of BearCat purchase in COVID-19 emergency powers for mayor

Cropped art emergency powers Screen Shot 2020-04-23 at 3.03.54 AM

At its Wednesday meeting, Bloomington’s city council approved an ordinance that gives the city’s mayor and controller more flexibility to act in the context of an emergency, like the current COVID-19 pandemic, without following standard procedures or existing laws.

One of the amendments to the ordinance, adopted unanimously by the city council, inserted a mention of the emergency clause already included in a local law enacted by the council in 2018. The 2018 ordinance imposed a requirement that some fund transfers and some expenditures over $100,000 are subject to city council review.

The 2018 legislation was enacted by the council after the administration’s purchase of a $225,000 Lenco BearCat armored vehicle in early 2018 for the police department’s critical incident response team. The purchase generated considerable controversy.

The ordinance approved by the city council on Wednesday night features a mix of permanent and temporary measures.

Among the permanent measures is a change to city code, which addresses how employees are compensated, if they’re ordered by the mayor to stay home. Generally, under the proposed ordinance, such employees are paid, but have to be available for duty if called. They also can’t use the time they’re supposed to be working at home for the city to earn money at a different job.

The possibility of following different compensation rules are triggered under the code only if a statewide or nationwide emergency is declared.

A couple of temporary measures in the ordinance—parts that don’t change city code— are tied specifically to Indiana governor Eric Holcomb’s current declaration of a public health emergency for the state. The temporary character of the ordinance was made clear in the first of three amendments approved by the council on Wednesday.

The amendment, which was sponsored by councilmember Matt Flaherty, inserted the phrases “declared by Governor Holcomb” and “Current Declared Emergency” so that the tie to the current emergency did not rest solely on the distinction between a grammatical choice of definite article (“the”) versus indefinite article (“a”).

A second amendment, also proposed by Flaherty and adopted unanimously by the city council, inserted wording that requires the mayor to make a formal determination that it’s not practicable to follow pertinent laws. The mayor is also required to inform the council about the decision in a timely fashion:

These powers shall be exercised only after a determination by the Mayor or his designee that the regular practices are not practicable due to the Current Declared Emergency and, in that event, the Mayor or his designee, shall inform the Council in writing, of what was done and why it was necessary, within a reasonable period after the action was taken.

The third amendment adopted by the council on Wednesday was co-sponsored by councilmembers Isabel Piedmont-Smith and Kate Rosenbarger. Piedmont-Smith was a sponsor of the 2018 legislation that required city council review of some fund transfers and some expenditures over $100,000. The emergency clause in that ordinance gives as one exception the following:

There is an emergency, as determined by the department head and approved by the controller and mayor, where the failure to transfer or expend funds would cause an underlying transaction not to proceed which, in turn, would cause an immediate danger to the health, safety, and welfare or loss to the city…

Reference to the 2018 ordinance is included in Wednesday night’s amendment as follows.

The temporary waiver or relaxation of authorizations provided for in this ordinance do not replace and shall be read in concert with the Council fiscal oversight provisions set forth in BMC 2.26.200 through BMC 2.26.210. In that regard, the procedures for an emergency expenditure provided under BMC 2.26.200 (d) (Exceptions to Process of Review) are available in the event needed during the Current Declared Emergency.

Rosenbarger said on Wednesday that the amendment was a reminder that the 2018 ordinance exists.

Corporation counsel Philippa Guthrie said there were no objections to any of the amendments to the legislation, which the administration had brought forward towards the start of the month.

The council didn’t treat the legislation as time-sensitive. It was heard at first reading on April 7 and was discussed by the council’s committee of the whole on April 15, which followed a standard legislative timeframe for the council.