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HomeMy WebLinkAboutD-2015-10 CRC Appointments As AmendedSPONSORS: Councilors Accetturo, Griffiths, Rider Seidensticker, Sharp and Snyder ORDINANCE D- 2015 -10 AS AMENDED AN ORDINANCE OF THE COMMON COUNCIL OF THE CITY OF CARMEL, INDIANA, AMENDING CHAPTER 2, ARTICLE 1 DIVISION II, SECTION 2 -8 (c), ADDING 2 -8 (d) OF THE CARMEL CITY CODE WHEREAS, the City of Camel, Indiana, is authorized by Indiana law to create a five (5) member Redevelopment Commission; and WHEREAS, Indiana Law authorizes the City's executive to appoint three (3) members of the Redevelopment Commission and the City's legislative body to appoint two (2) members of the Redevelopment Commission; and WHEREAS, the appointment of members to the Redevelopment Commission needs to retain the statutory balance between executive branch and legislative branch representation on the Redevelopment Commission; and WHEREAS, the statutorily required representation on the Redevelopment Commission can best be preserved by prohibiting Common Council members to serve as members of the Redevelopment Conuiiission. NOW, THEREFORE, BE 1T ORDAINED by the Common Council of the City of Carmel, Indiana, that: Section 1. The foregoing Recitals are fully incorporated herein by this reference. Section 2. Chapter 2, Article 1, Division 11, Section 2-8(c) of the Carmel City Code shall be and the same is hereby amended to read as follows: "Sec. 2 -8 (c) The Common Council shall appoint two (2) members of the Redevelopment Commission. The Mayor shall appoint three (3) members of the Redevelopment Commission. Notwithstanding the above, no member of the Common Council shall serve as a member of the Redevelopment Commission. Section 3. All prior ordinances or parts thereof inconsistent with any provision of this Ordinance are hereby repealed as of the effective date of this Ordinance. VERSION A 11 /1110 Section 4. The sections, paragraphs, sentences, clauses and phrases of this Ordinance are separable, and if any phrase, clause, sentence, paragraph or section of this Ordinance shall be declared unconstitutional, invalid or unenforceable by the valid judgment or decree of a court of competent jurisdiction, and such unconstitutionality, invalidity or unenforceability shall not affect any of the remaining phrases, clauses, sentences, paragraphs and sections of this Ordinance. Section 5. This Ordinance shall be effective January 1, 2011 after its passage by the Common Council, signature of the Mayor, and such publication as is required by law. PASSED by the Common. Council of the City of Carmel, Indiana, this S day of emh_ 2010, by a vote of 1.0 ayes and v nays. VERSION A 1111/10 (remainder of page intentionally left blank) Presiding Officer Richard L. Sharp, Presid Pro Tempore /11 P �3 N i Ronald. E. Carter ATTEST: Diana L. Cordray, IAMC, C Treasurer h� Presented b me to the Mayor of the City of Carmel, Indiana this3 day of 2010, atIP tis ATTEST: Diana. L. Cordray, IAMC, Clerk- Treasurer Prepared by: V. Accetturo Approved by me, Mayor of the City of Carmel, Indi 2010, at .M. VERSION A 11/1/10 COMMON COUNCIL FOR THE CITY OF CARME Diana L. Cordray Clerk- Treasurer City of Carmel W. Eric Seident cker Lu yder Diana L. Cordray, IAMC C rer Tames B j inard, Mayor 1// �U j 5 VETO OF COUNCIL ORDINANCE D- 201 -10 Towns and cities in Indiana derive their existence and power from the State of Indiana. In other words, the State of Indiana has created our cities and legislates how they shall operate. Indiana Code 36 -7 -14 (the "Redevelopment Act permits cities, towns and counties to create local redevelopment commissions to engage in redevelopment and economic development activities. Pursuant to the Redevelopment Act the City has created the Carmel Redevelopment Commission (hereinafter the "CRC Section 6.1(a) of the Redevelopment Act provides that three of the five members of a municipal redevelopment commission shall be appointed by the municipal executive (in this case, the Mayor), and two shall be appointed by the municipal legislative body (in this case, the Common Council). Section 7(d) of the Redevelopment Act provides that a redevelopment commissioner must be at least eighteen years of age, and must be a resident of the unit that he serves. The Redevelopment Act provides no further restrictions on the qualifications of a redevelopment commissioner. The Ordinance purports to impose an additional, non statutory restriction on qualification, i.e., that a redevelopment commissioner may not be a member of the Common Council. As noted above, the Redevelopment Act contains specific provisions as to who has the power to appoint redevelopment commissioners and their qualifications. Nowhere does the Redevelopment Act grant the legislative body (in this case the Common Council) the authority to impose additional restrictions besides those contained in state law on qualification. In the absence of a specific state law, the Council would need to turn to its general Home Rule powers found in IC 36 -1 -3 (the "Home Rule Act However, Section 6(a) of the Home Rule Act provides that "[i]f there is a constitutional or statutory provision requiring a specific manner for exercising a power, a unit wanting to do so must do so in that manner." The Redevelopment Act provides the specific manner for creating redevelopment commissions, appointing redevelopment commissioners, and qualifying those commissioners. The Indiana General Assembly made it clear in the Redevelopment Act that (1) the Mayor has the unfettered right to appoint three of the five redevelopment commissioners, and (2) the only restrictions on his appointments are that the commissioner must be at least eighteen years of age and must live in the City. The Common Council simply lacks any legal authority for imposing further, non statutory restrictions on the Mayor's appointment rights granted by state law. This conclusion is shown in the analysis