Bloomington violated state, local law on historic preservation commission appointments
In under two and a half minutes at its Feb. 16 meeting, Bloomington’s city council approved eight appointments to the city’s historic preservation commission (HPC).
Abstaining on the vote were Dave Rollo and Ron Smith, who both said that they’d received such late notice of the proposed appointments that they could not vote.
Rollo put it like this: “I haven’t had adequate time to review these applicants.”
Not getting a mention at the council’s meeting was the fact that seven of the people who were voted on that night had already been serving on the commission, one of them for more than two years—without the approval of the city council.
That’s a violation of state statute and local code.
The HPC has the power to submit maps describing the boundaries of a proposed historic district or conservation district for city council approval. The HPC also has the power to issue certificates of appropriateness for work done on buildings in historic districts.
While the mayor has the authority to make the appointments to the HPC, the state statute and local law are both clear about who has the final say: “All members shall be appointed by the mayor subject to the approval of the common council…”
The vote by councilmembers on Feb. 16 could be analyzed as ratifying retroactively a decision that they were deprived of the chance to make earlier.
In connection with the disputed plan commission appointment, which is currently in front of the Indiana court of appeals, city attorney Mike Rouker has opined on the topic of the validity of an appointed group’s decisions, if one of the members has not been legally appointed.
In April 2021, Rouker wrote: “Indiana courts have long recognized and applied the ‘de facto officer doctrine.’ In its briefest formulation, from the United States Supreme Court, the de facto officer doctrine ‘confers validity upon acts performed by a person acting under the color of official title even though it is later discovered that the legality of that person’s appointment or election to office is deficient.’ Ryder v. United States, 515 U.S. 177, 180 (1995).”
How did the botched appointments come to light?
Even if city councilmembers did not mention the legal violation at their meeting, they were sent a memo on the topic by city council administrator/attorney Stephen Lucas. The email from Lucas, with the memo attached, was timestamped at 4:28 p.m. on Feb. 16, which was just two hours before their meeting started.
Lucas wrote: “In the course of reviewing [HPC] appointments, the Office of the City Clerk found that the approval of these appointments by the Council has been sporadic, at best, over the last several years.” Lucas’s memo provided a sample motion that the council could use to bring the existing mayoral appointments up to legal snuff.
The lack of any conversation by councilmembers about the legal violation, which their vote was designed to cure, meant that the public didn’t have easy access to that information before or during the meeting.
Often when there is “late breaking” additional information just before a meeting, which is relevant for councilmembers and the public, the city council staff will post the material as an information packet “addendum” on the council’s meeting web page. The memo about HPC appointments, sent two hours before the Feb. 16 meeting, was not posted as a packet addendum.
On the Friday (Feb. 11) before the meeting, acting on a tip from a Bloomington resident, The B Square had emailed city attorney Mike Rouker asking for confirmation about the meaning of the legal language “subject to the approval of the common council.” Rouker never responded.
But Lucas’s memo and the city council’s action served as confirmation that the wording of the state law and the local code is not disputed—that is, the city council’s approval of HPC appointments is a legal requirement.
Will the same mistake be repeated in the future?
After the council voted on Wednesday night, Rouker also did not respond to two follow-up questions emailed to him by The B Square:
Question 1: Have any specific measures been put in place to ensure that this kind of mistake does not happen in the future?
Question 2: Does the administration consider it to be the council’s responsibility to object to a mayoral appointee, as opposed to the administration having a duty to put an appointee in front of the council for approval?
After the meeting, The B Square emailed Lucas a question along similar lines:
Strictly from a legal point of view, who has the burden of ensuring that HPC appointees get the approval of the city council before they start serving? The city council or the mayor?
At first Lucas deflected the question: “I think both the Council and the Mayor have an interest in making sure HPC members are properly appointed.”
Pressed by The B Square to describe any measures to ensure that the law on HPC appointments doesn’t get violated in the future, Lucas wrote: “I believe staff in the Mayor’s Office and City Clerk’s Office will likely adjust how they communicate and track these particular appointments to ensure the Mayor’s appointments to the HPC are brought to the Council in the future.“
Lucas added, “It may be something that’s added to the OnBoard program the city uses to track board/commission appointments, but that will take a further conversation with the IT Department.”
Appointees to the HPC are not alerted in their letters of appointment about the fact that their appointments are still pending approval of the city council. That’s based on the letters that were sent most recently to HPC members, which were produced by the city in response to a B Square records request.
Emailed correspondence produced by the city includes a message sent by Lucas on Feb. 14, two days before the city council’s vote, to the city clerk’s office and mayor’s office. Lucas asks that in the future either the mayor’s office or the clerk’s office alert the council office about HPC appointments.
