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HomeMy WebLinkAbout02-09-76 Council Meeting MinutesREGULAR MEETING FEBRUARY 9, 1976 Be it remembered that the Common Council of the City of South Bend met in the Council Chambers I of the County -City Building on Monday, February 9, 1976, a t 7 :00 p .m., Council President Roger 0. Parent presiding. The meeting was called to order and the Pledge to the Flag was given. ROLL CALL PRESENT: Councilmen Serge, Szymkowiak, Miller, Taylor, Kopczynski, Adams, Dombrowski, Horvath and Parent. ABSENT: None At this time, Council President Parent asked for a motion by the Council to suspend rules, in order that appointees could be sworn 'in to their respective appointments. Councilman Taylor made a motion to suspend the rules, seconded by Councilman Horvath. The motion carried by a roll cal vote of nine ayes (Councilmen Serge, Szymkowiak, Miller, Taylor, Kopczynski, Adams, Dombrowski, Horvath and Parent). Councilman Taylor made a motion to resolve into the Committee of the Whole, seconded by Councilman Serge. The motion Carried. COMMITTEE OF THE WHOLE MEETING Be it remembered that the Common Council of the City of South Bend met in the Committee of the Whole on Monday, February 9, 1976, at 7:08 p.m., with nine members present. Chairman Horvath presided. REGULAR MEETING FEBRUARY 9, 1976 ORDINANCE AN ORDINANCE APPROPRIATING $15,000.00 FROM THE FEDERAL ASSISTANCE GRANT COMMONLY RE- FERRED TO AS GENERAL REVENUE SHARING, FOR VARIOUS PUBLIC WORKS PROGRAMS, TO BE ADMIN- ISTERED BY THE CITY OF SOUTH BEND THROUGH ITS DEPARTMENT OF PUBLIC WORKS. This being the time heretofore set for public hearing on the above ordinance, proponents and opponents were given an opportunity to be heard. Mr. Rollin Farrand, Director of the Department of Public Works, made the presentation for the ordinance. He indicated this ordinance was filed to cover the expense of renovating a building on the Plaza that will serve as office space for th River Bend Plaza Office and the Century Center Office. He said the office is currently housed in a building owned by the Department of Redevelopment, and is scheduled for demolition. He said the current building was in bad shape, and the heating ventilation and air - conditioning was in need of repair. He said it was their recommendation that no additional monies be spent-at that location. He said the cost to fix the present building was $5,000, without heat. Also there is need for more storage space for brick, lighting fixtures, chemicals, Christmas decorations, etc. He said with these problems in mind, it was decided to move to a new location that would better suit their needs. He said that taking into consideration the $5,000 needed to renovate the old location, the ordinance could be reduced to $9,300 and that he would recommend its passage at that amount. Mr. Gene Evans, Executive Secretary of the Civic Planning Association, asked if they intended to amend the ordinance. Councilman Horvath said he assumed this is what they would do. Mr. Evans said that in the past it had been the practice to amend before the public hearing. Councilman Miller indicated that they had not had a chance to debate this issue. Mr. Evans asked if they had picked a new location. Mr. Farrand indicated that if the ordinance was approved they would go into the building next to the Milady Shop. Mr. Evans asked if the Century Center was involved in this arrangement. Mr. Farrand indicated there was enough space to accomodate them. Councilman Miller asked how much was proposed for renovation. Mr. Farrand indicated the figure h was working with was $11,000, and that we have a three year lease. Councilman Miller asked if the building was in a location where if the super -block was constructed, would it be constructed over that area. Mr. Farrand indicated that to the best of his knowledge it was in that location. Councilman Miller asked if they anticipated taking any money from Services Contractual for River Bend Plaza for some of the renovation. Mr. Farrand indicated that roughly $6,000 will be taken out of that budget. Councilman Miller indicated he could not see supporting that much money going into another building, that locks us up for three years, it is too much money. Councilman Adams, said it was her understanding that we would not have to house Century Center. Councilman Miller said that the Century Center Board felt they could handle the $3,900 for this year. Councilman Adams asked if they could pare this to $3,000 for Doug Simpson. Mr. Farrand indicated it would be close to that. Councilman Adams said that Mr. Farrand had indicated the remodeling would be $11,000, and when they had discussed this subject Mr. Farrand told her that $8,000 would be for Mr. Everett, however, since they were not going to put Mr. Everett there, they would only need $3,000, so they could cut $3,000. Mr. Farrand indicated he would still like to get that $400 back in there that he had paid for heat. Councilman Adams said that he'. -mas then asking for $9,700, and if they eliminated the remodeling for Century Center, they were tlking about $1,700. Councilman Adams made a motion to amend this ordinance from $15,000 to $1,700, seconded by Councilman Dombrowski. The motion carried. Council President Parent made a motion that the ordinance be recommended favorably to the Common Council, as amended, seconded by Councilman Szymkowiak. The motion carried. ORDINANCE AN ORDINANCE AMENDING ORDINANCE NO. 5820 -75 ESTABLISHING A MERIT SYSTEM OF PROMOTIONS FOR THE BUREAU OF POLICE OF THE CITY OF SOUTH BEND. This being the time heretofore set for public hearing on the above ordinance, proponents and opponents were given an opportunity to be heard. Mayor Peter J. Nemeth asked that this ordinance be referred back to Committee. He said there would be other amendments and he would like to have it complete rather than piecemeal. Councilman Taylor made a motion to refer the ordinance back to the Public Safety Committee, seconded by Councilman Adams. The motion carried. ORDINANCE AN ORDINANCE APPROPRIATING $200,000 FROM�THE FEDERAL ASSISTANCE GRANT COMMONLY REFERRED TO AS GENERAL REVENUE SHARING, FOR VARIOUS PUBLIC WORKS PROGRAMS, TO BE ADMINISTERED BY THE CITY OF SOUTH BEND THROUGH ITS BUREAU OF STREETS. This being the time heretofore set for public hearing on the above ordinance, proponents and opponents were given an opportunity to be heard. Mr. Rollin Farrand, Director of the Public Works, made the presentation for the ordinance. He said that during 1974 and 1975 there were insufficient funds available through Motor Vehicle Highway taxes to support the programs of the department. He said it was necessary