Amendment filed in lawsuit over Bloomington plan commission seat

An amended complaint filed on Monday, in the already pending lawsuit over a Bloomington city plan commission seat, adds a new legal question to the mix.

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From left to right: Andrew Guenther, who claims that he’s the rightful appointee to the city plan commission seat; Nick Kappas, who served in the seat through 2019; Chris Cockerham who was appointed by the mayor to the seat.

Now the judge in the case is being asked to decide whether the commissioner who previously held the seat met the statutory conditions for appointment.

The plaintiffs—Monroe County Republican Party chair William Ellis and would-be plan commissioner Andrew Guenther—are asking the judge to find that Nick Kappas’s appointment was void ab initio (from the beginning).

They’re not saying that Kappas himself did anything wrong.

It was Kappas who previously served in the seat, from 2016 to the end of 2019. But Bloomington mayor John Hamilton did not reappoint him.

When Hamilton did not appoint anyone to the seat for 90 days, Monroe County Republican Party chair William Ellis announced he had the authority to make the appointment, and chose Andrew Guenther to fill the seat.

Hamilton and the city’s legal team don’t agree with Ellis’s position. So Hamilton appointed Chris Cockerham, who is a Republican like Guenther. At Cockerham’s first meeting as a plan commissioner Guenther asserted his right to the seat. When Cockerham did not yield it, Ellis and Guenther filed the lawsuit.

How does Kappas get drawn into the mix, given that he is making no claim to the current seat?

It’s a matter of political party affiliation. Kappas did not have one, from the time he was appointed through his time of service on the plan commission.

The lack of a party affiliation appears to offer some flexibility for the partisan balancing requirement that plan commissions have to meet. Of the nine members, five are appointed by the mayor. And of the five mayoral appointments, no more than three can be affiliated with the same party. Someone without a party affiliation doesn’t push any party’s numbers higher.

When Kappas served on the plan commission, the remaining four mayoral appointees consisted of three Democrats and one Republican. Kappas’s lack of any party affiliation kept the balance kosher.

But the statute on which Ellis and Guenther are relying for Ellis’s authority to make the appointment requires some kind of party affiliation—for any board like the plan commission, which has a partisan balancing requirement.

At the time Kappas was appointed, the statute said a party affiliation could be established in three ways: by the most recent primary election in which an appointee voted; a claim to a party affiliation; or certification of membership by a county party chair. But Kappas didn’t meet any of those options for establishing party affiliation.

That’s the basis of Ellis and Guenther’s argument that the judge should declare Kappas’s appointment void.

The statute also includes some wording about how an appointment is made, if the mayor does not fill the vacancy. That wording goes like this: “The county chair of the political party of the member whose term has expired shall make the appointment.”

If the judge were to reach the conclusion that Kappas’s appointment was void, then Ellis and Guenther want the judge to apply the wording of the statute to Kappas’s predecessor, Republican Chris Smith, instead of to Kappas.

In the already-filed motion for an outright dismissal of the lawsuit—which Bloomington made based on the initial, unamended complaint—the the city’s legal team point out that Kappas isn’t and wasn’t a Republican.

That means, Ellis is not the “county chair of the political party of the member whose term has expired.” And from that, Bloomington’s legal team concludes that Ellis cannot rely on that statute for authority to appoint someone to the plan commission.

A judge’s declaration that Kappas’s appointment was void from the beginning would, Ellis and Guenther contend, clear the way for consideration of Kappas’s predecessor, Republican Chris Smith. If the wording of the statute were applied to Smith, as “the member whose term as expired,” that would appear to give Ellis the right to make the appointment.

The amendment to the complaint means that Kappas is now named as a defendant. That’s something that “pains [him] deeply,” Guenther told The Square Beacon. He added, “We actually are from the same town, both attended SPEA, and were in the same fraternity. By no means is this anything I wanted to happen.”

Guenther said, “I have the deepest respect and admiration for Nick, and I hope he continues to serve our community in other ways.”

Kappas was appointed in April by the city council to serve on the city’s redevelopment commission (RDC).

Legal counsel for Guenther and Ellis, local attorney Carl Lamb, told The Square Beacon that no negative inference should be drawn about Kappas from the fact that the validity of his plan commission appointment is being challenged as part of the lawsuit.

Lamb knows Kappas because he interned in Lamb’s law office. Lamb calls Kappas a “fine and upstanding individual.”