The Journal Gazette
Wednesday, June 12, 2019 1:00 am

City loses ordinance court fight

Judge blocks 'pay to play' rule enforcement

DAVE GONG | The Journal Gazette

An Allen Superior Court judge has ruled against the city of Fort Wayne in a case involving its controversial campaign finance ordinance. 

In a 13-page ruling, Judge Jennifer DeGroote blocked the city from enforcing the ordinance that restricted how much money the owners of companies could give elected officials and still bid on city contracts. The ordinance forbids 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. 

Mayor Tom Henry vetoed the ordinance, known as “pay to play,” but the City Council overrode that veto. 

“The city of Fort Wayne attempted to address legitimate concerns regarding quid pro quo exchanges or pay to play arrangements that tie contracts for professional services to contributions made to elected government officials who have authority to influence the awards of such business,” DeGroote wrote. “However, the court finds that efforts by Fort Wayne, as well-intentioned as they may be, to address such practices in the 2018 ordinance is not permitted under current Indiana law as no such authority has been extended to municipalities.” 

Specifically, DeGroote's ruling stated that the ordinance was superceded by state law, specifically the Home Rule Act, which grants municipalities the ability to self-govern in areas not covered by the state. Elections, under state law, are the domain of the Indiana Election Commission.

The lawsuit challenging the ordinance was filed in April by Kyle and Kimberly Witwer of Witwer Construction Inc.

DeGroote's ruling specifically states the city of Fort Wayne “is not precluded from adopting an ordinance to regulate the purchasing of professional services,” but the challenged ordinance goes too far. 

“The 2018 ordinance, when taken as a whole, intertwines the city's ability to regulate purchasing of professional services with its inability to regulate campaign finance,” DeGroote wrote. 

The ordinance was championed by current City Council President John Crawford.

When asked to comment Tuesday, Crawford said that he had to first review the ruling before speaking about it. 

Crawford defended the ordinance during a May news conference, stating that the ordinance works. Crawford also said he found the timing of the lawsuit suspicious because it came at a time when candidates were beginning to raise money for the November general election.

Tuesday's ruling also vindicates an opinion authored by Attorney General Curtis Hill in September that argued that neither City Council nor the mayor had the authority to regulate campaign contributions in local races. Hill also argued the ordinance likely ran afoul of constitutional protections and laws regarding public contracting.

Those issues were not addressed in DeGroote's ruling. 

Mark GiaQuinta, the attorney representing the Witwers, said he was pleased with the ruling and gave credit to the Witwers for “having the guts to contest” the ordinance. If the City Council wishes to have more restrictive rules on campaign finance, GiaQuinta said, the proper course would be to contact state lawmakers. 

“The restriction included in the ordinance was so blatantly illegal that they really need to think through what it is they're trying to resolve,” he said. “Nobody is for pay to play. I'm not, the mayor's not. Nobody is. The problem with this ordinance was that it restricted people from making legal donations.”

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