that the Council approve Revenue Sharing funds both years. He said that they were short funds in 1976 to allow them to continue street and alley maintenance improvements. He said that they will need a minC-num of $500,000, however, they were only asking for $200,000 at this time. He said they were asking the Council to approve the $200,000 with the thought in mind that they may be returning to request the additional $300,000 needed within the next year. Mrs. Irene Mutzl, 320 Parkovash, said that she felt this was good use for Revenue Sharing money. She said she was hearing good things about the way the Street Department cleaned after the snow. Councilman Szymkowiak made a motion that the ordinance be recommended favorably to the Common Council, seconded by Councilman Taylor. The motion carried. There being no further business to come before the Committee of the Whole, Councilman Kopczynski made a motion to rise and report to the Council, seconded by Councilman Taylor. The motion Carried. ATTEST: ATTEST: -City Clerk Chairman REGULAR MEETING FEBRUARY 91 1976 REGULAR MEETING - RECONVENED Be it remembered that the regular meeting of the Common Council of the City of South Bend recon- vened in the Council Chambers at 7:30 p.m., Council President Parent presiding and nine members present. REPORT FROM THE SUB- COMMITTEE ON MINUTES To the Common Council of the City of South Bend: Your sub - committee on the inspection and supervision of the minutes would respectfully report that it has inspected the minutes of the February 9, 1976, meeting of the Council and found them correct. The sub - committee, therefore, recommends that the same be approved. S/ Roger O. Parent Councilman Taylor made a motion that the report be accepted as read, placed on file and the minutes be approved, seconded by Councilman Dombrowski. The motion carried. REPORT FROM THE COMMITTEE OF THE WHOLE Councilman Kopczynski made a motion to waive the reading of the report of the Committee of the Whole, seconded by Councilman Taylor. The - motion carried by a roll call vote of nine ayes (Councilmen Serge, Szymkowiak, Miller, Taylor, Kopczynski, Adams, Dombrowski, Horvath and Parent) Councilman Taylor made a motion to set the report and accompanying ordinance for public hearing on February 23, seconded by Councilman Horvath. The motion carried. PETITION TO AMEND ZONING ORDINANCE (1829 S. Ironwood Drive) I, the undersigned, do hereby respectfully make application and petition the Common Council of the City of South Bend, Indiana, to amend the Zoning Ordinance of the City of South Bend as hereinafter requested, and in support of this application, the following facts are shown: 1. The property sought to be rezoned is located at: 1829 S. Ironwood Drive South Bend, Indiana 46613 2. The property is owned by: Bel Air Realty, Inc. 3. A legal description of the property is as follows: A lot or parcel of land 85 feet in length, East and West, Taken off of and from the entire width of the East end of Lot Numbered Sixty -four (64) as shown on the Recorded Plat of Rose- land Park, an addition to the City of South Bend. 4. It is desired and requested that the foregoing property be rezoned: From "A" Residential Use and "A" Height and Area District To "C -1" Commercial Use and "E" Height and Area District. 5. It is proposed that the property will be put to the following use and the following building (s) will be constructed (Include number of dwelling units, if residential): Real Estate Office 6. Number of off - street parking spaces to be provided: Six (6) 7. Attached is (a) petition and 20 plan showing my and addresses o property within (f) 5 copies of an original ordinance and 25 copies ;. (b) an original copies: (c) a $10 filing fee; (d) an existing plot property and other surrounding properties; (e) names E all the individuals, firms or corporations owning 300 feet of the property sought to be rezoned; and a site development plan. s/ Robert E. Burger, Pres. Signature of Petitioner (s) 1829 So. Ironwood Dr. South Bend, Indiana 46613 Address Petition Prepared By: Philip- Schiff -Sec. PETITION TO AMEND ZONING ORDINANCE (723 LaPorte Ave.) We, the undersigned, do hereby respectfully make application and petition the Common Council of the City of South Bend, Indiana, to amend the Zoning Ordinance of the city of South Bend, Indiana as hereinafter requested, and in support of this application, the following facts are shown: 1. The property sought to be rezoned is located at: 723 LaPorte Ave. South Bend, Indiana At the intersection of LaPorte Ave. and Wilber St. REGULAR MEETING FEBRUARY 9, 1976 PETITION TO AMEND ZONING ORDINANCE CONT'd. 2. The property is owned by Trucut Tool & Supply Co., Inc. 3. A legal description of the property is as follows: Lot Numbered Four (4) and Lot Numbered Five (5) as shown on the recorded Plat of Mayr's LaPorte Avenue Addition to the City of South Bend, in St. Joseph County, Indiana, excepting there from a tract of land described as beginning at the most Northerly corner thereof, being also the intersection of LaPorte Avenue and Wilbur Street, running thence South Ten (10) feet along the West line of said Lot Numbered Five (5); thence Northeasterly to the Northeasterly Aide of said Lot Numbered Five (5) at a point which is Ten (10) feet Southeasterly from the place of beginning; thence Northwesterly Ten (10) feet to the place of beginning. 4. It is desired and requested that the foregoing property be rezoned: From "B" Residential Use and "A" Height and Area District To "D" Light Industrial Use and "E" Height and Area District 5. It is proposed that the property will be put to the following use and the following building (s) will be constructed (include number of dwelling units if residential) Industrial Distribution office space in one (1) building and parking lot. 6. Number of off - street parking spaces to be provided. (6) Six 7. Attached is a copy of (a) an existing plot plan showing my property and other surrounding properties; (b) names and addresses of all the individuals, firms or corporations owning property whithin 300 feet of the property sought to be rezoned; and (c) site development plan. s/ Edwin W. Forrest, President s/ James F. Forrest, V.P. Signature of Petitioner (s) 721 LaPorte Ave., So. Bend, In. Address Petition Prepared by: James F. Forrest PETITION TO AMEND ZONING ORDINANCE (Southwest corner of S. Mich. St. & East Chippewa) (Chippewa Knoll.) We, the undersigned, do hereby respectfully make application and petition the Common Council of the City of South Bend, Indiana, to amend the Zoning Ordinance of the City of South Bend as hereinafter requested, and in support of this application, the following facts are shown: 1. The property sought to be rezoned is located at: Southwest corner of South Michigan Street and East Chippewa known as Chippewa Knoll. 