In a press release issued Thursday, Monroe County Republican Party chair William Ellis announced he has named Doug Horn to the five-member board of Bloomington Transit (BT), the local public transportation corporation.
Horn is a Bloomington businessman and former Monroe County plan commissioner.
It’s not the usual way appointments are made to the BT board, and might be disputed by Bloomington’s city council.
Under state statute, the seat to which Ellis has named Horn is supposed to be appointed by the Bloomington city council.
Who makes the appointment?
The city council has started a process to fill the two seats with expired terms. On Tuesday, the city council’s standing committee on transportation met to settle on a way to review applications for two positions, which terms expired at the end of July. They’ve been listed as vacant on the city’s website since Aug. 1
Public transportation corporation boards of directors have to be partisan-balanced under Indiana state statute. Nancy Obermeyer, a Democrat, and Alex Cartwright, a Republican, have continued to serve since their terms expired on July 31.
Cartwright is given a nod in Thursday’s press release: “We thank incumbent Republican member Alex Cartwright on his years of service to Bloomington.”
The state statute on public transportation corporations says a member of the board of directors can serve “until the director’s successor is appointed and qualified.”
A different statute is the basis for Ellis’s authority to make the appointment.
The state statute relied on by Ellis looks like it was crafted to occupy the whole field regulating partisan boards, with its phrasing: “notwithstanding any other law.”
The statute says if “the appointing authority” does not fill the vacancy, then a board member can serve for only 90 days after the expiration date of the member’s term. For the two seats in question, the appointing authority is the city council. The council appoints three seats and the mayor appoints two.
The statute also says the appointment is to be made by the county chair of the political party of the member whose term has expired. For the Republican Cartwright, that’s Ellis.
Plan commission appointment: Déja vu?
The statute cited by Ellis in Thursday’s press release is the same one he used earlier this year to appoint Republican Andrew Guenther to Bloomington’s plan commission.
In that instance, the city of Bloomington did not agree with Ellis’s application of the law. A lawsuit filed by Guenther and Ellis is now being litigated in the state’s court of appeals, after an initial ruling in the lower court went against Bloomington. For now, it’s Republican Chris Cockerham, mayor John Hamilton’s pick, who is serving in that plan commission seat.
A key difference between the two appointments that have been announced by Ellis, using the same statute, is the political party affiliation of the outgoing member.
In the case of the plan commission appointment, the member that Ellis sought to replace was someone without any party affiliation, Nick Kappas. One of the questions of law in that ongoing litigation is whether the statute defining party affiliation requires some affiliation or other, in order for someone to serve on a partisan-balanced board.
The basic objection Bloomington has to Ellis’s use of the statute to appoint Guenther is that Ellis is not the county chair of Kappas’s political party—because Kappas lacked party affiliation and was in particular not a Republican.
That same objection wouldn’t apply to Ellis’s use of the statute to appoint Horn to the BT board, because Alex Cartwright is a Republican.
Guenther’s BT connection
The statute invoked by Ellis to appoint Guenther to a plan commission seat is the same one Ellis is using to appoint Horn to the BT board.
Guenther’s name came up during Tuesday’s city council standing committee meeting to sort through applicants for the two BT board seats. Guenther is one of eight applicants to the two open board seats.
Committee members decided to exclude Guenther from the interview process, because of the pending litigation over the plan commission seat.
Guenther addressed the city council the following day during public commentary time at the end of the meeting, which concluded around midnight.
In part, Guenther’s remarks made a pitch for his qualifications to serve on the BT board: “As someone who does not drive due to disability, I’m intimately familiar with the workings of our bus system, the challenges facing the same, and the needs of our most vulnerable residents when it comes with public transit.”
Guenther singled out councilmember Isabel Piedmont-Smith, who was the committee member who had suggested that Guenther not be appointed or even interviewed: “I believe that councilor Piedmont-Smith’s attitude and disdain towards myself and anyone else who dares to oppose the city is dangerous to our democratic system.”
Other members of the city council’s standing committee on transportation are Steve Volan, Ron Smith, and Kate Rosenbarger.
Who is Doug Horn?
Thursday’s press release quotes Ellis saying this about Horn: “We are very excited to have the opportunity to appoint another strong, sensible Republican to a role in city government.”
Doug Horn’s name was in the news last year in connection with last year’s District 2 city council race. Guenther contested the District 2 seat, which was won by Democrat Sue Sgambelluri.
