Friday, August 30, 2013

Chris Crabtree: The Next Reality TV Star?

There needs to be a reality TV crew following around Chris Crabtree, Governor Pence's deputy chief of staff for external operations.  He constantly gets involved in wacky scenarios that remind me a lot of the gags shown on Spin City, a show about the zany staff surrounding the Mayor of New York City.

A photo Chris posted on Facebook earlier this year showed a tattooed locksmith breaking into a locked car while Chris and another Pence staffer looked on.   The text published with that photo says it all:
Original copy of State Budget awaiting Governor's signature locked in car with keys- $30 billion. Locksmith- $50. Look on Ben [Evans'] face 15 minutes before bill signing ceremony- Priceless. 

Chris may have topped that though.  During the Governor's announcement about the Super Bowl bid, Chris was standing in exactly the right spot so that his reflection appeared on the front of the podium. It reminds me of the countries that prominently feature their leaders in photographs plastered everywhere.  Cuba has Castro, North Korea has Kim Jong-un, Indiana has Chris Crabtree. 

Indiana Disciplinary Commission Violates Disciplinary Rule by Not Filing Annual Reports

The Indiana Lawyer reports:
The arm of the Indiana Supreme Court that enforces rules governing the admission and discipline of lawyers has been in violation of one of those rules for several years.

The Disciplinary Commission hasn’t produced an annual report in recent years, Supreme Court spokewoman Kathryn Dolan confirmed. The last annual report posted on the commission’s website as of IL deadline was from fiscal year 2009-2010.

“The reports weren’t put online because they’re not ready yet,” Dolan said. “We’re not trying to make a statement about why, it just wasn’t done. It was an oversight.”

Admission and Discipline Rule 23(23) states, “The commission shall make an annual report of its activities to the Supreme Court and the Indiana State Bar Association. The report shall include a statement of income and expenses for the year.”
Executive Secretary Michael Witte
Disciplinary Commission executive director Michael Witte did not respond to messages seeking comment about the absence of annual reports.

Indiana State Bar Association President Dan Vinovich said the association received financial information from the commission last week. “Once it was determined those reports needed to be filed, they have now been filed,” he said.
A lot of thoughts come to mind.  Maybe if the Commission didn't have six or seven staff members devoted to trying to take my license away for criticizing a judge in a private email the Commission might actually have the resources to file the reports on time.

Other thoughts.  Where are the commission members, the body that is supposed to be overseeing the work of Executive Secretary Michael Witte?   Commission Chairwoman Catherine Nestrick offers a less than credible defense of the failure to file, done via email, of course.  There is less chance for those pesky follow-up questions from reporters when you limit your reply to email.
Commission chairwoman Catherine Nestrick said a new case management system implemented to better track cases resulted in the delay in completing annual reports.

“As with many software implementations, we had a number of issues to work through and this caused a delay in the preparation and publication of the 2009-2010, 2010-2011 and 2011-2012 annual reports,” Nestrick said in an email. She noted the 2009-2010 report was only this summer reconciled with the new system and posted online.

“The remaining reports are in the process of being finalized and we expect them to be available very soon,” she said. Dolan said the reports will be posted online when they are completed.
Does Nestrick seriously expect us to believe the reports were delayed because it has taken more than three years to work out the glitches in software?    Why is it then that when the Indiana Lawyer uncovered the failure to file reports, the problem was almost immediately corrected?

The fact is Nestrick and the other board members screwed up.  If they are going to continually abdicate their responsibilities as members of the Commission, if they are not going to ensure that reports are filed and that charges are properly screened, those board members need to resign so that appointees who are more diligent in doing their jobs can be appointed.

DC Chairwoman Catherine Nestrick
Another thought.  Will the Disciplinary Commission cut slack on attorneys who likewise claim software problems or other technical problems for not meeting some requirement under the disciplinary rules?  I'm thinking not.

I find it interesting local county bar leaders interviewed by writer Indiana Lawyer David Stafford insisted on anonymity for comments that offered only mild criticism of the failure of the Commission to file reports.  In the next breath though those local bar leaders claim that most of their members are satisfied with the work of the Commission.

That is nonsense.   I have been an attorney for 26 years and I have heard nonstop criticism about how the Commission has operated under Executive Secretaries Donald Lundberg and Michael Witte. Those attorneys complain that the DC does not enforce the rules evenly, that political considerations enter the Commission's decision to target certain attorneys, that the DC goes after small firm attorneys and sole practitioners almost exclusively, and that the DC operates as a virtual star chamber via its use of secrecy. The board of the DC appears to be little more than a rubber stamp for whatever the Executive Secretary wants to do. My time as an attorney has spanned the Lundberg and Witte eras and I have yet to hear one attorney speak positively of how the DC has operated under them.  On the other hand, I have heard attorneys say positive things about how the DC ran under Shelden Breskow, Lundberg's predecessor.

The fact those bar officials requested anonymity for their criticism of the DC for failing to timely file reports reveals the truth about what is really going on. Those bar officials requested anonymity because they are concerned about retaliation from the Commission for daring to offer criticism. If the DC is not being operated in a political fashion in which critics of the Commission are targeted (like yours truly), then why would these officials have to worry about having their name exposed?  Their own conduct undercuts the claim that they and people in their county bar associations believe that the Commission is being run properly.  They know better.

Thursday, August 29, 2013

IBJ Details Indianapolis City Contractors and Their Political Contributions to Ballard Campaign

Still getting caught up on all the excellent articles in this past week's Indianapolis Business Journal. Today, I write about the front page story "City's building spree leaves Trails of Spoils."  In the article, which is subscription only, Kathleen McLaughlin details extensive research into the contracts received by engineers, architects and other consultants and the contributions those contractors made to the Indianapolis Mayor Greg Ballard. 
More than two dozen engineers and other consultants landed contracts worth $1 million-plus, according to records provided by the Department of Public Works. The city has spent $121 million on street resurfacing alone.

