A proposal to ban city contractors from making contributions to city politicians violates state law, according to an opinion offered by the attorneys for the Indiana Election Division.
Dale Simmons and Leslie Barnes, co-counsels for the state division, wrote a four page memo dated Monday providing detailed reasoning for why the proposal does not comply with state law.
We believe the proposed ordinance unlawfully attempts to exercise the power to conduct elections,’ which is a power expressly withheld from municipalities by the General Assembly, they wrote. If this were not so, it would be easy to anticipate the confusion wrought in the administration of elections by numerous and conflicting local campaign finance regulations.
The reasons cited by the election division are similar to those cited by critics since the proposal was first discussed: mainly, state law prevents local communities from enacting their own election or campaign finance restrictions.
The bill, authored by City Councilwoman Liz Brown, R-at large, would prohibit a company, company owner, company owner spouse, company subcontractor, subcontractor owner or subcontractor owner spouse from doing business with the city if that person made political donations to city candidates or elected officials during the previous year.
A company that violates the proposal would have the opportunity to have the contribution returned to avoid penalty. A company that does not remedy its violation is subject to having its contract canceled and being banned from any city contract for three years.
State Sen. Tom Wyss, R-Fort Wayne, last week asked Attorney General Greg Zoeller to offer a legal opinion on the issue, but Zoeller has not yet said whether such an opinion will be granted. At least one Republican on the council has said he will not support the bill if the attorney general says it is not appropriate.
The legal opinion from the election division comes at the request of City Councilman Tim Pape, D-5th, who has criticized the legality and merits of the proposal since its introduction. Pape sent the opinion to Council Attorney Joe Bonahoom and asked for his reasoning to decide the bill was appropriate.
Bonahoom said home rule allows a city to exercise any power not denied by the state. While state law does withhold the power to conduct elections, Bonahoom said this bill seeks only to regulate city contracts, not political contributions.
This is really an effort to regulate local purchases and local contracts, he said.
Bonahoom said while a judge might disagree with him, generally when there is doubt to whether a unit of government has the authority to regulate an action, the government gets the benefit of the doubt in the matter.
Simmons and Barnes said arguments to characterize the bill as a contract issue instead of a campaign law fail because the bill revolves around campaign contributions and prohibitions, penalties and reporting requirements.
In sum, the ordinance attempts to alter, supplement and contradict state election law regarding political contributions, they wrote.
Bonahoom said attorneys are notorious for having varied opinions on difficult legal matters, and the state election board has a vested interest in keeping control of all election powers.
While I respect their opinion, it would seem to me that they have an interest in protecting their sovereign authority based on State law, Bonahoom wrote in response to Pape’s request.
He noted the attorney general would also have some bias to favor state government. The council did not discuss the matter Tuesday.