In a press release issued in mid-November, GOP Monroe County chair William Ellis announced he had appointed Doug Horn, a Bloomington businessman and former Monroe County plan commissioner, to the five-member, partisan-balanced Bloomington Transit board.
It’s an appointment that is normally supposed to be made by the city council. The mayor makes appointments to two of the seats and the city council makes the other three.
That’s under normal circumstances, when the appointing authority fills a vacancy in a timely way.
On Tuesday night, at a meeting of the city council’s four-member transportation committee, council attorney Stephen Lucas weighed in on the announcement Ellis had made three weeks earlier.
“I don’t see a reason why William Ellis would not have the authority to make that appointment, Lucas told committee members.” Lucas continued, “The state law [Ellis] cites allows for the appointment by the county chair, when the appointing authority does not fill a vacancy. I think that’s the case here.”
For a partisan-balanced board, a party’s county chair can make an appointment for a seat of a member with an expiring term, if that member is affiliated with the same party. Ellis’s appointment replaced Alex Cartwright, who is a Republican.
The state law cited by Ellis to make Horn’s appointment allows for a board member to serve for 90 days past the expiration of a term. But Cartwright’s four-year term expired on July 31. Ellis’s appointment of Horn came after that 90-day window closed.
Lucas also said at Tuesday’s committee meeting that the other vacant seat on the BT board that the committee was looking to fill was not actually vacant.
Nancy Obermeyer’s four-year term does not actually expire until 2021, based on a recent detailed review of records done by city clerk Nicole Bolden, according to Lucas. Obermeyer is a Democrat.
According to Lucas, the city’s website listing boards and commissions had, for Bloomington Transit’s board, inaccurately listed the length of terms, as well as their starting and ending dates.
Lucas said after the creation of the city’s onBoard system, when the information about terms lengths for board and commissions had been loaded, the information about BT board terms lengths was not accurate. BT’s board seats are all supposed to have four-year terms.
The BT board had been described by onBoard as having seats with one-, two-, three-, and four-year terms, which were the initial terms of board members established under the state statute in 1982.
The initial term lengths were established to ensure staggered occurrence of vacancies, even though all subsequent term lengths are supposed to have a uniform four-year length.
The Square Beacon identified in old city council meeting information packets an extensive review of boards and commissions done by then-deputy clerk Sue Wanzer in 2014. Wanzer identified some boards and commissions that had erroneous term end dates, including the BT board.
At the time of Wanzer’s review in 2014, it was recognized that the correct term length for all BT board seats is four years. Wanzer’s work appears to indicate that Obermeyer’s term would have ended on July 31, 2020, and Cartwright’s in July 31, 2021.
Bolden’s different conclusion is based on a review of historical council meeting minutes, confirmed by the letter sent to Cartwright about his most recent appointment, which indicates a term expiring in 2020. Lucas put it this way at Tuesday’s meeting: “The term for Alex Cartwright—both the term he thought he was serving and and the actual correct term for that—did expire in July.”
Disputed plan commission seat
The state law cited by Ellis to make Horn’s appointment is the same one he cited 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 most recent activity in the plan commission lawsuit was a motion filed on Dec. 4 by Guenther and Ellis for an expedited process. They want the court to shorten the deadlines for filings from 30 days to 15 days.
The city council’s transportation committee is chaired by Kate Rosenbarger. Other members are Isabel Piedmont-Smith, Steven Volan and Ron Smith.
At their Tuesday meeting, committee members reacted to council attorney Stephen Lucas’s suggestion that the members of the BT board would appreciate some clarity from the city council about their view of the appointment that Ellis had made, given that it was not the usual process.
Lucas said, “I think the public transportation corporation board would appreciate some clarity from the council on whether this appointment will be recognized or—I don’t want to say ‘accepted,’ because I think it’s within the authority of the county chair.”
Committee members spent several minutes discussing the wording they should use to recommend to the full council that some acknowledgment of Ellis’s action be made.
Committee chair Kate Rosenbarger suggested “acknowledge the appointment” would be suitable wording.
Piedmont-Smith wondered if the minutes of the transportation committee meeting would be sufficient to satisfy the assurance that the BT board was looking for.
The motion that the committee settled on, suggested by Steve Volan, was “…that the transportation committee accept the nomination of Doug Horn to the public transit board by the county Republican chair and acknowledge that the term of Nancy Obermeyer expires July 31, 2021.”
It’s possible that the full council will vote on the recommendation at its special meeting on Wednesday, Dec. 9.
About the wording of the committee’s motion, which got a unanimous vote, Ellis told The Square Beacon, “That’s great that they accept it, because it’s a fact of law.” Ellis added that the wording implies that he had merely suggested Horn and that they had accepted the suggestion, which was not the case.
In any case, Ellis said, he is glad that the city council is recognizing his authority to make the appointment.
Horn’s first meeting as a member of the BT board will be the board’s next regular monthly meeting, which is scheduled for Dec. 15 at 5:30 p.m.