Ballard also secured a deep well of campaign cash.  Major Rebuild Indy contractors - most of them engineers - poured at least $221,000 into his 2011 re-election bid, accounting for 10 percent of the $2.2 million he raised that year, IBJ found.

Last year, Rebuild Indy contractors accounted for at least 32 percent of the $499,275 Ballard raised.
McLaughlin singled out American Structurepoint Inc. in her story:
The single-largest contract under Rebuild Indy - worth $16.5 million - went to American Structurepoint, one of the area's top two engineering firms. American Structurepoint was hired as a program manager, essentially an arm of the Department of Public Works.
American Structurepoint couldn't be clearer in its support of Ballard.  The firm's political action committee and top executives contributed $37,000 to the mayor's re-election in 2011, and CEO Willis Rick Conner gave another $13,000 last year.
In a May 2010 column on American Structurepoints' executives contributions to the Ballard campaign, I noted a fact left out a previous IBJ article which is also left out of McLaughlin article:
What is not in the article, is the fact that American Structurepoint used to be known as American Consulting Engineers and its owners, executives James Wurster and Willis Conner, were indicted for bribery by former Marion County Prosecutor Scott Newman. The indictments had to do with ACE giving a $50,000 campaign contribution plus a job to Indiana House Ways and Means Chairman Sam Turpin. The job was not disclosed and Turpin allegedly engaged in actions to favor Ace. Wurster and Conner took an appeal of the indictment and won on the basis that the allegation did not include a quid pro quo ("this for that") and without a specific allegation regarding what Wurster and Conner received for their money, the bribery allegation could not stand.

As a side note, the "quid pro quo" requirement remains one of the biggest obstacles to the enforcement of the state's bribery law. Rarely do those wanting favors hand over money with specific instructions to vote a certain way or engage in certain conduct favorable for the one offering the bribe. Rather Indiana's version of "Pay to Play" involves a wink and a nod which generally can't be prosecuted under Indiana law, but can be prosecuted under the federal Hobbs Act which has a lower standard.

While Wurster appears to be out, Conner is still with the company. During 2008 and 2009 (years when the Mayor wasn't even a candidate), Conner individually donated $22,500 to Mayor Ballard's Campaign. American Structurepoint executive Marlin A. Knowles, Jr. contributed $30,000. There are probably others from American Structurepoint who contributed to the Ballard campaign as well.
The McLaughlin article contains a handy table listing professional contractors, the size of the contract they received from Indianapolis city government and contributions to the Ballard during he 2011 and 2012 election year.  The table shows American Structurepoint receiving $16.5 million in city contracts and contributing $55,000.  R.W. Armstrong received contracts worth $14.5 million and gave $35,000, Beam Longest & Neff obtained $8.6 million in contracts and gave $26,000 to Ballard, United Consulting Engineers was awarded $8.2 million in contracts and donated $58,000, DLZ Corp. received $5.4 million in contracts and donated $44,625, Bernardin Lochmueller and Associates was given $4.7 million in contracts and gave $62,500 to Ballard.

It should be noted that it is very difficult to track these contributions.  Many executives and middle level employees of the company simply give in their own name.  Unless you know that the donor works for a particular company (which information is often not public) it is hard to link the contribution to the company for which the person works.  Thus, many more contributors might actually have links to particular contractors without that relationship being uncovered during the undoubtedly diligent search detailed in the McLaughlin IBJ article.

The article is certainly worth a read.  In fact, several articles in this past week's IBJ are worth reading.  Pick it up before it leaves the newsstands.

Wednesday, August 28, 2013

CIB Spending Soars, Claims $33 Million Annual Operating Deficit While Voting to Give the Pacers $21 Million More Next Year

First up is a report from WIBC:
The operating budget of the Capital Improvement Board will be about $115 million, which is $35 million more than last year's budget.

Ann Lathrop, CIB President
CIB President Ann Lathrop says the board will spend about $33 million dollars more than their estimated revenues. Lathrop says the deficit will be made up from their Renewal Replacement Account and operating reserves. Lathrop says the board was aware of the needed improvements and had planned for them. 

Over $13 million will be spent on Lucas Oil Stadium and the Indiana Convention Center and $10 million in improvements at Bankers Life Fieldhouse....
The Indianapolis Business Journal plays cleanup picking up the story of how much the CIB intends to give to the Pacers:
The Capital Improvement Board of Marion County is prepared to give Pacers Sports & Entertainment another $11 million to offset losses from operating Bankers Life Fieldhouse.

CIB President Ann Lathrop said Wednesday afternoon that the $11 million payment could be delivered in July 2014, after the current agreement with the Pacers expires. All told, the Pacers will receive $21 million from CIB next year, including money it will receive for repairs to be made to the fieldhouse. The CIB board voted 8-0 Wednesday afternoon to approve the funding.
Everyone should be outraged by what those clowns on the Capital Improvement Board continue to do to the good people of Indianapolis.  It is time that the Indiana General Assembly step in and shut down the Capital Improvement Board.

Usual Suspects Line Up to Support Mayor Ballard's Cricket Park

For those people interested in local politics, this week's issue of Indianapolis Business Journal has a number of excellent articles.  This includes a front page, subscription only article sporting the headline "Ballard wins allies for cricket strategy."

In the article, the City boasts that agreements have been signed for the USA Cricket Association to host the men's national championship here in 2014, 2015 and 2016.  Yet when asked for copies of the contract, city officials apparently have not been able to produce them.

The lack of written contracts though didn't stop the usual recipients of corporate welfare from lining up to support the Mayor Greg Ballard's 48 acre World Sports Park.

First up is Sports Corporation CEO Alison Melangton.  Melangton formerly ran the Super Bowl 2012 organization which of course was heavily subsidized by taxpayers.  The Sports Corporation lives publicly-subsidized sporting events.  Needless to say, Melangton supports the building of the park.  Her organization has agreed to help organize and run next year's national cricket championship.