2. The property is owned by: Hartwig & Locker, No. IX, An Indiana Partnership. 3. A legal description of the property is as follows: A "tract of land in the Northwest Quarter (1/4) of Section 25, Township 37 North, Range 2 East in the City of South Bend, St. Joseph County, Indiana, more particularly described as follows: Beginning at the point of intersection of the present South line of Chippewa Avenue and the East line of South Main Street in the City'of South Bend, said point of beginning being 50 feet South of the centerline of Chippewa Avenue and 30 feet East of the centerline of South Main Street; thence Southerly along the East line of South Main Street, a distance of 720.80 feet to a point 300 feet North of the North line of Albert Street; thence East parallel with the North line of Albert Street, a distance of 331.13 feet more or less to the West line of South Michigan Street, said point being 50 feet West of the centerline of South Michigan Street; thence Northerly along the West line of South Michigan Street, a distance of 481.68 feet to a point of curve; thence Northwetterly along a curve to the left, said curve having a radius of 218.87 feet, an arc distance of 367.42 feet to the South line of Chippewa Avenue; thence West along said South line, a distance of 104.17 feet to the point of beginning, containing 5.31 acres. Said tract of land herein described being the same parcel as that described in Deed Record H 1 1 1 1 REGULAR MEETING FEBRUARY 9, 1976 PETITION TO AMEND ZONING ORDINANCE CONT'D. 635, page 363 in the office of the Recorder, St. Joseph County, Indiana, subject to legally dedicated rights -of -way. except and excluding therefrom the following: Beginning at the point of intersection of the present South line of Chippewa Avenue and the East line of South Main Street in the City of South Bend, said point of beginning being 50 feet South of the centerline of Chippewa Avenue and 30 feet East of the centerline of South Main Street; thence Southerly along the East line of South Main Street, a distance of 295.00 feet; thence East along a line with a deflection angle to the left of 94046'40 ", said line being parallel with the South line of Chippewa Avenue, a distance of 340.75 feet to the West line of South Michigan Street; thence Northerly along said West line of South Michigan Street, a distance of 51.84 feet to a point of curve; thence Northwesterly along a curve to the left, said curve having a radius of 218.87 feet, an arc distance of 367.42 feet to the South line of Chippewa Avenue; thence West along said South line, a distance of 104.17 feet to the point of beginning, containing 2.03 acres. plus: A lot or pacel of land bounded by a line running as follows: Beginning on the West line of the Michigan Road at a point Seven Hundred Fifty (750) feet Southerly from the South line of Chippewa Avenue; thence Southerly with the West line of the Michigan Road One Hundred (100) feet; thence West Three Hundred Twenty (320) feet, more or less, to the East line of Main Street; thence North One Hundred (100) feet; thence East to the place of beginning and being Lots Numbered Seventy -one (71) and Sevety -two (72) on the proposed plat of Chippewa Heights in Center Township, being in the Northwest Quarter (4) of Section Twenty -five (25), Twonship Thirty -seven (37) North, Range Two (2) East in St. Joseph County, Indiana 4. It is desired and requested that the foregoing property be rezoned: From C Commercial Use and A Height and Area District To C -2 Commercial Use and Height and Area District. 5. It is proposed that the property will be put to the following use and the following buildings will be constructed (Include number of dwelling units, if residential): A restaurant, a carpet store, and other retail outlets generally permitted in the C -2 Commercial zoning classification. 6. Number of off - street parking spaces to be provided: Two Hundred Ninety One (291) 7. Attached is (a) an original ordinance and 25 copies; (b) an original petition and 20 copies; (c) a $10 filing fee; (d) an existing plot plan showing my property and other surrounding properties; (e) names and addresses of all the indviduals, firms or corporations owning property within 300 feet of the property sought to be re- zoned; and (f) 5 copies of a site development plan. S1 Frank Hartwig s/ James P. Locker Signature of Petitioner (s) 226 W. Colfax Ave.,South Bend,IN46601 Address Petition Prepared By: James P. Locker ORDINANCES, SECOND READING ORDINANCE NO. 5948 -76 AN ORDINANCE APPROPRIATING $1,700.00 FROM THE FEDERAL ASSISTANCE GRANT COMMONLY RE- FERRED TO AS GENERAL REVENUE SHARING, FOR VARIOUS PUBLIC WORKS PROGRAMS, TO BE ADMIN- ISTERED BY THE CITY OF SOUTH BEND THROUGH ITS DEPARTMENT OF PUBLIC WORKS. This ordinance had second reading. Councilman Taylor made a motion to amend the ordinance as amended in the Committee of the Whole, seconded by Councilman Serge. The motion carried. Councilman Horvath then made a motion to pass the ordinance, as amended, seconded by Councilman Taylor. The ordinance passed by a roll call vote of nine ayes (Councilmen Serge, Szymkowiak, Miller, Taylor, Kopezynski, Adams, Dombrowski, Horvath and Parent). ORDINANCE AN ORDINANCE AMENDING ORDINANCE NO. 5820 -75 ESTABLISHING A MERIT SYSTEM OF PROMOTIONS FOR THE BUREAU OF POLICE OF THE CITY OF SOUTH BEND. This ordinance had second reading. Councilman Taylor made a motion to refer the ordinance to the Public Safety Committee, seconded by Councilman kopczynski. The motion carried. ORDINANCE NO. 5949 -76 AN ORDINANCE APPROPRIATING $200,000 FROM THE FEDERAL ASSISTANCE GRANT COMMONLY REFERRED TO AS GENERAL REVENUE SHARING, FOR VARIOUS PUBLIC WORKS PROGRAMS, TO BE ADMINISTERED BY THE CITY OF SOUTH BEND THROUGH ITS BUREAU OF STREETS. REGULAR MEETING FEBRUARY 9, 1976 ORDINANCES, FIRST READING (CONTINUED) This ordinance had second reading. Councilman Adams made a motion to pass the ordinance, seconded by Councilman Kopczynski. The ordinance passed by a roll call vote of nine ayes (Councilmen Serge, Szymkowiak, Miller, Taylor, Kopczynski, Adams, Dombrowski, Horvath and Parent) . RESOLUTIONS RESOLUTION NO. 505 -76 A RESOLUTION OF THE COMMON COUNCIL OF THE CITY OF SOUTH BEND AUTHORIZING THE BOARD OF PUBLIC WORKS TO NEGOTIATE THE SALE OF A PARCEL OF LAND THIRTY -EIGHT AND THREE TENTHS (38.3) FEET IN WIDTH, NORTH AND SOUTH TAKEN OFF OF AND FROM THE SOUTH END OF LOTS NUMBERED ONE HUNDRED TWENTY -SIX (126) AND ONE HUNDRED TWENTY -SEVEN (127) AS SHOWN ON THE RECORDED PLAT OF KAUFFMAN PLACE ADDITION TO