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The Journal Gazette

Friday, April 26, 2019 1:00 am

Contractor sues to halt pay-to-play ordinance

MATTHEW LEBLANC | The Journal Gazette

The owner of a Fort Wayne construction company and his wife are suing the city, claiming an ordinance to curb so-called pay-to-play practices violates their rights to free speech and equal protection under the law.

The ordinance was first passed in 2017. Revised a few months later, it prohibits “business entities” from bidding on city contracts if any officer, partner or principal with more than a 10% ownership share in the entity and its subsidiaries controlled by it contributes more than $2,000 a year to the political campaigns of someone with responsibility for awarding contracts.

Kyle Witwer of Witwer Construction Inc. and Kimberly Witwer argue that's unfair in a 31-page lawsuit filed Thursday in Allen Superior Court. They shouldn't have to choose between bettering their business – which “performs contract management services” – and political activism, according to court documents.

Their lawsuit challenges the ordinance, claiming it violates state and federal laws.

“(The Witwers) desire both to contribute to candidates to municipal office in accordance with the limitations established by the legislature and regulated through the Indiana Election Commission and also participate in the city's bid process for professional services,” documents filed by attorney Mark GiaQuinta state.

The original city law and its update in June 2018 each survived vetoes from Mayor Tom Henry amid concerns about whether it runs afoul of federal and state statutes including the home rule law, which says local governments have no regulatory power of campaign finance.

The home rule law question is raised in the Witwers' lawsuit, and Indiana Attorney General Curtis Hill wrote in an advisory opinion in September neither the City Council nor the mayor has authority to regulate campaign contributions in local races.

Hill said the ordinance also likely violates constitutional protections and laws on public contracting.

But proponents of the local law say the measure is needed to ensure transparency in municipal contracts as they relate to political contributions.

City Councilman John Crawford, R-at large, co-authored the revised ordinance with Councilman Jason Arp, R-4th, and said it “was written carefully” to avoid conflicting with campaign finance law. It's found under the city's purchasing ordinance, he said.

Crawford expects the measure to pass legal muster and said it has limited high-dollar political contributions to local candidates from businesses.

“They can give an unlimited amount, they just can't compete for city contracts” if the amount is more than $2,000, he said.

The Witwers' lawsuit also argues businesses, their owners and family members of the owners are not treated fairly under the city ordinance.

“(They) are reluctant to donate to candidates in the 2019 city elections in the amounts they might otherwise for fear that their combined contributions will render Kyle's business ineligible to bid for city professional service contracts,” court documents state.

mleblanc@jg.net