Leonard Hoops, CEO of Visit Indy (formerly Indiana Convention Visitor's Association), wants IBJ readers to know he's very offended people are not supporting the Mayor's cricket venture:
"The presentation that I heard from the mayor emphasized that this is an amenity for our residents and an amenity for our residents....The mayor has continually said this but no one wants to listen."
There is another possibility Mr. Hoops.  Perhaps they are listening but just have different priorities, things like sidewalks for neighborhoods, police protection, libraries, etc. Hoop continues:
"It surprises me that we clamor as residents [to have] more green spaces and parks, [yet] we've been so aggressive as a community to attack this one."
And yet, Mayor Ballard has continually cut the parks budget.   I'm sure Hoops spoke out about that.  He didn't?

But what about corporate support?  Brian Gildea, executive director of Develop Indy, a part of the Indianapolis Chamber of Commerce, offers his thoughts:  
 "Companies like Eli Lilly Roche, and Dow AgroSciences have been very supportive of this project....They see this as a key amenity that will help them to retain and attract the best employees from all over the world."
Good.  Let those companies fund the cricket park then.  I should also point out that the Chamber has consistently promoted higher taxes so that more of the public's money can be channeled to downtown development.

Gildea then plays on the Indianapolis' inferiority complex, the wide-spread and misplaced concern that we as a city don't measure up:  
"Increasing Indianapolis' international flavor takes a variety of things and this is an amenity that broadens our national appeal..."
The IBJ writer went on to find some skepticism for his story and found it in an unusual source:  Milt Thompson. An attorney and "sports marketer," Thompson is also a member of the Capital Improvement Board, an entity which consistently pushed for more subsidies of sports in Indianapolis.
"There are still important questions to answer about who will program and operate this facility and how much that will cost city taxpayers..."
Later in the article Thompson added:
"I understand why it's being criticized and I understand why it's being built...  I see the value in building amenities that are attractive to a broad range of people.  But I am skeptical about the sustainability of these facilities."

"If you let the market drive it, that's what brings economic development and economic impact... That's a better model than, build it and they will come."
Thompson hit on the nail describing not only what is wrong with the cricket park project but in all of this administration's economic development efforts. Development under the Ballard administration is always about creating demand by first increasing the supply.  Thompson points out the problem with the cost of maintaining the facilities and keeping interest going in events at the complex.  It doesn't help that city officials later point to the little used Mayor Taylor Velodrome as a model for the future of the World Sports Park.   I drive by the velodrome on a regular basis, often several times a day.  I can't recall the last time I've seen it being used.

Democratic Councilor Angela Mansfield adds to the criticism:
"If the mayor seems to think he has $6 million of fluff money that he can spend on a cricket field, he needs to refocus his priorities and spend it where the citizens need it, and that is in the sidewalk infrastructure."
The article notes that the $6 million for the World Sports Park will be funded by money from the Rebuild Indy fund.  That fund initially had $400 million gained from the sale of city utilities.  Only $20 million remain.  So in the three years since the sale, the City has blown through $380 million, 95% of the total gained from the sale?  Oh, and regarding that $400 million, that wasn't found money to begin with.  The utilities were sold to a publicly-owned entity which borrowed money to pay the $400 million.  We, the public, have to pay that back and will do so in higher rates.

Tuesday, August 27, 2013

Analysis of Court Drawn Council Map Shows Indianapolis Republicans Have Nowhere to Go for a Majority

I spent some time crunching the numbers to ascertain the partisanship leanings of the non-partisan maps produced at the direction of the Marion County Superior Court.   The courts' order, which outlines which precincts will be in which districts, is available here.

First, a caveat.  The data I used to establish my baseline is the 2012 Marion County Surveyor's race.  While you always look for a low profile race, I would have liked to use 2010 data given the turnout in such a midterm election is closer to the turnout in a municipal election. However, due to the reprecincting after the 2010 election, I would have needed an expensive computer program to convert that 2010 election data, ran under pre-2010 precincts to the post-2010 precincts.  Still the 2012 data is not without advantages.  2010 was an exceptionally good Republican year which doesn't reflect a typical year. Plus, 2012 data is newer and thus would incorporate some of the more recent population shifts.

When the map by Republican operative David Brooks was put together in 2011, he provided summaries purportedly showing that, using the 2010 data, the Republican party would have a majority in 15 of the 25 council districts.  I questioned whether that was possible given the growing Democratic majority in Marion County. Indeed when I ran the Brooks map using the 2012 election numbers, I found dramatic reductions in the Republican baseline in virtually every district from 2010 (as claimed by Brooks) to 2012, so much so that the Democrats had a 17-8 majority under the Brooks map.

The good news for the GOP is that there are more Republican districts in the Marion County Superior Court map than the one drawn by Brooks.  According to my analysis, again, using 2012 election data, the Democratic majority, as measured by the baseline in each district is 15-10.

Unfortunately for Republicans that is the only good news about the judicially-drawn map.  Republicans have five districts (3, 4, 5, 17 and 19) which only lean (less than 6 point spread) Republican.   The margin between the partisan baselines in those districts is only 3.2, 2.6, 3.6, 2.8 and 1.8 respectively.   Districts 3, 4 and 5 are districts in eastern Washington Township and Lawrence Township.  District 17 is in the Irvington area while District 19 is at the corner where four townships (Center, Perry, Wayne and Decatur come together). My guess is that these leaning Republican districts will prove to be more Republican in the low turnout municipal election year.

Meanwhile the Democrats have no close districts to defend.   District 12, which sets on the far west side of Wayne Township is a moderately competitive Democratic district with an 8 point spread.  Meanwhile Republicans have a moderately competitive district, District 24 (northern Perry Township) that has a baseline margin of 10.4 points.