THE CITY OF SOUTH BEND, IN ST. JOSEPH COUNTY, INDIANA COMMONLY KNOWN AS 1711 LONGLEY. WHEREAS, the Board of Public Works of the City of South Bend, pursuant to the Municipal Code of the City of South Bend, Chapter 30 A, has offered for sale a parcel of land thirty -eight and three tenths (38.3') feet in width, north and south taken off of and from the South end of Lots numbered one hundred twenty -six (126) and one hundred twenty -seven (127) as shown on the recorded plat of Kauffman place addition to the City of South Bend in St. Joseph County, Indiana, commonly known as 1711 longley, at an offer- ing price of $575.00, and WHEREAS, the Board of Public Works of the City of South Bend has now received an offer to purchase the property at 1711 Longley for a price of $200.00, with the additional commitments to repair the broken sidewalk and curbing,.to reasonably landscape this pro- perty; and to remove all trash, debris, and weeds from the property within a period of thirty (30) days, and WHEREAS, the Board of Public Works has now complied with all requirements of the Municipal Code of the City of South Bend, Chapter 30A, which establishes procedures for the disposition of real property owned by the City of South Bend, and more specifically real property valued by the Board at less than $1,000. NOW, THEREFORE, BE IT RESOLVED, by the Common Council of the City of South Bend that: SECTION I. The Board of Public Works be authorized to negotiate a contract for the sale of A parcel of land Thirty -eight and Three Tenths_ (38.3') feet in width, north and south, taken off of and from the South end of Lots Numbered One Hundred Twenty -six (126) and One Hundred Twenty -seven (127) as shown on the recorded Plat of Kauffman Place Addition to the City of South Bend, in St. Joseph County, Indiana commonly known as 1711 Longley, for a total price of $200.00, with the contract to stipulat that the purchaser will repair the broken sidewalk and curbing, and will reasonably land- scape this property and will remove all trash, debris, and weeds from the property with- in a period of thirty (30) days from the date of the contract. SECTION II. This resolution shall be in full force and effect from and after its adoption by the Common Council and approval by the Mayor. sf Mary Christine Adams Member of the Common Council A public hearing was held at this time on the resolution. Mr. Rollin Farrand, Director of the Board of Public Works indicated there was an offer of $200 to buy the property. He said the proposed buyer had indicated there would be a considerable expense in leveling the land, repairing the sidewalks and curbing, as well as removal of trash, debris and weeds from the prperty. Mr. Farrand indicated that the Board of Public Works recommended the sale of the property at this price, based on the buyer making the improvements. Councilman Serge asked Mr. Farrand if they would notify people when they have'a burn -out, that the people are entitled to bid. Councilman Szymkowiak made a motion to adopt the resolution, seconded by Councilman Dombrowski. The resolution was adopted by a roll call vote of nine ayes (Councilmen Serge, Szymkowiak, Mille3 Taylor, Kopczynski, Adams, Dombrowski, Horvath and Parent). RESOLUTION A RESOLUTION OF THE COMMON COUNCIL REQUESTING COMMITTEE OF THE WHOLE REPORT ON COUNCIL ETHICS WHEREAS, an issue has been made public concerning the actions of members of the council; and WHEREAS, THIS REFLECTS detrimentally on the public image of the council; and C U 1 REGULAR MEETING FEBRUARY 9, 1976 RESOLUTIONS (CONTINUED) WHEREAS, the council rules have not adequately covered council procedures and decorum. NOW, THEREFORE, BE IT RESOLVED by the Common Council of the City of South Bend, Indiana; that the Committee of the Whole Council shall: SECTION 1. Submit a report to the council reviewing the incident in the caucus room o e Common Council on January 19, 1976, and report any violation of council rules. SECTION 2. Submit a report suggesting a code of ethics for the South Bend Common Council and any necessary changes in council rules and procedures. SECTION 3. To provide for an orderly and fair evaluation, the following procedures shall be established; a) Any hearings held by the committee which include the discussion of personalities or alledged violations of council rules shall be private sessions. b) The council attorney shall be present to rule on procedures and any member of the council may be advised by an attorney. C) The committee report shall be drafted by the council attorney subject to approval by the committee. SECTION 4. This Resolution shall be in full force and effect from and after its adoption by the Common Council and its approval by the Mayor of the City of South Bend, Indiana. s/ Terry S. Miller Member of the Common Council A public hearing was held at this time on the resolution. Councilman Taylor indicated that he was going to recommend that the Council table this particular resolution. He said they were all aware we are going to be hearing later on in the meeting from the city attorney's of- fice and also from our Council attorney. He said he realized the resolution did not deal with any incident, but it was his hope that for the good of the city and for the Council that they were able to find some vehicle that would allow them to shed light on the entire incident. He said he thought the public and the Council would like this brought to light as quickly as pos- sible, and get on with the business of the city. A matter of ethics could quite likely take us weeks or months. He said that therefore he would make a motion to take this resolution, Councilman Horvath seconded the motion. The resolution was tabled by a roll call vote of'six ayes (Councilmen Serge, Szymkowiak, Taylor, Dombrowski, Horvath and Parent) two nays (Councilmen Miller and Adams) one abstention (Councilman Kopczynski). Council President Parent announced that the procedure for abstention, is that the Council has to approve whether a Councilman will be permitted to abstain. Councilman Adams made a motion that Councilman Kopczynski be allowed to abstain, seconded by Councilman Szymkowiak. The motion carried, with Councilman Miller opposing. ORDINANCES, FIRST READING ORDINANCE AN ORDINANCE DESIGNATING AND ESTABLISHING AN HISTORIC LANDMARK UNDER ORDINANCE NO. 5565 -73, AMENDING ORDINANCE NO. 4990 -68, AS AMENDED, COMMONLY KNOWN AS THE ZONING ORDINANCE OF THE CITY OF SOUTH BEND. This ordinance had first reading. Councilman Taylor made a motion to set the ordinance for public hearing and second reading on February 23, 1976, seconded by Councilman Horvath. The motion carried. ORDINANCE AN ORDINANCE AMENDING