Two people, one seat for Bloomington’s plan commission vacancy: Will a judge decide who sits there?

The city of Bloomington confirmed to The Square Beacon on Thursday afternoon that the mayor, John Hamilton, has appointed commercial real estate broker Chris Cockerham to fill the vacancy on the city’s plan commission. The plan commission is a nine-member group, five of which seats are appointed by the mayor.

The vacancy was created in January, when Nick Kappas was not reappointed.

In a statement sent to The Square Beacon city attorney Mike Rouker said, “[T]he Mayor was pleased to select Chris for service on the commission. We are very excited about this appointment, and we are looking forward to Chris and the rest of the plan commission getting back to the important work they do for our community.”

Reached by The Square Beacon on Thursday, Cockerham said, “I’m ready to serve and happy to serve. Hopefully, it works out.”

Why wouldn’t it work out?

In mid-April, Monroe County Republican chair William Ellis issued a press release saying that he, as GOP chair—not the mayor—had the authority to fill the plan commission vacancy. Ellis’s pick for the spot was Andrew Guenther.

Guenther is current chair of the city’s environmental commission. In 2019, he ran unsuccessfully as a Republican for the District 2 Bloomington city council seat, which was won by Democrat Sue Sgambelluri.

When The Square Beacon reached Ellis on Thursday with the news that the city had picked Cockerham, Ellis said, “The attorney I’ve been consulting with—I’ll have a conversation with him tomorrow. And we’ll have to file an injunction against this.”

Ellis told The Square Beacon that with Cockerham on the commission it was not legally constituted. Any vote the plan commission now takes on a petition in front of it could be challenged by a petitioner, he contends. The next votes of the commission could take place as soon as a scheduled meeting of the plan commission on May 11.

The legal dispute that has arisen is rooted in the fact that the five mayoral appointments to the plan commission are subject to a statutory requirement that no more than three of the five can be affiliated with the same political party. The four mayoral appointments are currently split 3–1 between Democrats and Republicans. So the vacant seat can’t be filled with a Democrat.

The conceptually simpler of two basic questions is: How can Cockerham be appointed to the seat, when he participated in Bloomington’s 2019 Democratic Party primary? Under one possible reading of the state statute, that makes him a Democrat. The city’s short answer is that Cockerham has voted early in the June 2 Republican Party primary election.

The other, more complex question, arose in mid-April when Ellis made his announcement: Who has the authority to fill a vacancy, if the mayor does not make an appointment?

Defining party membership

The voter history file for all Monroe County voters, which was provided to The Square Beacon in July 2019 by the county clerk’s office, shows that Cockerham participated in the 2019 Democratic primary. It’s something he confirmed to The Square Beacon on Thursday.

Cockerham’s participation in the 2019 Democratic Party primary isn’t unusual, even for someone who more generally aligns philosophically with Republican candidates. That’s because it was a year featuring municipal elections, which offer few if any Republican candidates in Bloomington. For any voter who wants to influence their representation on Bloomington’s city council and the mayor’s office, it means a willingness to participate in the Democratic Party’s primary.

Cockerham said in 2019 there were some city council races he was following, and that’s why he voted in the Democratic Party’s primary last year.

In four elections before 2019 Cockerham voted in the Republican Party’s primary. He also voted in the 2011 Democratic Party primary. He told The Square Beacon that in general elections, he votes for the candidates he thinks are best qualified—sometimes Democrats, sometimes Republicans.

Before Mark Kruzan left the mayor’s office at the end of 2015,  he asked if Cockerham would serve on the plan commission as a Republican, Cockerham said.  “I turned it down at the time—I felt like I wanted to do it, but the timing didn’t work. The timing works for me now.”

When it comes to counting up Democrats and Republicans on a commission, how is party affiliation defined? It’s according to the most recent primary in which the appointee voted, or by certification by the party chair.

The current version of the statute reads as follows:

[A]t the time of an appointment, one (1) of the following must apply to the appointee:

(1) The most recent primary election in Indiana in which the appointee voted was a primary election held by the party with which the appointee claims affiliation.
(2) If the appointee has never voted in a primary election in Indiana, the appointee is certified as a member of that party by the party’s county chair for the county in which the appointee resides.