That's it for election competition.   The rest of the districts are noncompetitive, i.e. more than a 15 point spread between the two baselines, and often much, much more than that.   Republicans have 4 solidly GOP districts (18, 22, 23, and 25) all on the southside.  Their margins are, respectively 16.0, 23.4, 23.8 and 19.5.  Democrats meanwhile have 14 solidly Democratic districts (1, 2, 6, 7, 8, 9, 10, 11, 14, 15, 16, 18, 20, 21) that respectively have margins of 34.4, 24.6, 32.0, 65.2, 45.3 54.6, 59.2, 42.8, 76.4, 74.2, 77.4, 16.0, 40.0, 22.0.

In summary, there are only 7 council districts that are close or moderately competitive and 6 are those are Republican baseline seats.  Eighteen of the districts are non-competitive, some spectacularly uncompetitive.  The maximum number of seats Republicans can win on this map is ten, eleven if everything breaks right and they win District 12.  If it is a bad Republican year, the Democrats on the high end could end up winning as many as 20 districts.

Here is the table showing my analysis.

Dist     D    R      Total D% R% Spread  Party
1 11328 5518 16,846 67.2 32.8 34.4    SD
2 9561 5749 15,310 62.4 37.6 24.6    SD
3 8308 8870 17,148 48.4 51.6   3.2      LR
4 8248 8698 16,946 48.7 51.3 2.6    LR
5 8144 8760 16,904 48.2 51.8 3.6      LR
6 8790 4536 13,326 66.0 34.0 32.0   SD
7  10,750 2192 12,942 83.1 17.9 65.2     SD
8 13,418 5033 18,451 72.7 27.3 45.3     SD
9 13,722 4024 17,746 77.3 22.7 54.6     SD
10 8518 2179 10,697 79.6 20.4 59.2   SD
11 9488 3807 13,295 71.4 28.6 42.8      SD
12 6809 5790 12,599 54.0 46.0 8.0   MD
13 5893 4329 10,222 57.7 42.3 15.4      SD
14 9624 1284 10,908 88.2 11.8 76.4   SD
15 14,750 2192 16,942 87.1 12.9 74.2      SD
16 12,376 1569 13,945 88.7 11.3 77.4    SD
17 7730 8183 15,913 48.6 51.4  2.8        LR
18 4619 6372 10,991 42.0 58.0 16.0      SR
19 4218 4378 8596 49.1 50.9 1.8      LR
20 5798 2304 8102 70.0 30.0 40.0    SD
21 5341 3421 8762 61.0 39.0 22.0    SD
22 5544 8926 14,470 38.3 61.7 23.4    SR
23 5597 9079 14,676 38.1 61.9 23.8      SR
24 4871 5996 10,867 44.8 55.2 10.4    MR
25 4817 7140 11,957 40.3 59.7 19.4    SR

Monday, August 26, 2013

Is This Responsible Journalism?; Star Details 16 Year Old's Internet Initiated Rendezvous With South Carolina Man

For the last two days, the Indianapolis Star has featured prominently on its web page an on-going story about a 16 year old Carmel teen who had disappeared.  Shortly after the first story appeared, another one reported that she had been found in South Carolina with a 23 year old man she met over the Internet.   Apparently the man had picked her up in Carmel and drove her to his South Carolina home.
The Star is not releasing his identity because he has not been charged with a crime. Bickle said Carmel police are working with the Hamilton County prosecutor’s office to determine whether any criminal charges will be filed.
The article goes on to mention that the age of consent in Indiana and South Carolina is 16.

Since when is it the Star's policy that they don't identify adults who haven't been charged with a crime?  The Star does it all the time.

In this case, however, the Star had no problem publishing the photograph and name of the teen.  Undoubtedly the initial disclosure came at the request of the parents who thought publicity might help find their daughter. But when it became apparent that the teen had met a man online and gone to South Carolina with him, is there a need to publish that?  The Star could have simply reported that the woman was found in South Carolina and had returned without getting into the details.  The Star should have respected the 16 year old's privacy.  Life is difficult enough at 16 without having one's dating life exposed on the Internet for the world to see.

P.S.  I am purposefully not linking to the story which has the young lady's photograph.

Saturday, August 24, 2013

Are Party Rules Giving More Power to County Chairmen by Allowing for Removal of Appointed Precinct Committeemen Legal?

Over on Facebook, a discussion about Brian Mahern's attempted coup attempt led to a comment by his father, former State Senator Louis Mahern, that Democratic Marion County Chairman, that anyone named "Mahern" from appointed precinct committeemen (PC) slots.  Of course the Mahern family has long been very involved in Marion County Democratic politics, with Louis, Dane (Brian's cousin), and Ed (Brian's uncle) serving in various elected and appointed positions.

If Chairman Miller did indeed remove appointed Maherns from PC slots he wouldn't be alone in his manipulation of the PC system.  Both Republican and Marion County Chairmen have been removing appointed committeemen from slots for several years in an effort to ensure the people the people they want are slated.  County chairmen have also been able to ward off possible coups by removing appointed PCs who might vote or run against them.

When the legendary Republican County Chairman John Sweezy was at the helm he refused to remove appointed PCs simply because they wouldn't vote the "right" way at a slating.  He also placed an emphasis on having elected PCs.  Now the emphasis runs in the opposite direction.  Party leadership does not want elected PCs as it is easier to control who is slated if the PCs are appointed.  I believe going into the last county-wide slating, only 15% of the Marion County GOP PCs were appointed..

Under Indiana law, (IC 3-10-1-4.5 & 4.6) party precinct committeemen are elected every four years.  Pursuant to another provision, each person seeking to be elected as a PC has to be certified as a registered voter in that precinct.  (IC 3-8-2-9).  Almost all the other provisions relating to precinct committeemen have been removed from the statutes and can be found in party rules. In fact, IC 3-10-1-4.6(c) refer to GOP party rules:
(c) The rules of the Indiana Republican Party may specify whether a precinct committeeman elected under subsection (a) continues to serve as a precinct committeeman after the boundaries of the precinct are changed by a precinct establishment order issued under IC 3-11-1.5.
A similar provision in IC 3-10-1.4.5(c) applies to the Democratic Party.

