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The Journal Gazette

Wednesday, November 22, 2017 1:00 am

Contract ban for donors advances

Meant to prevent look of 'pay to play'

DAVE GONG | The Journal Gazette

In a 6-3 preliminary vote Tuesday, the Fort Wayne City Council approved an ordinance that would prohibit companies from bidding on public contracts if they donate more than $2,000 in a calendar year to an elected city official's campaign.

The bill was sponsored by City Councilmen Jason Arp, R-4th, and John Crawford, R-at large, who argued the measure was necessary to curb the appearance of impropriety generated when major campaign donors are awarded municipal contracts.

The two industries most affected by the ordinance are law and engineering firms, Arp said.

Companies, as well as any employee who owns more than 7.5 percent of a company, would be limited to an aggregate total of $2,000 per calendar year or $8,000 per four-year election cycle. That also applies to employee spouses or children who are living in the same household as the employee or company owner.

The bill's sponsors acknowledged that there is no proof that campaign contributions have led to the improper awarding of contracts.

Arp and Crawford were joined by Councilmen Paul Ensley, R-1st, Russ Jehl, R-2nd, Tom Didier, R-3rd, and Tom Freistroffer, R-at large, in supporting the proposal. Councilmen Geoff Paddock, D-5th, Glynn Hines, D-6th, and Michael Barranda, R-at large, opposed it.

Former City Councilman John Shoaff, a Democrat, supported the proposal and spoke in favor of it Tuesday.

“The new proposal we're putting forward is not a desire to limit any campaign contribution that has not already been limited by state or federal law. We do not have the ability constitutionally to tell anybody they can't give money,” Crawford said. “We're not placing any limit on any entity's right to express their views through contributions to an elected official.”

What the ordinance does, Crawford said, is use the city's existing purchasing ordinance to prohibit the city from contracting with any firm that has donated more than the $2,000 corporate donation limit imposed by the state.

“We're just saying we're not going to purchase from you if you go over this limit,” Crawford said.

Although similar in spirit to a 2011 ordinance introduced by then-Councilwoman Liz Brown, Arp and Crawford said their ordinance takes steps to avoid running afoul of state and federal law. But that opinion that was not shared by City Attorney Carol Helton and Scott Chinn, a partner at the Faegre Baker Daniels law firm with more than 20 years of experience in state, municipal and public sector law, including election law.

Chinn said his analysis of the proposal raised three areas of concern. He said the proposed ordinance could be superseded by the state's home rule statute and statutes regarding elections and campaign contributions.

“If you never got to the constitutional issue, it seems to me rather clear that this proposal violates the reserved section of the home rule provision and is pre-empted by state law,” Chinn said.

The proposal could also, at least in part, violate the First Amendment and the due process clause of the U.S. Constitution, Chinn said. And third, the proposal could cause “potential unfortunate consequences in litigation that are likely to result if this ordinance were to pass.”

In a statement late Tuesday, mayoral spokesman John Perlich expressed disappointment in the council's decision.

“We continue to have concerns about the constitutionality of this ordinance. We also believe it violates state law and doesn't protect First Amendment rights. In addition, there isn't clarity on how the ordinance would be enforced, and there's no proof of past or current pay-to-play activities,” Perlich said. “We're hopeful City Council will take these concerns into consideration before next week's final vote on the ordinance.

“The current bidding and awarding processes are working well. A lot of good work by a variety of respected companies is taking place in the city of Fort Wayne on multiple initiatives that are having a positive impact for residents, businesses and neighborhoods.”

In an interview after the meeting, Crawford said enforcement of the ordinance would take the form of an affidavit that firms must sign when submitting bids for contract certifying that they have not donated more than $2,000 to a city official's election campaign in the past calendar year. That affidavit, Crawford said, would be legally binding, and an applicant could be charged with perjury if it's discovered they lied.

A final vote on the ordinance is expected to take place during City Council's meeting Tuesday. Although Perlich did not say whether Mayor Tom Henry plans to veto the ordinance if it is granted final approval, he said a veto “would be an option we'd consider based on the concerns we shared with council (Tuesday).”