CHAPTER 2, ARTICLE 10 OF THE MUNICIPAL CODE OF THE CITY OF SOUTH BEND, INDIANA, BY THE ADDITION OF SECTION 2 -47B PERTAINING TO REIMBURSEMENTS FOR ELECTIVE AND APPOINTIVE OFFICIALS, EMPLOYEES, AND COUNCIL MEMBERS. This ordinance had first reading. Councilman Adams made a motion to refer the ordinance to the Administration and Finance Committee, and to set the ordinance for public hearing and second reading February 23, 1976, seconded by Councilman Taylor. The motion carried. ORDINANCE AN ORDINANCE TO APPROPRIATE $112,500 FROM THE LOCAL ROAD AND STREET FUND AND $12,500.00 FROM LINE ITEM 260.0 OF THE CUMULATIVE CAPITAL IMPROVEMENT FUND TO PROJECT R &S 48, PHASE III, IRONWOOD ROAD FROM APPROXIMATELY 500' SOUTH OF INWOOD ROAD NORTH TO NORTH OF RIDGEDALE ROAD. This ordinance had first reading. Councilman Horvath made a motion to set the ordinance-for public hearing and second reading on February 23, 1976, seconded by Councilman Taylor. The motion carried. REGULAR MEETING ORDINANCES. FIRST READING (CONTINUED) ORDINANCE AN ORDINANCE TO APPROPRIATE $700,000.00-FROM THE LOCAL ROADS AND STREETS FUND AND $100,000.00 FROM THE CUMULATIVE SEWER BUILDING AND SINKING FUND TO PROJECT R &S 85, MAPLE ROAD FROM LATHROP ROAD TO CLEVELAND ROAD. FEBRUARY 9, 1976 This ordinance had first reading. Councilman Taylor made a motion to set the ordinance for publ hearing and second reading on February 23, 1976, seconded by Councilman Serge. The motion carri ORDINANCE AN ORDINANCE TRANSFERRING THE SUM OF $250,000 BETWEEN VARIOUS ACCOUNTS IN THE CUMULATIVE CAPITAL IMPROVEMENT FUND OF THE CITY OF SOUTH BEND, INDIANA. This ordinance had first reading. Councilman Adams made a motion to set the ordinance for publi hearing and second reading on February 23, 1976, seconded by Councilman Taylor. The motion carr ORDINANCE AN ORDINANCE APPROPRIATING $35,000.00 FROM THE FEDERAL ASSISTANCE GRANT COMMONLY REFERRED TO AS GFjNERAL REVENUE SHARING, FOR VARIOUS FIRE EQUIP- MENT, TO BE ADMINISTERED BY THE CITY OF SOUTH BEND THROUGH ITS BUREAU OF FIRE SAFETY. This ordinance had first reading. Councilman Adams made a motion to refer this ordinance to the Public Safety Committee, and to set it for public hearing and second reading on February 23, 197 seconded by Councilman Taylor. The motion carried. ORDINANCE AN ORDINANCE AMENDING AND SUPPLEMENTING CHAPTER 40 OF THE MUNICIPAL CODE OF SOUTH BEND, INDIANA (1829 S. Ironwood Drive). This ordinance had first reading. Councilman Taylor made a motion to refer the ordinance, along with the petition, to the Area Plan Commission, seconded by Councilman Adams. The motion carrie ORDINANCE AN ORDINANCE AMENDING AND SUPPLEMENTING CHAPTER 40 OF THE MUNICIPAL CODE OF SOUTH BEND, INDIANA (723 LAPORTE AVENUE). THIS ORDINANCE HAD FIRST READING. Councilman Horvath made a motion to refer the ordinance, alon with the petition, to the Area Plan Commission, seconded by Councilman Taylor. The motion carri ORDINANCE AN ORDINANCE AMENDING ORDINANCE NO. 4990 -68, AS AMENDED, COMMONLY KNOWN AS THE ZONING ORDINANCE OF THE CITY OF SOUTH BEND, INDIANA (CHAPTER 21, MUNICIPAL CODE). (Southwest corner of South Michigan Street and East CHIPPEWA Knoll) This ordinance had first reading. Councilman Dombrowski made a motion to refer the ordinance, along with the petition, to the Area Plan Commission, seconded by Councilman Serge. The motion carried. PRIVILEGE OF THE FLOOR Mrs. Irene Mutzl, 320 Parkovash, asked if the public would be able to speak on item 14, New Business, or should she speak right now. Council President Parent said that the motion was such there is no requirement for public hearing. Mrs. Mutzl asked for privilege of the floor and read a letter written by Conchita M. Washington, who was ill and could not attend the meet- ing. Mrs. Washington's letter said that - "The voters and taxpayers of the City of South Bend, elected and or re- elected you over your opponents, because, they were lead to believe that you would place their welfare and the duties of your office above all else. You.promised to uphold and defend the Constitution of the land, and to put personal matters in second place while representing us. The members of the South Bend City Council, while representing the City of South Bend, have no business or right to get involved in personal or,personality conflicts of individual members of the Council. There is absolutely no need for a resolution or ordinance to be passed concerning same or because of the matter of Robert Taylor VS Walter Kopczynski. Both Robert Taylor and Walter Kopczynski are very capable of handling the situation, which is cer- tainly a civil matter. The appropriate charges have apparently been filed by Robert Taylor and Walter Kopczynski has acted by retaining legal counsel. It is now up to Robert Taylor and Walte Kopczynski and their legal advisors as to the proper follow -up. NOT THE MEMBERS OF THE CITY COUNCIL! It is however, the responsibility of the City Council to get on with the business of representing the Citizens of South Bend and taking care of Council business. As far as Robert Taylor and Walter Kopczynski are concerned, if Roberts' Rule of Order and the Rules On Council Procedure cannot make clear their conduct at City Council Meetings and Gatherings - then let me attempt to do so. To behave like true gentlemen holding their position in highest esteem at all times. Try setting at opposite ends of the table and speak only on Council Business. Let personal feelings and statements remain unexpressed when and while attending to the Cities business, after all the taxpayers and voters of this City elected and are paying you to conduct their business." Mrs. Mutzl also read the following letter she had written: As we are gathered here tonight con- templating the disagreement among members of our city council, our whole nation reeks of moral deterioration and lack of confidence in our government leaders. You are not only hurting your- selves but our whole community. As the administration tries to bring business to South Bend and build our city and economy, your conduct does not help. Seasoned council watchers know exactly how you choose sides. Had it been different, we would have been happily surprised. We remind you that last year the council almost doubled the salaries of its members, which, in one month, proves more money does not necessarily mean better government. d. u D 1 1 i REGULAR MEETING FEBRUARY 9, 1976 PRIVILEGE OF THE FLOOR (CONTINUED) The public that we have interviewed supports Mr. Kopczynski in his dedication for accountability to them. Council President Parent said that he would like her not to mention either support or non - support of any Councilman at this point. He