Let's look more closely at the party rules, in particular those governing the State Republican Party:

The Republican Party has adopted rules allowing elected PCs to be removed for cause:
Rule 3-22.  Elected precinct committeemen and their appointed vice-committeemen as appointed in Rule 2-12 shall be subject to removal for cause on written charges filed with the Secretary of the County Committee and the Secretary of the State Committee, who shall notify the County Chairman that these charges have been filed.

Rule 3-23.  As used in Rule 3-22, “cause” includes:

(1) any willful violation of these Rules, a resolution of the State Committee, or a        
  statute pertaining to elections; or

(2) conviction of a felony;

(3) or gross misconduct affecting the party organization.
What follows in the rules is a description of the procedure to be followed when removing a elected PC for cause.

The rules also provide for the appointment of PCs in the event of a vacancy:
Rule 3-19.   The County Chairman may fill any vacancy in the office of precinct committeeman or vice-committeeman (subject to Rule 2-12) by certifying the appointment to the State Secretary on the prescribed form.  Anyone chosen to fill the vacancy shall be a qualified elector of the county, a member in good standing in the Republican Party, and have cast a Republican Party ballot at the individual’s most recent vote at a primary election. An individual who has not previously voted in a Primary Election must have an authorization form signed by the county chairman and the person being appointed committeeman saying the individual pledges full support to the Republican Party and the candidates of the Republican party. The form (IRSC/CA-1) must be attached to the back of the appointment form when the county chairman completes the form sent to the State Committee.  No precinct committeeman or vice-committeeman can be appointed in a precinct in which there are no registered voters.
(The irony here is that while another rule (Rule 3-27) lets a county chairman remove a PC for no longer being a resident of the precinct, the rule above allows the elected PC to be replaced by an appointed PC who lives anywhere in the county.)

Now let's turn to the removal language in the rules as applied to appointed PCs.
Rule 3-20.  The individual appointed under Rule 3-19 serves for the term specified in Rule 2-9 (for appointed precinct committeemen) or Rule 2-16 (for vice-committeemen) and is subject to earlier removal at the pleasure of the County Chairman.  
The highlighted language is key.  County chairmen, those who want maximum power, have an incentive to prefer appointed PCs who could be easily removed.  This is particularly true in Marion County where slating almost always dictates who the primary winners will be.

But are the party rules which have shifted extraordinary power to the county chairmen and I would argue have undercut the traditional strength of party workers, legal?  I don't buy that they are.

Here's the thing.  Indiana law provides that a PC is an elected position.  A county chairman appointing a PC is appointing someone to a statutory elected position. The general rule is that when an elected position is filled by appointment, the person duly appointed does not have less authority than the person would have had if elected.  If a Governor appoints someone to fill a vacancy in a U.S. Senate seat, the Governor can't later remove that Senator if the Senator doesn't vote the way the Governor wants.

The question is whether a party rule can change the status of PC who is appointed versus one who is elected.  Absent the legislature giving state parties that authority, I don't think so.

Same goes with residency.  If a person needs to be a resident of a precinct to be elected as a PC, I think that requirement would also apply to someone who is appointed.  Again, absent the legislature setting aside the residency requirement for appointed PCs, or giving the authority to do that to the state parties, I don't think party rules can change that statutory requirement.

Of course, the issues raised her have never been litigated and may never be litigated.  Regardless, I think the parties made a big mistake in adopting rules that empowered county chairmen at the price of taking power away from precinct committeemen.  Without a strong grass roots, a party is unlikely to be successful.

Friday, August 23, 2013

Head of DMD Says Most Pike Township Homes Have Life Expectancy of Only 30 Years; Official Apparently Flunked Real Estate 101

Urban Indy reports:
DMD Director Adam Thies
What happens when a large section of a city threatens to become obsolete?  That question came to my mind after hearing Indianapolis’ [Department of Metropolitan Development] director Adam Thies mention that he was worried about the future of Pike Township at yesterday’s We Are City Summit.  I was fortunate to be invited to the event as a media member, and I left both inspired and looking for answers.  Thies mentioned that most of the houses in Pike Township were built to last 30 years, and they are rapidly approaching that age now.
I went looking for the video because I could not believe someone in such as an important position as Thies actually said that. If so it qualifies as one of the most ridiculous statements I have ever known a public official to utter. And that's saying a lot.  How could Thies be so completely ignorant of how the housing market works?  Unfortunately I could not find any video from the conference sponsored by Indianapolis Downtown Incorporated.  (Apparently Pike Township is now in the downtown area.)

If properly maintained, houses, unlike cars, almost always appreciate over time.  That includes homes that may not be built with the best materials when constructed.  There is no reason that homes in Pike or elsewhere become obsolete when they hit 30 years old.  I'm also not sure why Pike homes are supposedly different from homes in other townships, but that's another issue.

If Thies' theory were true, which it obviously is not, lenders would never refinance a 25 year old house in Pike, accepting a 30 year mortgage on the property in exchange for the loan.  Lenders do that though because the home is not depreciating in value with a life expectancy of 30 years.  Try going to your bank and borrowing $20,000 on a car you paid $20,000 for ten years ago and which now has 200,000 miles on it. The bank won't lend the money because the car isn't worth $20,000 anymore.  Cars depreciate in value.  But banks lend money on older homes all the time, including loans of more than was originally paid to buy the property.  They do that because a home is not a depreciating asset like a car is.

If Thies is correct, we have a lot of appraisers who need their licenses yanked because they are valuing 30 year plus homes in Pike at higher than the buyer paid for the home three decades ago.  We also have a lot of real estate agents who are listing Pike homes at too high a value considering those homes have an average life span of only thirty years.

There is nothing "inspiring" about Thies' comments.  Rather they make you wonder what qualifications it takes to be a department head in city government.  At the very least we should expect the head of the Department of Metropolitan Development to have an elementary understanding of how real estate market works.  Clearly Thies does not.