One reply to Lucas’s request came from Bloomington’s director of public engagement, Mary Catherine Carmichael, who asked, “How much notice do you need?”
Lucas responded, “I think it would be ideal to leave enough time for Council to act on the appointment before an appointee attends their first HPC meeting.”
Lucas continued, “In any event, if the Mayor’s Office or Clerk’s Office could make sure we’re copied on any appointment letters that go out, then the Council could consider a motion to approve the appointment as early as the next scheduled Regular Session.”
Under Lucas’s suggested scenario, it’s not clear who would be responsible for subsequent communications to the appointee, if they have received an appointment letter from the mayor, but the council does not approve the mayor’s appointment.
The city recently released a consultant’s report costing $38,900 with several recommendations on improving the organization of all the city’s boards and commissions. The final recommendation was to “assign oversight of the board and commission process to a designated position.”
Non-voting, advisory members: Sturbaum
The phrasing of Lucas’s emailed request to the clerk’s and mayor’s offices alludes to the two kinds of HPC appointments (emphasis added): “Could either the Mayor’s Office or Clerk’s Office let us know which appointees to the HPC need to be considered by the Council?”
Technically, the answer to Lucas’s question is: All of them. What Lucas was getting at is the fact the council does not need an alert about the four appointments to the HPC that are the council’s own to make. The four positions appointed only by the city council are non-voting “advisory” seats. Seats for both kinds of appointments—mayoral with council approval, and council-only appointments—have three-year terms.
At the council’s Feb. 16 meeting, the council also approved an appointment to a non-voting, “advisory” seat on the HPC—for Chris Sturbaum.
Through the end of 2019, Sturbaum was a colleague on the city council for five of the current members. The work of the HPC will not be new to Sturbaum, because he has served as a mayoral appointee to the HPC since the 1980s, according to his resume, which he provided in connection with his application for a re-appointment.
Sturbaum’s resume has a long list of credentials by way of education and training. It includes this: “I have taken old buildings apart and put them back together with my own hands for 42 years.”
Sturbaum was notified in a letter dated Dec. 29, 2021 that the mayor would not be reappointing him to the HPC.
Swapping three for three: Who else?
Also not reappointed to the HPC were Lee Sandweiss, who resigned, and Jeff Goldin.
Replacing the three whose terms came to an end at the end of 2021 were Daniel Schlegel, Marleen Newman and Allison Chopra.
Schlegel is a historian with 15 years of experience working in museums according to his application. Newman has a masters degree from the Harvard Graduate School of Design and is the associate director of Indiana University’s J. Irwin Miller Program in architecture. Chopra is a deputy prosecutor in Lawrence County, who served on the Bloomington city council from 2016 to 2019.
Based on the city’s response to a B Square records request, Chopra did not include a resume with her application materials.
Chopra answered the application question about her interest like this: “I’m interested in making sure our city is preserved as much as possible with a balance of understanding growth and change is necessary in our changing physical and social climate.” Chopra’s statement continues, “Decisions are not easy in this regard, however, I believe I have the critical thinking skills to make informed choices.”
After the city council’s vote on Feb. 16, Chopra announced her appointment to the HPC on her Monroe County circuit judge campaign Facebook page. Chopra is in a four-way Democratic Party primary race, with April Wilson, Emily Salzmann, and Karen Wrenbeck.
The Republican Party primary for that race is uncontested—Carl Lamb is the only candidate on the GOP ballot.
Chopra’s appointment letter was sent on Feb. 4, 2022, which meant that she was the only one of the eight appointees considered on Feb. 16 who did not start serving before the required council approval.
Bloomington’s director of public engagement, Mary Catherine Carmichael, wrote to Chopra describing some expectations: “I tell all of our appointees that we will never tell you how to vote on an issue that comes before the Commission, but as a mayoral appointment we may reach out if there is a topic that is of particular interest to the Mayor and would appreciate the courtesy of hearing his perspective.”
Chopra’s responded: “I’m honored! As a mayoral appointee, I can understand that and will absolutely honor any requests.”
The fact that Chopra was one of the three new HPC members who were swapped in to replace a trio that included Sturbaum will likely remind some readers of an encounter between the two when they both served on the city council.
At a late October meeting in 2019, as the debate focused on whether to extend the meeting, Chopra said she would be leaving at 10 p.m. Sturbaum told her “Well, go home then.” A few moments later, after then-council president Dave Rollo called for order, Chopra extended a one-finger salute towards Sturbaum’s end of the table.
On the March 2 city council meeting agenda, during reports from the mayor’s office, is a review of historic and conservation district guidelines.