said they were going to be ruling again on an investigation. Mrs. Mutzl said she understood this, however, at one time Council President Parent had written her a letter that she had interupted him seven times, and that if he had not interupted her now she would have been finished in a couple of sentences. She ask Council President Parent if she could continue, and he said she could finish. Mrs. Mutzl finished her statement by indicating that they could go to court if they deemed necessary, but as a Council please conduct city business. She indcated that Mr. Kopczynski could no more get an impartial review on this Council than a snowball on a hot stove. She said that for the good of the city, would the Council please forget the whole thing. Council President Parent said that first of all the public may think the Council was only occupied with the matters-of this investigation, but that was not true. He said he was taking care of the day to day matters as he normally does. Mrs. Jane Swan, 2022 Swygart, said that she was speaking now in case there would be no public discussion allowed later. She said she would like to go to Councilman Taylor's press release where there was a mention of a thorough and impartial investigation. She said that impartial means free from partiality and unbiased. She indicated there were nine men sitting there, two of them very directly involved, therefore you have 220% that are not unbiased; Councilman Serge was not in attendance, which brings it up to 33 %; Councilman Horvath has taken a stand, 44% who are not unbiased. She said she would not try to second guess Councilmen Dombrowski and Parent, but Councilwoman Adams has made it clear how she felt regarding this being a political matter. She said that Councilman Miller indicated he did not feel the Council has the jurisdiction to investigate itself. She said that so far, Councilman Szymkowiak, seemed to be completely un- biased. She asked how an impartial investigation of the situation could possibly be made. She said she would like to ask Councilman Dombrowski something regarding comments made at the last caucus meeting, where he indicated he did not intend to sit on the Council and have it act like it did the last four years. She said she had attended 800% of those meetings and she would like to know on what he based his remark. Councilman Dombrowski said there were many shouting matche and asked how many she had seen. Mrs. Swan asked Councilman Dombrowski how many he had seen, be- cause she was there. Councilman Dombrowski said he had seen quite a few, he said he had seen finagling in which Mrs. Swan was involved. Mrs. Swan asked Councilman Dombrowski to explain thi Councilman Dombrowski indicated that it was on the minutes. Council President Parent said they were not going to tolerate any debating, and asked Mrs. Swan to make her point. Mrs. Swan said she had attended the meetings and had not seen Councilman Dombrowski. She said that an impartial investigation could not be conducted by this Council. Ben Johnson, representative of the Southeast Neighborhood, said he would like to comment on the nature of the rehab work that is being done. He said it is so messed up, they feel they should not have participated in the program. He said the Southeast Side is the only area that has three Councilmen. He said the rehab program has been a disaster on the Southeast Side of town, and they think there needs to be an investigation. Council President Parent said the Council was in the process of studying various problems on Community Development funds. He said he would ask Mr. Gilkey to look into this. Mrs. Elsie Breit, 3017 W. Ford, read the following statement: It has been very noticeable for several months that five men on our City Council became a group or a so called "team ". I wish to emphasize that Councilman Miller is not one of them. If I recall correctly, they became a team of five at the time of the bicycle law. This occurred in the past administration, when former Mayor Jerry Miller and the present Mayor Peter Nemeth each proposed a law. The "team" voted to enforce, the Miller Bicycle Law. It was very obvious, to the people who attended the Council meetings, that from this time on they voted for everything that former Mayor Miller wanted or didn't want. There is one exception at the present time. We now have a new Council- man at Large, Richard Dombrowski. As the Tribune stated, he has been rewarded "with the vice presidency of the City Council for his vote in the presidency." As for the Council as a team; we wonder why Roger Parent, as president, doesn't put a stop to this action instead of acting as the leader. We now have a New Mayor and a New Administration. We strongly urge this group to disband, and start voting individually, the way they personally think would be for the good of the people of South Bend. After all, gentlemen, we are the ones who voted you in and pay your salary. You are there to work for us. Remember, at the next election, we can certainly vote you out again. Several people that I have talked to seem to think you are staying as a group to fight the present administration and vote against it, instead of with it, as you did in the past. Council President Parent said that the Council tends to go along with most things the administra- tion proposes. He said that in fact the differences were minimal. He said he would predict that this Council will work well with the administration. He said they would be an independent Council, but that is the way it was going to be. He said it was very difficult for the public to really know what was going on, and what the public heard in the media was really the tip of the iceburg. NEW BUSINESS Council President Parent said that as the chairperson of the Council he is not allowed to make a motion, and that he would ask for someone to make the motion he proposed. Councilman Taylor made a motion to ask the South Bend City Council to undertake a thorough and impartial inquiry of the incident which occurred between Councilmen Robert Taylor and Walter Kopczynski during the Council caucus held January 19,1976, seconded by Councilman Dombrowski. Council President Parent said he would entertain a motion that the discussion on this be kept to the Council, attorneys and the press. Councilman Horvath made such a motion, seconded by Councilman Taylor. Councilman Szymkowiak said he felt thepublic should be allowed to express their opinions. Councilman Adams said she felt the questions raised by the attorneys' opinions might be such that the public might want to speak, so she felt they should be allowed to speak, to the matter. Council President Parent attempted to