Thursday, August 22, 2013

Why "Wild Card" Brian Mahern May Still Win the Political Card Game

While embroiled in a couple bitter grandparent custody trials this week, I missed the opportunity to write about recent local political developments. Two bloggers - ironically Democrats from Marion County's least populated township, Decatur- penned excellent columns on the attempt of Democrat Councilor's Brian Mahern's attempt to oust fellow Democrat Maggie Lewis from her job as President of the Indianapolis City-County Council.  Jon Easter of Indy Democrat leads off the discussion:
Councilor Brian Mahern
Brian Mahern’s once bright political light didn't just short circuited on Monday

Mahern tried to unseat Maggie Lewis as President of the City-County Council at Monday's Council meeting.  He failed.  Spectacularly.  Didn't he count votes or something?
Mahern fell short of the necessary votes to toss out Lewis.  Four Republicans (Jose Evans, Christine Scales, Will Gooden, and Jeff Miller) joined with the 13 Democrats present to punt Mahern's poorly conceived proposal out of consideration, 17-11.

What surprises me is that Mahern's plot to overthrow his own Council leader was so poorly conceived.  One thing a Mahern, of all people, should know is when you're trying to take out the City-County Council President that you should make sure you have the votes.  Now, he's finished.  His ability to push any agenda is through.  Now, he is a party of one.  Where he goes from here is anyone's guess.
Pat Andrews of Had Enough Indy takes note of the current 15-14 split on the council and comes to a different conclusion regarding Mahern's future influence:
The Council leadership and their power brokers didn't like all that talk about being sensible with TIFs - nor, for completeness sake, do the Council minority leadership and their power brokers.
The Ds stripped Mahern of his Chairmanship, of his VP position - and just last week they stripped him of even serving on the coveted Rules committee. 
But, the Ds should worry about continuing their harsh ways.  Mahern could do an Evans and switch party allegiance to the Rs.  What would he lose?

That one seat would swing the Council to an R majority.

They could cut millions from all Democrat-elected County office budgets - with abandon.

They could re-re-redistrict the Council seats and end the chance that the State Supreme Court would redraw the maps as they did a decade ago.

They could eliminate the homestead credit.  They could redraw the old IPD tax district.  They could increase the COIT and PST income tax rates to max.

They could reassign all members of standing committees of the Council, and taking the D lead, assign a lone D to each one.  Just for fun, they could assign Mahern to all the really nifty committees.

They could create as many new TIF districts in Republican held Council districts as they wanted.  They could continue to snub D Councillors and still not invite them to ribbon cutting ceremonies when key projects are commenced in a Democrat held Council district.

The Mayor's office could go back to ignoring them.

My god, they could even switch the side of the room they sit in.

Clearly, Maggie Lewis would not remain Council President if the Rs gained the majority.

Yup.  A little strategy might be a good thing here. 
Pat's analysis is dead on, except in one respect. She has Mahern switching to the Republican Party.  It is unlikely that Mahern, from a well-known and long-time Indianapolis Democratic family, would do that. Mahern though does not have to switch parties  All he has to do is vote with the Republicans on organizational votes and the Democrats, although a majority in number, are reduced to being in the minority.

Jon makes the point that Brian Mahern screwed up by not counting votes beforehand.  Perhaps. But here is another possibility - Mahern's maneuver to try to oust Lewis caught councilors by surprise or they only received very short notice.  Undoubtedly Republican minority leadership would want to have extensive and lengthy negotiations with Mahern about switching his organizational votes to the Republican side. What would Mahern want and what could the Republicans stomach?  Obviously Mahern will want his favored committee assignments back and probably will want to chair one of them, quite possibly the coveted Rules Committee.  It is on the non-organizational issues where the negotiations with Mahern get more difficult.  Republicans (and Democrats) are unlikely to stop handing out corporate welfare any time soon. The apparent (at least) $10 million annual stipend to the Pacers is unlikely to stop.  Payoffs to developers are likely to continue.  But while Mahern may not be able to stop corporate welfare of that sort, he might be able to stem the tide by getting the Republicans to put a hold on the creation of new TIF districts and demanding other changes.

Could Republicans behind the scenes be negotiating an alliance with Mahern on reorganization?  Well the first sign would be that longtime establishment Republican critics of Mahern cease their criticism of the councilor.  Probably the biggest critic of Mahern has been Abdul Hakim-Shabbazz who regularly trumpets the establishment Republican line on his blogs.  Mahern's loss Monday night was a perfect opportunity for Abdul to lash out at Mahern, to ridicule him as he does on a regular basis.  Instead Abdul matter-of-factly reported the coup attempt on his IndyPolitics blog without editorial comment.  On Twitter, where Abdul has regularly directs invective at Mahern, he simply described Mahern as a "wild card" and perhaps presciently referred to the successful 2005 coup attempt when Democrat Steve Talley took out Democrat Council President Roselle Boyd.    That year, Talley voted with the Republican council minority, while remaining a Democrat, to elevate himself to the role of President. While I don't believe Mahern's goal is to be Council President, he has a number of organizational and policy goals that could be achieved by switching his organizational vote as did Talley in 2005..

People may well assume that Abdul's description of Mahern as being a "wild card" meant he was saying Mahern is "unpredictable," which is the ordinary definition of the term when the term is applied to a person.  But there is a second definition of "wild card," i.e."a playing card that can have any value, suit, color, or other property in a game at the discretion of the player holding it."  In the card game known as politics being the wild card in a council split 14-14 gives you a whole lot of power.  What happened Monday may have only been the first hand in a card game that continues.

Note:  While writing this, Matt Stone of Indy Student also wrote on the Mahern coup attempt.