Guenther received contributions from the Republican Party totaling more than $30,000. The Republican Party received $30,000 from Horn.
Online Monroe County property records show Horn as owner or co-owner of around 30 parcels.
Bloomington city council meeting minutes from July 1, 2015 show that Doug Horn was, along with some other individuals and organizations, the recipient of one of the awards given by Bloomington’s historic preservation commission that year. The name of the award was “Impossible to Save.” Horn also served on Monroe County’s plan commission in the early 2010s.
BT board term lengths: Potential argument against Ellis’s appointment?
The city of Bloomington appears to treat the five positions on the BT board as having four different term lengths: one 1-year seat, two 2-year seats, one 3-year seat, and one 4-year seat.
Support for that scheme looks like it could be found in the state statute on public transportation corporations. [IC 36-9-4-15]
IC 36-9-4-15 Cities; public transportation corporations; board of directors; membership
Sec. 15.
(a) The board of directors of a public transportation corporation in a city consists of either five (5) or seven (7) directors, as determined by the city legislative body.
(b) If the board of directors consists of five (5) directors, they are:
(1) two (2) directors appointed by the city executive, for terms of one (1) and two (2) years, respectively; and
(2) three (3) directors appointed by the city legislative body, for terms of two (2), three (3), and four (4) years, respectively.
But a different section of the state code raises a question: Are those multiple-length terms intended to set the initial term lengths when a public transportation corporation is first established, but not for subsequent appointments?
Here’s that section:
IC 36-9-4-18 Board of directors; vacancies
Sec. 18.
(a) On the expiration of the term of office of a director of a public transportation corporation, the appointing authority shall appoint a director for a term of four (4) years and until the director’s successor is appointed and qualified.
(b) If a director leaves office before the director’s term has expired, the appointing authority shall appoint a new director to serve the remainder of the term.
One analysis that Bloomington’s city council might try to give is that Obermeyer and Cartwright’s terms have not yet expired, and their seats are not, in fact, vacant.
[Update Nov. 24, 2020 11:15 a.m. According to city council attorney Stephen Lucas, the city’s website “incorrectly lists the initial term lengths for board appointees, rather than the 4-year terms called for by IC 36-9-4-1.” According to Lucas the city’s website will be updated shortly. According to Lucas, the city clerk is now reviewing the history of council appointments to the BT board “to make sure members currently serving on the board are serving terms of the correct length.” Lucas also said the city council is also looking into whether William Ellis has the authority to make the appointment that Ellis has announced.]
Impact of vacancy on vote outcomes
The statute used by Ellis to make the appointment has a maximum 90-day window for service after a term expiration.
Obermeyer and Cartwright’s service at this week’s BT board meeting fell outside the 90-day window that started Aug. 1.
Not all the votes at Tuesday’s meeting were unanimous on the five-member board. The vote to adopt a required Federal Transit Administration safety plan was 3–2. Obermeyer provided a key vote in favor.
Whether that vote was valid might be called into question if it’s eventually determined that Obermeyer and Cartwright were not at the time members of the BT board.
Why the delay in council action?
On Sept. 1, Bloomington’s city council started using a different set of committees to make recommendations to the full council on board and commission appointments.
For several years before that, the city council used specific interview committees, named after the first three letters of the alphabet, to conduct interviews of applicants for boards and commissions.
At its first meeting of the year, on Jan. 8, 2020, the interview committees were appointed as follows:
A: Smith, Sims, Rosenbarger
B: Sgambelluri, Volan, Flaherty
C: Piedmont-Smith, Rollo, Sandberg
Various boards and commissions were assigned to one of the three committees. BT board appointments were assigned to Interview Committee A (Smith, Sims, and Rosenbarger).
The slate of standing committees that the council adopted in February were supposed to inherit the responsibilities of interview committees, based on the subject matter of the standing committees. The transportation committee inherited responsibility for making recommendations on BT board appointments.
But that transition was not immediate. The February resolution did not abolish the interview committees until Sept 1.
A meeting of Committee A, scheduled for Aug. 25, wound up being cancelled.
The adoption of standing committees, pushed by council president Steve Volan, was controversial for the council. The resolution was approved on just a 5–4 vote.
You are doing some of City Legal’s work for them, pointing out their mis-reading of the statutes. Good work!