explain the reasoning behind his motion, however, Councilman Adams called for a point of order, and said she believed the chair must REGULAR MEETING FEBRUARY 9, 1976 NEW BUSINESS (CONTINUED) refrain from discussing the motion. Council President Parent said that Roberts Rules does state he would have to get out of the Chair to have any discussion, and that he was willing to abide, but the tradition of this Council has allowed the chair to speak. He said if the pleasure of the Council was to follow Roberts Rules strictly he would relinquish the Chair to Vice President Dombrowski. Vice President Dombrowski chaired this portion of the meeting. Council President Parent indicated that the reason for such a motion was that what was before the Council was mainly and primarily a matter for the Council to resolve. He said it was mainly the business of the Council. Vice President Dombrowski said he would give the chair back, however, Councilman Adams called for a point of order, and said the Chair remains surrendered until a vote is taken. Council President Parent indicated they would follow the rules. Councilman Taylor said he would like to ask the city attorney if it was possible for Vice President Dombrowski to return the Chair if he so desires. Thomas Brunner, City Attorney, said it was his understanding that Councilman Adams has stated correctly. Council President Parent repeated his motion that the discussion on this issue be kept to the Council, attorneys and the press. A roll call vote was taken on the motion, Councilman Serge - aye, Councilman Szymkowiak -nay, Councilman Taylor -aye, Councilman Miller -nay, Councilman Kopczynski- abstain, Councilman Adams -nay, Councilman Dombrowski -aye, Councilman Horvath -aye. Council President Parent called for a point of order, he said he would make a motion that Councilman Kopczynski be allowed to abstain, seconded by Councilman Adams. Vice President Dombrowski called for a roll call vote on this motion, which passed with six ayes (Councilmen Szymkowiak, Taylor, Kopczynski, Adams, Horvath and Parent) and three nays (Councilmen Serge, Miller and Dombrowski). Council President Parent then voted on his motion, he voted aye. The motion passed with five ayes (Councilmen Serge, Taylor, Dombrowski, Horvath and Parent) three nays ( Szymkowiak, Miller and Adams) and one abstention (Councilman Kopczynski). Council President Parent resumed the Chair. He said hew ould like to point out that this has made a circus by adhering strictly to parliamentary procedure. He said it was unfair to use the parliamentary procedure to obstruct discussion, and that he resented this type of thing. Councilman Adams called for point of order, and said she did not believe it was in the realm of the Chair to make that type of statement. Council President Parent said he would rule in his favor, and if there is any question the Council can object. Council President Parent said that both the city attorneys and the Council attorneys have been asked to look into this matter, and at this time he would ask the city attorney to make his presentation. Thomas Brunner, City Attorney, said that he passed out a memo of law, which had been prepared in response to the request at the last caucus meeting. He said he thought thematter important enough to read it: You have by your motion of February 2, 1976, requested this office to fur- nish you with a statement of procedures which might be used in an investigation of the incident which occurred between Councilman Kopcq;ysnki and Councilman Taylor on January 19, 1976. Before that request can be addressed, we believe it is our responsibility as your statutory counsel to advise you regarding the legality of the contemplated investigation itself. It is clear the a common council has the power pursuant to statute to expel any of its own members for violatic of official duty and to declare the seat of any member vacant by reason of his disability to perform the duties of his office. I.C. 18- 1 -3 -5. In furtherance of this power it would appeal that a common council has the right to investigate one of its members in order to determine whether his actions merit explusion. I.C. 18- 1 -4 -2. The statutes do not, however, disclose a specific grant of power to common councils to conduct investigations of their membership when the stated objective of such an investigation is other than expulsion. Nor does our examination of the Municipal Code disclose the existence of --any such authority. This lack of specific power to investigate would lead us to the conclusion that a common council is power- less to discipline its membership other than by expulsion if it were not for the general auth- ority granted cities under the Indiana Powers of Cities Act. I.C. 18 41 -1.5 -1 - 18- 1- 1.5 -30. Section 23 of that act provides as follows: "The powers of cities as defined in this chapter (18- 1 -1.5 -1 - 18- 1- 1.5 -30) shall be construed liberally in favor of such cities. A specific enumeration, or failure to enumerate, particular powers of cities in section 1 (18- 1- 1.5 -1) of this chapter or in any other law shall not be construed as limiting in any way the general and residual powers conferred upon cities as stated in section 16 (18- 1- 1.5 -16) of this chapter. It is the intention of this chapter and the policy of the state to grant to cities full power and right to exercise all governmenza.i auznori-cy neceb5a..ry j-vj- the effective operation and conduct of government with respect to their municipal and internal affairs. The rule of law that cities have only those powers ex- pressly conferred by statute, necessarily implied or dispensable to the declared objects and purposes of the corporation, and that any fair doubt as to the existence of a power shall be resolved against the existence thereof, shall have no application to the powers granted to cities herein. B(I.C. 1971, 18- 1- 1.5 -23, as added by Acts 1971, P.L. 250, 1, p. 955.)." (Emphasis supplied). It may be reasonably argued that the underscored portion of the just - quoted section provides the statutory authority whereby a common council can assert a right to investigate the conduct of a member the conclusion of which investigation may result in punishment other than expulsion. Such section does not, however, establish due process procedures whereby the legitimate rights of an individual under investigation can be protected. The Indiana Powers of Cities Act addresses this general problem at Section 17 thereof, entitled "Methods and procedure" which Provides: J 1 1 1 1 REGULAR MEETING "Any power conferred upon a city by this chapter (18- 1 -1.5 -1 - 18- 1- 1.5 -30) or by any other law shall be exercised only in accordance with such method or procedure as may be provided by law. If no method or procedure is provided by law for the exercise of any such power, the common council of any city may, by ordinance, provide a method or procedure for the exercise of such power, and may limit the exercise of any power in any manner not in conflict with this chapter or any other law. (I.C. 971, 18- 1- 1.5 -17, as added by Acts 1971, P.L. 250, 1 1, p. 955.)