and conclusions of the Indiana Court of Appeals in Board of Public Safety v. Benkovich, 388 N.E. 2d 582 (Ind. Ct. App. 1979). In that case, the City of East Chicago adopted an ordinance purporting to place residency requirements on members of the city's fire force in addition to those imposed by state statute. The Benkovich court held that the General Assembly, in acting to impose such residency requirements, had fully occupied the field, leaving no room for local legislation. Benkovich, 388 N.E. 2d at 585. Further, the court held that although the state statute did not contain an express denial of the power of municipalities to act in the area of the employment of firemen, such express denial was not necessary to preempt the City of East Chicago's action. Similarly, in the case at hand the General Assembly has by state statute imposed the qualification requirements for redevelopment commissioners, leaving no room for the Council to impose its own additional requirements. This conclusion is further supported by the fact that the effect of the Ordinance is not only to impose non statutory requirements on redevelopment commissioners, but also to interfere with the Mayor's statutory appointment rights. IC 36- 4- 4 -2(a) plainly states that "[t]he powers of a city are divided between the executive and legislative branches of its government. A power belonging to one (1) branch of a city's government may not be exercised by another branch." (Emphasis added.) The Ordinance appears to be a clear attempt of the Common Council, as a legislative body, to restrict an appointment power expressly granted by state law to the Mayor, as the City's executive, and as such violates the separation of powers mandate set forth in Indiana law. It has been suggested that City of Fort Wayne v. Bentley, 390 N.E. 2d 1096 (Ind. Ct. App. 1979), provides support for the Council's action in this regard. The Bentley case is not on point and is clearly distinguishable and different from the matter at hand. The Bentley case involved a dispute over the respective powers of the City of Fort Wayne's board of public safety and its common council to regulate the employment of the city's firefighters. The city council had adopted an ordinance providing certain employment protections to the firefighters, and the firefighters claimed that the ordinance had not been followed in certain transfer and demotion decisions. The city argued that the ordinance was invalid because it was an intrusion into the administrative powers of the board of public safety to demote and transfer, and thereby violated the doctrine of separation of powers and infringed upon the board's appointment powers. The Court rejected that argument, essentially reasoning that providing employment protections for firefighters could not be equated with having the actual right to appoint those employees. Importantly, in reaching its decision the Court also noted that the governing statute "provides that the common council, by ordinance, shall have the power to regulate the exercise of the Board's power in a number of important ways." Bentley, 390 N.E. 2d at 1099. So, in the Bentley case, the Common Council was given specific statutory authority to regulate the hiring and firing of firefighters. In the case of the redevelopment commission, the Common Council was not given that statutory power. The Redevelopment Act contains no such provisions giving the Council the right to regulate redevelopment commissioners or their appointments. The Ordinance at issue in Carmel is a very clear, direct attempt to limit who the Mayor can appoint to the CRC. It has nothing to do with regulating employment terms or providing protections to employees, as was the case in Bentley. As such Bentley does not provids any meaningful precedent or support for the Council's action in adopting the Ordinance. Public policy supports the conclusion that the Council does not have the authority to restrict who the Mayor may appoint to the CRC beyond what is already provided for in state statute. If councils were permitted to start imposing their own restrictions on who mayors may appoint to boards and commissions, they could effectively eviscerate the state statutes that give mayors the appointment powers in the first place. The General Assembly intended to permit this, nor would a court would enforce it. In addition to the legal reasoning above, I am particularly distressed at the fact that the Common Council is attempting to remove one of my appointments after that individual has performed a decade of volunteer and unpaid work for the citizens of Carmel on the redevelopment panel. The ordinance, as originally written would have allowed Mr. Carter to remain as President of the CRC through the gala opening of the Palladium on January 29, 2011 because the oridnance originally prohibited "appointments" of council members. State law allows an appointed commissioner to hold over for thirty days after the expiration of an appointment if the executive does not immediately make a replacement. However, the ordinance was changed at the last reading to prohibit a member of the Common council from "serving" as a member of the Redevelopment Commission, thus prohibiting Mr. Carter from serving an additional 30 days through the grand opening of the Palladium. VETO OVERRIDE AND ADOPTION by the Common Council of the City of Carmel, Indiana this f .5+ day of Nov ernl3e 2010, by a vote of V, ayes and a nays. COMMON COUNCIL FOR THE CITY OF CARMEL Presiding O, Richard L. Sharp, ATTEST: ATTEST: V. Aceetturo C o Tempore Diana L. Cordray, IAMC, Clerk asurer Diana L. Cordray, IAMC, Clerk Treasurer Kevin Rider W. Eric Seidensticker ECuS E �rr� Ronald E. Carter Luc nyder Presented by me to the Mayor of the City of Carmel, Indiana this day of 2010, at .M. Diana L. Cordray, IAMC, Clerk Treasurer Approved by me, Mayor of the City of Carmel, Indiana, this day of 2010, at .M. James Brainard, Mayor