Cockerham told The Square Beacon he was clear with the city about the fact that he’d voted in the 2019 Democratic Party primary. But he’d also told them he’d already mailed in his Republican ballot for the June 2 primary. [The election board is heavily promoting vote-by-mail for the June 2 election, to help reduce chances of spreading the COVID-19 virus.]

Does that early vote in the June 2 primary make Cockerham a Republican for partisan counting purposes? Yes, says city attorney Mike Rouker: “Chris has already submitted a primary ballot for 2020, and he selected a Republican ballot.”  No, says Ellis: “I don’t care if he has requested the ballot. I don’t care if he has turned that ballot in. Election Day is technically not until June 2.”

The other statutory possibility would be for Ellis to certify that Cockerham is a member of the Republican Party. Ellis told The Square Beacon that no one from the city of Bloomington had reached out to him about the appointments since he made his mid-April announcement.

Authority to make appointment

More complex is the question of whether Ellis had the authority to appoint Guenther back in mid-April. It’s normally a mayoral appointment, so why would Ellis think he would, as GOP county chair, have the right to fill the vacancy?

Under Indiana Code IC 36-1-8-10  if the mayor doesn’t make the appointment to fill the vacancy, that job falls to the chair of the political party to which the member with the expired term belongs:

(d) Notwithstanding any other law, if the term of an appointed member of a board expires and the appointing authority does not make an appointment to fill the vacancy, both of the following apply:

(1) The member may continue to serve on the board for only ninety (90) days after the expiration date of the member’s term.
(2) The county chair of the political party of the member whose term has expired shall make the appointment.

If the vacancy were left by a Republican, then a straightforward application of state law would appear to give Ellis the right to make the appointment. That’s because any 90-day deadline for the mayor to make an appointment looks like it had expired by the time Ellis acted.

But the vacancy was not left by a Republican. Nick Kappas was not affiliated with a political party. He ran as an independent in the 2019 District 3 city council race, losing narrowly to Democrat Ron Smith. A more important consideration from a statutory perspective, Kappas had no primary voting record in Indiana.

Still, the statute does not appear to allow for appointments unaffiliated with any party. Appointees have to either have voted in a primary or be certified by a party chair. So if Kappas’s appointment weren’t recognized, some kind of argument might be made that the right to appoint Kappas’s replacement would belong to the chair of the party to which Kappas’s predecessor was affiliated.

Who preceded Kappas? From the city’s website records of appointment start and end dates it’s not possible to say. Three plan commissioners left the commission between 2015 and 2016: Scott Burgins; Chris Smith; and Pat Williams. Their end dates were all before the appointment dates of the three new commissioners: Darryl Neher; Nick Kappas; and Carol Stewart-­Gulyas.

A records request by The Square Beacon to the city of Bloomington for documents showing seat lineage for the plan commission did not turn up any responsive records. Guenther subsequently alerted the The Square Beacon to information, which he discovered is available on the city’s website.

The city’s legal department, which responded to the records request, told The Square Beacon it was not aware of the plan commission’s seat lineage information on the city’s website.

From the city’s website, it’s apparent that Kappas’s predecessor was Chris Smith, who counted as a Republican based on participation in primary elections. In 2003, Smith also ran for the city council’s District 6 seat as a Republican, losing to Democrat Steve Volan by a couple of percentage points. (The tally was 468 to 439 in favor of Volan.)

Ellis said he could trace the history back to the Republican, Chris Smith, but he thinks he can make an argument based just on more recent history. “The seat sat vacant for 90 days for this period. There’s no excuse. I was able to make the appointment in 24 or 48 hours.” Ellis added, “There’s no reason the mayor should take that long to make an appointment for a board like this.”

The city’s legal team didn’t respond to The Square Beacon with specifics of any legal argument, but did confirm they don’t agree with Ellis that the GOP chair had the right to make the appointment in this case.

Rouker’s Thursday statement to The Square Beacon says, “The Monroe County Republican Party did not have the authority to select a replacement for Nick Kappas on the plan commission.”

Ellis said, “I’m not just going puff up my chest and say I’m going to sue, but that’s the next stage.”

Guenther told The Square Beacon he plans to attend the commission’s next meeting as the “legally appointed plan commissioner.” Guenther told The Square Beacon he’d received word that the May 11 meeting is canceled. As of late Thursday, it was still listed on the city’s website calendar. [Updated 2:21 p.m. May 9, 2020: The city’s website calendar now indicates the May 11 plan commission meeting is canceled.]