By the 2015 city elections, if Deputy Police Chief and City Councilman Marty Bender decides to continue in public service, he will have to choose between his two jobs. A new law will prohibit him from serving as both a city employee and council member.
Allen County Councilman and Downtown Improvement District Director Bill Brown need not make such a choice. Though the DID receives $50,000 from the County Council, $150,000 from the City Council and nearly $300,000 from a special tax assessment on downtown businesses, no law bans him from the dual duties.
In 2011, Fort Wayne Community Schools board member Mark GiaQuinta was appointed to the Indiana Charter School Board. But later, state officials said he could not serve because of the Indiana Constitution’s ban on hold(ing) more than one lucrative office at the same time – despite the fact that the charter board position paid only $30 per meeting. Yet officials had no problem with Jamie Garwood’s service on the board – though she plays a major role with a local charter school that very board authorized.
Such is Indiana’s law on conflicts of interest, holding two government jobs and double dipping by government employees. The state’s legal approach is at best contradictory and confusing, and at worst – at least to a layperson – seemingly haphazard and nonsensical.
Federal, state differences
In 2004, after receiving a position as an attorney within the Social Security Administration’s local office, Margaret Ankenbruck had no choice but to resign her position on the County Council. Similarly, when Maria Parra landed a job with the Census Bureau in 2009, she had to resign as a Wayne Township Advisory Board member. Though the township and county offices they held were only part time, as federal employees they were required to follow the Hatch Act, a 1939 federal law that bans federal administrative employees from participating in partisan politics.
The official name of the law pretty much explains its purpose: An Act to Prevent Pernicious Political Activities. Though it has some exceptions, it generally covers all employees of the executive branch of the federal government – but not the legislative. That’s why state Sen. Carlin Yoder (state pay $63,302, including salary, per diem and expenses) can also serve as district director for U.S. Rep. Marlin Stutzman (federal pay: $58,448) .
But while the Hatch Act is fairly clear for federal employees, Indiana’s law for local government employees is confusing, starting with the state’s constitutional ban, continuing with the convoluted and – to many Hoosiers – non-understandable definition of lucrative office and ending with hit-and-miss state laws.
For example, public school teachers are prohibited from serving on the school boards that govern the districts where they work (good policy), while legislators have conveniently allowed themselves to work for state-financed universities (bad policy). Ivy Tech, in particular, has taken great advantage of this giant loophole by liberally employing state legislators who, conveniently, have been quite generous in awarding tax dollars to the state college.
Think about it. The more money legislators give Ivy Tech, the better Ivy Tech can pay its employees, some of whom are legislators.
But conflict of interest is only one of the reasons the state constitution bans workers from holding more than one lucrative office.
The concerns over fear of corruption in government as well as a fear of too much power and control falling into the hands of too few led the Framers to include the ban on dual offices, Indiana Attorney General Greg Zoeller, then chief counsel to the A.G., wrote in an extensive Indiana Law Review article on the issue in 2004.
The framers were also concerned about the separation of powers among the legislative, executive and judicial branches. If one person serves in two branches, that can undermine the separation.
A helpful Dual Officeholding Guide the Indiana attorney general’s office issues cautions officeholders to consult with an attorney before taking a second government job, noting it can be a felony to hold two lucrative offices.
But just defining office and lucrative can be tortuous. Holding a government job isn’t the same as holding government office, and lucrative in this case doesn’t hold the common definition.
An office is considered lucrative’ when there is attached compensation for services rendered, the guide explains, and does not depend on the amount of compensation affixed to the office.
Per diem payments are considered compensation, even though they are usually intended to cover expenses. That’s why GiaQuinta could not serve on both the local school board and state charter school board.
Generally, a 1911 court opinion explains, a public officeholder in Indiana is someone charged with duties delegated to them under the state government, with duties imposed upon them by statute, and are subject to legislative control.
A long list of court decisions and state laws leaves much up to interpretation, and some of the inconsistencies can be difficult to explain. For example, a 1969 court ruling declares a city clerk-treasurer (the position in smaller cities) a lucrative office, but an 1876 ruling says a city clerk is not. The county highway engineer is lucrative, but a city civil engineer is not. Members of alcohol beverage boards hold lucrative positions, but city Board of Public Works members do not.
Good or bad?
When writing the 1851 constitution, authors debated about the limits on holding two offices, notes GiaQuinta, who has researched the constitutional convention at length and cites scholarly, lengthy examinations of it.
While some delegates expressed concerns about conflicts of interest, separation of powers and the amount of money an officer was paid, others pointed out advantages of hiring knowledgeable government employees. Why not hire someone who is good – even if he or she holds another office? And, GiaQuinta points out, there were a lot fewer people living in the state then to hold office.
Indeed, Brian Yoh – who is both the appointed New Haven director of Planning and Economic Development and the elected Adams Township trustee – cites advantages. I have a lot of years of experience in government, Yoh notes. Government jobs are very, very unique. We like to say government should be run like a business, but the way government operates is a lot different.
There’s a lot of (government) knowledge I bring to the office.
Bill Brown, the county councilman who is director of the government-financed Downtown Improvement District, also cites advantages. Brown, a former county commissioner, brings knowledge of government and knows many of its officials. I think it’s very beneficial for the position, he said. Brown has promised not to vote on measures involving the DID at County Council.
Bender has not yet decided whether he will seek re-election or choose to continue as a police officer.
Bender said he has mixed feelings about the new law. One side of me says I didn’t do anything wrong; why am I being punished?
And while some have questioned his dual role, no one has cited a specific example where Bender has used his council role to favor his police job. He specifically abstains on matters to do with his own salary.
But he also recognizes the potential, for example, of several city employees gaining control of a City Council and does not fault lawmakers for banning the dual roles.
In addition to consolidating power in too few hands and creating conflicts of interest, dual office holding raises another concern: Double dipping.
Government employees including Bender, Carlin and Yoh draw full-time government salaries well above Indiana’s median household income of about $46,400. Should they also depend on the taxpayers to pay their second, part-time jobs, which generally pay more than the full-time minimum wage of $15,080 – and sometimes include pensions in addition to the full-time government pension?
Stutzman is a staunch conservative who frequently decries government spending and government overreach.
Solyndra showed exactly what happens when Washington decides to take care of the well-connected instead of the taxpayer, Stutzman said of the federal subsidy of a failed alternative energy project. Cannot the same thing be said of hiring an old buddy from the state legislature (Carlin Yoder) whose two taxpayer-financed jobs bring in $121,750, along with federal and state pensions? And Yoder doesn’t even live in the congressional district where he serves as director.
To their credit, state lawmakers have addressed some of the conflicts of interest in local government. Years ago, teachers were prohibited from serving on the school boards governing the districts that employs them. And in response to the 2007 Indiana Commission on Local Government report – commonly called the Kernan-Shepard report – lawmakers banned employees of local government from also serving on the councils that oversee the budgets of that government.
So even though police officers and firefighters are not considered to hold lucrative positions, officers such as Bender will no longer be able to both hold that position and serve on City Council after his present council term expires.
To eliminate potential conflict, violations of separation of powers and double dipping, Indiana legislators could pass a simple law: Only one government job per person.
If they won’t go that far, legislators at the very least should recognize that a number of Hoosiers – university officials among them – clearly believe those lawmakers should not be working for institutions they finance with tax dollars. Credit Republican Rep. Bill Davis of Portland for authoring a bill to prohibit the practice, though it is destined to go nowhere. The perception among some Hoosiers is that Ivy Tech owns legislators. It’s appalling.