Tuesday, August 20, 2013

Husband And Wife Leave High Ranking State Jobs in August to Become Lobbyists: Departures Point to Need to Strengthen Revolving Door Law

First, the Associated Press reports on the departure of Davey Neal from the Secretary of State's Office:
Heather Willis Neal and Davey Neal
As part of its pitch to represent Indiana’s microbreweries, a powerful lobbying group proposed hiring an executive director with business smarts, knowledge of alcohol laws and who currently works for the same government he would be trying to persuade.

It’s hardly uncommon to go from being employed by Indiana’s government to lobbying it, but an increasing number are making the jump without sitting out the customary one-year “cooling-off” period.

Davey Neal, chief of staff to Secretary of State Connie Lawson, was granted a waiver Thursday allowing him to become a lobbyist almost immediately, should his perspective employer, The Corydon Group, land its $171,000-a-year contract with the brewers.

Corydon Group officials made their pitch to the Brewers of Indiana Guild in a March 4 business plan obtained by The Associated Press. Neal followed up with the brewers two months later, touting his expertise with other members of the lobbying powerhouse, according to a person who attended the meeting but requested anonymity to discuss the contents of a private meeting.

Stuart Yoak, executive director of the Poynter Center for the Study of Ethics and American Institutions at Indiana University, said he would be concerned about Neal potentially misusing his government position or improperly relying on his insider knowledge of government to get hired.
The Ethics Commission ruled [August 8th] that Neal’s previous work on the alcohol commission should keep him from lobbying executive branch employees for a year. But the panel didn’t bar him from plying lawmakers immediately and approved his move to the lobbying group. 
Then news broke yesterday that Davey's wife, Heather Willis Neal was leaving her position to join a lobbying firm. The Evansville Courier Press reports:
Indiana Gov. Mike Pence's legislative director will join a political strategies company in the midst of an uproar about her former boss, the firm’s owners said Monday.

Heather Willis Neal served as chief of staff to former state Superintendent Tony Bennett during the time he is accused of changing the state’s A-F grading system to benefit a charter school he had been touting. Neal participated in email exchanges that discussed making the controversial changes. 
After Bennett lost his reelection bid last year, Neal moved to the new Pence administration. Now, she’ll serve as president of the public affairs practice at Limestone Strategies, a firm co-founded by Cam Savage, who also worked for Bennett. 
“Heather is a tremendous addition to our company,” Savage said in a statement. 
“Having worked in the highest levels of Indiana government for more than a decade, her credentials are unrivaled as a leader on just about every key issue from economic development to education to elections,” he said. “She is an even more extraordinary person and we couldn’t be more thrilled to welcome her to lead our new practice.”
Savage's depiction of Heather Willis Neal is certainly not shared by everyone at the Statehouse.  Many people reported that she was difficult to work on a personal level and often cited as one of the Department of Education staffers who steered the Superintendent Tony Bennett away from supporting conservative education reforms.  She played a major role in advocating for an A-F grading system that downplayed growth in favor of performance, a system which hurt the ranking of charter schools, caused a riff with Republican legislators, and ultimately led to the media brouhaha that felled Bennett from his job as Florida Education Commissioner.  Heather Willis Neal was also an unabashed advocate of Common Core, national education standards which did not play well with conservative (and some liberal) audiences.

No word yet if Heather Willis Neal will pursue a waiver from the Inspector General's Office to lobby the legislative branch.  It does not appear that under Indiana law she would have to as long as she doesn't seek to lobby the executive branch.  The irony though is that in her executive branch jobs in both the Department of Education and under Governor Mike Pence she lobbied the legislative branch, the very thing she will be doing with Limestone Strategies.

Monday, August 19, 2013

Executive Secretary Witte Notes Rules Require Judges to Report Attorney Crimes; Rules Do Not, However, Excuse Commission's Failure to Protect the Public

In the Indiana Court Times, Executive Secretary Michael Witte of the Disciplinary Commission pens an article appearing to answer his critics, including the Indiana Business Journal and yours truly, regarding the Commission's failure to file disciplinary charges against some high profile attorneys who have pled guilty to felonies:
A judge who has entered a criminal guilty finding against a lawyer has an affirmative
duty to report the conviction to the Disciplinary Commission. This duty is found in Admis. Disc. R. 23 §11.1(a)(1). The rule requires the judge to transmit a certified copy of the finding of guilt to the Disciplinary Commission within ten (10) days of the finding being made. This rule applies to all criminal convictions and not just felonies. It has become a myth handed down through generations of the bar that this rule only applies to felony convictions. That myth is inaccurate.
Confusion on this topic arises when one looks at Prof. Cond. R. 8.3(a) and 8.4(b). Rule 8.3(a) governs the duty of all attorneys to report lawyer misconduct. Rule 8.4(b) defines what criminal conduct is considered ethical misconduct. Both rules set a standard that an ethical violation must raise a substantial question as to the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects. Sometimes judges go through this mental exercise of weighing the nexus of the crime to this standard and decide there is not a duty to report. The judge might not be aware of the separate procedural duty as an administrator of court records to report the conviction to disciplinary authorities.

The Rules of Professional Conduct are the substantive rules that guide our personal conduct as lawyers. Admis. Disc. R. 23 is the procedural rule for the discipline process. Procedurally, a judge is required to carry out the conviction notification to the Commission. The judge does not have to perform the nexus analysis before fulfilling this duty. The nexus question initially is a charging decision exercised by the Commission and later becomes an element of proof for them.

The wayward lawyer also has a duty to self-report the conviction to the Commission [Admis. Disc. R. 23 §11.1(a)(2)]. This duty does not extinguish the trial court’s duty to report the conviction.
Witte's article might be viewed by some as an attempt to transfer blame for the Commission's failure to act against attorneys who have committed crimes to the judges who fail to certify the convictions per the Admission and Disciplinary Rules.   Indeed there are undoubtedly many attorney criminal convictions for which the Commission has no knowledge and the failure to act on those convictions is perfectly understandable.

