Sunday, April 24, 2011

Did Director David Sherman Mislead Council Committee With Claim Fuel Surchage Was Not Enforced Because of Legal Concerns?; Administration Continues to Flip-Flop on Issue

On April 11, 2011, WTHR's Sandra Chapman first reported on the failure of the City to enforce the fuel surcharge on public safety (mostly IMPD) take home vehicles.  As reported by Chapman:
Director of Public Works David Sherman
DPW Director David Sherman is in charge of the defunct Fuel Board. The mayor's office said he was unavailable, and Mayor Greg Ballard's communications director would speak instead.

"Mayor Ballard believes that that's the last step we should take to charging city employees, especially our public safety employees. We've reduced the overall number of take home vehicles across the city. We're also implementing a no idling policy," said Marc Lotter, mayor's spokesman.
On April 14, 2011, Jack Rinehart did a story on the failure to enforce the surcharge.  By then, the administration had added an additional reason for not enforcing the fuel surcharge ordinance:
Another reason the city hasn't imposed the surcharge is because there are questions regarding whether the $3 mark applies to the retail price or the bulk price of gas.
A week later, the Ballard administration completely changed direction.  Appearing before the Public Safety Committee on April 21, 2011, Public Works Director David Sherman said the reason for the administration's failure to enforce the fuel surcharge is that it could subject the the City to litigation.   In other cities the implementation of  a fuel surcharge had been found to violate the union collective bargaining agreements those cities had entered into with public safety officials.

Wait a second.  Here is how City Legal responded in the April 11th story:
"This is a little tricky, since it is a poorly written ordinance that has never been applied. Although the Fuel Board met in 2008 and set potential fuel surcharges for 2009, apparently, the retail price dropped below the threshold of $3/gallon, so the surcharge was never implemented."
If the legal problems that Sherman claim exist were behind the non-enforcement of the ordinance, why didn't City Legal mention them when given the chance on April 11th?  Why did it take ten days to come up with this claim of a legal problem to explain the non-enforcement?  And why at the April 21, 2011 meeting did no one from City Legal attend to answer legal questions from the Council when in fact that was the very reason cited for the non-enforcement?    

It should be noted that when asked about the fuel ordinance in the Chapman piece, Bill Owensby, president of the local Fraternal Order of Police, said they had not tried to block the ordinance.
"In no way shape or form, have we had any conversations to delay this or to block it," said Bill Owensby, Fraternal Order of Police president.
In the Rinehart piece, Owensby repeated that the IMPD officers had no prolbem with the surcharge:
"When fuel reaches a higher level, we'll pay that fuel surcharge," he said. "It's something we're willing to do because we know what's it's doing to our family budgets and we just think it's the right thing to do."
Sherman though told the committee it was the possibility of union legal action that the ordinance was not enforced.  The collective bargaining agreement certainly would have been subject to any ordinance in existence at the time.  This was the ordinance on take home cars before the amendment added language about the fuel surcharge.
Sec. 279-227. Eligibility for take-home cars.

Eligibility to participate in the take-home car program shall be determined in compliance with established policy, as the same may be amended from time to time by the director of the department of public safety.
It would appear that Director of Public Safety Frank Straub could have on his own imposed a fuel surcharge as a condition of having a take home car even without the fuel charge ordinance beign passed.. It is highly unlikely that there is any legal problem with the fuel surcharge at all. 

But that's not the end of the story.  On April 22nd, Chapman did a second story where Marion County Republican Chairman Kyle Walker (who is now apparently spokesman for the City) didn't bother to mention any legal problem with the ordinance and instead says it was not enforced because of politics, namely the administrtion is looking for other options besides "taxing" police officers:
They're looking for ways to actually reduce the fuel consumption and therefore the fuel costs, without penalizing the police officers," explained Marion County Republican Party Chairman Kyle Walker.

It's the mayor's answer now after 13 Investigates caught the city itself idling and failing to implement a $25 surcharge passed in 2008.

Public safety workers with take-home cars were supposed to pay the surcharge when gas prices exceeded $3 a gallon. The measure received bipartisan support, including support from Ballard.

Now the mayor and Marion County Republicans call it a tax on police officers.

Walker doesn't deny the mayor's flip-flop. "Right. And since that time police officers have helped with the overall budget shortfalls, or I should say budget savings that the mayor has proposed," Walker told 13 Investigates.
Walker never once mentions the alleged legal problems associated with the ordinance, the very reason Sherman cited the day before as justification for the administration not enforcing it.  Instead, according to Walker, the Mayor's position is pure politics....it is about currying favor with police officers. (Wouldn't a smarter move be to fire Frank Straub?)  I do wonder though what legal authority the Mayor has for picking and choosing which ordinances he enforces.  If Mayor Ballard disagreed with the ordinance, as Walker suggests, why did he not veto it after it passed the Council?

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