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The Journal Gazette

Tuesday, June 25, 2019 10:10 pm

Council lawyer: Mayor unlikely to appeal campaign contribution ordinance

DAVE GONG | The Journal Gazette

Fort Wayne Mayor Tom Henry's administration is unlikely to appeal a court ruling that struck down a controversial ordinance limiting campaign contributions from city contractors, City Council Attorney Joe Bonahoom wrote in a memo to the council president. 

Allen Superior Court Judge Jennifer DeGroote blocked the city from enforcing the ordinance earlier this month after Kyle and Kimberly Witwer of Witwer Construction Inc. challenged the ordinance in a lawsuit. The ordinance forbade any company from bidding on a city contract if any owner, partner or principal who owns more than 10% of that company gave more than $2,000 to the political campaign of a person with responsibility for awarding contracts. 

DeGroote ruled that the city ordinance is overridden by state laws governing campaign finance, taking an opinion previously expressed by Attorney General Curtis Hill. The city has until July 11 to decide whether to appeal the ruling. 

Bonahoom's memo was written last week and made public during tonight's City Council meeting. 

Bonahoom wrote that the case in favor of the ordinance was hurt when attorneys for the city agreed to consolidate a hearing regarding a preliminary injunction – or temporary suspension of enforcement – of the ordinance and a trial on the measure's merits. 

"In other words, the city voluntarily consented to allowing a quick trial on the merits of the claim without filing any answer or other response to the plaintiff's 65-page complaint, without undertaking any discovery, without consulting with the attorney for the City Council and his law firm who had been researching and reviewing these issues for the past 8-10 years, without the benefit of any evidence being obtained through formal discovery and with only submitting two paragraphs as the defendant's statement of contentions," Bonahoom wrote.

Although the city did hire a "highly-skilled and experienced" attorney with expertise in the area being discussed, Bonahoom noted that Henry's administration has always been against the ordinance. Henry vetoed the ordinance twice, once when it was originally passed and again when it was amended, only to be overridden by the City Council each time. 

"The hearing on the merits lasted approximately four to five hours, most of which was taken up by arguments presented by the plaintiff's counsel," Bonahoom wrote. "The city provided very little resistance to the arguments being put forward by the plaintiffs." 

Speaking during Tuesday's City Council meeting, Councilman John Crawford, R-at large expressed disappointment in the court's ruling, describing Indiana politics as a "cozy little hot tub."

"The politicians like being in it, because they get big donations. The contractors don't mind being in it because they get big money contracts for giving the donations," Crawford said. "So there's very little impetus to change it, except when people look at it and say that really should be better and it should be the same for all types of corporations and business entities."

It's unseemly, Crawford said, adding that the city's legal department has said it has not made a final determination over whether to make an appeal.

Councilman Jason Arp, R-4th, co-sponsored the ordinance and thanked his colleagues for voting for the ordinance and voting to override Henry's veto.

"We should be very proud of ourselves for what we did accomplish," Arp said. "I think what we did could have been a model for the state, it could have been a model for the rest of the municipalities in the state. Unfortunately the court didn't see it that way and I wouldn't be surprised if the administration didn't do much to appeal the decision." 

Councilman Glynn Hines, D-6th, took a different tone in his remarks Tuesday. 

"I want to congratulate Mr. and Mrs. Witwer and Witwer Construction and attorney Mark GiaQuinta for challenging the pay-to-play and winning," Hines said. "I think the attorney general, the top lawyer for the state of Indiana had already said it was illegal and thank goodness the Witwers stepped forward and challenged it."

dgong@jg.net