The fact that judges (and attorneys) may have failed in their duty to report criminal convictions, does not excuse the Commission's failure to initiate action against attorneys whose criminal convictions are publicly known.  When confronted with the failure to charge an attorney involved in unethical, even criminal, behavior, the Commission's typical response is that no one filed a grievance.

However, the Executive Secretary has the authority, with the approval of the Commission, to file disciplinary grievances on his own.  He does not have to wait for someone else to file a grievance. In a typical year, 5% of the grievances are initiated by the Executive Secretary.  There is absolutely nothing in the rules requiring the Commission to first have a certified copy of a conviction before filing disciplinary charges against that convicted attorney.

Mr. Witte's taking the time to inform judges that they have a duty under the rules to report attorney criminal convictions is a good thing.   But that missive should not be used as an instrument to shift blame.  Witte and the nine commission members have a duty to prioritize the work of the Commission to focus its limited resources on protecting the public from unethical attorneys.  They have certainly failed in that duty and they should be held responsible for that failure.

IBJ Criticizes Disciplinary Commission for Failing to Prioritize Protecting the Public From Unethical Attorneys

This week the Indianapolis Business Journal focused its staff editorial on the misplaced priorities of the Disciplinary Commission:
Attorney Catherine Nestrick,
Chair, Disciplinary Commission

They’ve been in the headlines for all the wrong reasons. Yet next to the names Paul J. Page and David Wyser in the Indiana Roll of Attorneys appear the words: “Active in good standing.”

Page, a Marion County criminal defense attorney, in January pleaded guilty to a felony wire fraud charge in connection with an Elkhart real estate deal. Wyser, a former Marion County deputy prosecutor, in May pleaded guilty to a felony bribery charge for accepting a campaign donation in return for a reduced sentence for a convicted murderer.

The men face potential prison time for their crimes. But the Indiana Supreme Court Disciplinary Commission has allowed them to continue practicing law in Indiana. Adding insult to injury: The attorneys’ public files with the agency show no active disciplinary cases.

That’s a problem for an agency charged with protecting the public. The commission has allowed Page, Wyser and other attorneys who have pleaded guilty to felonies to continue practicing law, while aggressively pursuing comparatively minor matters.

One example is the commission’s case against outspoken attorney and blogger Paul Ogden, who stands accused of criticizing a judge in a private email. Ogden has not been charged with a criminal offense.


William Conour, the Indianapolis attorney who pleaded guilty to wire fraud this year after stealing from clients, resigned from the bar in June 2012. Until then, the disciplinary commission also listed him as “active in good standing”—despite complaints from a former partner dating back at least four years.
Michael Witte, Executive Secretary
The IBJ's criticism of the Disciplinary Commission is actually quite mild given how the Commission has operated.  In the past, the Disciplinary Commission has suspended attorneys at the time of a felony guilty plea.  In fact, the Commission has zealously and successfully sought the suspension of attorneys for alleged criminal offenses that were never charged by state or federal prosecutors.  On the flip side, an Indiana attorney was found to have hidden over $1 million in legal income and yet was never publicly charged by the Commission. 

I've written about how big firm attorneys, including those who work at Barnes and Thornburg which hired former DC Executive Secretary Donald Lundberg as a partner, never seem to charged by the Commission.  My study of Lundberg's last three years at the Commission revealed 397 of the 400 public disciplinary decisions were against small firm attorneys or sole practitioners.

If there is one consistency with how the Commission is being operated under the leadership of Executive Secretary Michael Witte, a former Dearborn County judge, is that, if you dare to challenge a judge directly or indirectly, you could well find yourself a target of the Commission.  I learned this weekend that two northern Indiana attorneys have disciplinary charges pending against them for daring to ask for a recusal of a St. Joseph County judge for a perceived conflict in hearing a criminal case involving abortion protesters.  The Commission's actions in those cases strike at the heart of the right of attorneys to zealously represent their clients.

Ultimately it comes down to a question of priorities.  The priority of the Commission should be protecting the public, not protecting judges and other public officials from criticism.  Besides being criticizing the Commission for misplaced priorities, we attorneys should demand that the Commission respect the First Amendment rights of attorneys. 

Most of the blame falls at the poor leadership and misplaced priorities of Executive Secretaries Donald Lundberg and Michael Witte.  But they are not solely to blame.  There is a nine member board that has to sign off on the charging decisions of the Executive Secretary.  Those board members could put a stop to the targeting of attorneys for criticizing judges or asking for their recusal.  Those board members could insist that the priorities of the Commission be protecting the public from dishonest attorneys.   They have failed to do that.

Further, it appears that the Disciplinary Commission board members do a very poor job of reviewing cases before approving charges that are filed.  Exhibit A is the fact that one of the charges the Commission filed against me is a charge of trying to influence a judge through an ex parte communication.  If the board members would have simply reviewed the letter I sent which notes at the bottom of the document that it was being copied to the very people involved in the issue I was raising, they should have voted down the charge as meritless.  But because board members failed to do their job, I now have to spend time and money defending a charge filed by the Commission that on its face is utterly without merit.  

I should also mention that one of the board members is an attorney that I filed a grievance against years earlier.  Apparently he did not bother to recuse himself and participated in the vote to file charges against me. Of course, it is hard to get that information since the Commission operates in secrecy. 

For the record, below is a list of who is on the Commission. We in the legal profession need to insist that these board members do a better job than they are doing now.  The IBJ is right.  The No. 1 priority of the Commission should be protecting the public from unethical attorneys.  Right now it is not.


Catherine A. Nestrick, Chair
Berry Plastics Corporation
William Anthony Walker, Vice Chair
Attorney at Law

Nancy L. Cross, Secretary
Cross, Pennamped, Woolsey & Glazier, P.C.

Andrielle M. Metzel, Treasurer
Benesch, Friedlander, Coplan & Aronoff LLP
Maureen Grinsfelder
Fort Wayne

Trent A. McCain
McCain & White, PC
R. Anthony Prather
Barnes & Thornburg LLP

Leanna K. Weissmann
Attorney at Law
Kirk White