." FEBRUARY 9, 1976 Presently no procedures exist whereby an investigation can be conducted of the January 19, incident involving Councilman Kopczynski and Councilman Taylor. If such procedures were to be developed they would have to be approved by ordinance as provided by Section 17. In view of the serious effect which a discipline proceeding can have on an elected representative'. reputation in the community, it is the opinion of this office that any procedures which are de- veloped by the Common Council for the internal discipline of its members in the future should be subject to strict due process guarantees. It is the further opinion of this office that the retroactive application of such strict due process guarantees to the January 19th incident raise serious questions relative to the right of the Council to punish a member for activities which occurred prior to the enactment of due process procedures. In view of the ex post facto nature of any procedure which might be developed to apply to an investigation of the January 19 in- cident it is the opinion of this office that any such investigation would likely be outside the scope of authority and jurisdiction of the Council since the rights of the Councilman to be investigated would be inadequately protected. Be advised that this memorandum of law is pro- vided pursuant to the direction of the Common Council and is not to be construed as a ratifica- tion of any prior action by the Common Council or any of its members relative to the January 19 incident nor is it to be construed as a willingness on the part of the City Attorney's office to furnish advice to the Common Council relative to this incident in the future except insofar as the Common Council is determined to be acting within the scope of its authority and jurisdic tion. Council President Parent then called upon the Council attorney to submit her report. Kathleen Cekanski, Council attorney, read her report: Powers of Common Councils in Second Class Cities to punish its own members for alledged disorderly behavior. I. INTRODUCTION Pursuant to your request of February 2, 1976, this memorandum sets forth much of the informa- tion discovered when researching the above - entitled topic. It is divided into seven (7) main sections, namely: I. Introduction, II. Issues Presented, III. Federal Precedents, IV. The State of Indiana, V. The City of South Bend, VI. Conclusion and Recommendations, VII. Biblio graphy. In order to have a thorough understanding of many of the practical and legal issues involved, it is requested that each council member review in its entirety the entire memoradum before taking any action on this topic. II. ISSUES PRESENTED (1) Do legislators at the Federal level have the right to discipline one of its own members? (See III) (2) Do legislator at the state level have the right to discipline one of its own members? (see IV) (3) Do common councils of second class cities within the state of Indiana have the right to discipline one of its own members? (see V) III. FEDERAL-PRECEDENTS The question of whether a legislature has the right to inquire into and possibly discipline its own members is addressed in the U.S. Con- stitution. Article I, Section 5, Clause 2 provides: Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and with the concurrence of two - thirds expel a member. It is from this provision that our legislative branch gains self - regulations. The Supreme Court case of Powell vs. McCormack, 395 U.S. 486 (1969) is most applicable. This case involved the question of whether Adam Clayton Powell, Jr., who was duly elected to serve in the U. S. House of Representatives for the 90th Congress, could be excluded from his seat based on the allegations of misappropriation of public funds and abuse of process-in the New York courts. The _Supreme Court held in a declaratory judgment that this exclusion was unlaw- ful, IBID, p. 489. However, the constitutional aspects of the Powell case give excellent stan dards for legislative inquiries into its own members: Unquestionably, Congress has an interes in preserving its institutional integrity, but in most cases that interest can be sufficiently safeguarded by the exercise of its power to punish its members for disorderly behavior and in extreme cases, to expel a member with the concurrence of two- thirds. Congress has on specific occasions disciplined its own members. Such legislative punishment should be rational and relate to the purpose for which they are applied. For example "a loss of seniority as punish- ment for disruptive behavior or misuse of a committee chairmanship would undoubtedly be reason- able and thus constitutional." The test should ultimately be one of "balancing the appropriat ness of a decision against the need for it. The relevant factors to be considered would in- clude the degree of harm to the complainant, if immediate relief was denied; the likelihood the legislature will report the alledged transgression and rectify it without intervention, an the significance of legal standards in resolving the dispute. Thus except as regards to ex- press constitutional prohibitions, the choices regarding grounds of punishment, procedures, and sanctions have been left largely to the discretion of each house. Examples of punishment for fellow legislators have included taking away seniority, fines, public and private censure, suspension and change of committee assignments. Suspension has only been used twice in the cases of Senators McLauren and Tillman; whereas censure has been used with the more recent ex- ample of Senator Dodd. The minimum requirements of proper notice, hearing and review was met in each of these situations, and were governed by strict legal procedures. Thus the power to discipline fellow legislators at the federal level is well - founded in our legislative history. IV. THE STATE OF INDIANA The constitution of the State of Indiana also provides for dis- orderly behavior to be punished. Article 4, Section 14 provides that: Either House may punish its members for disorderly behavior and may, with the concurrence of two- thirds, expel a member; but not a second time for the same cause. Thus the language is almost identical to Article I, Section 5, Clause 2 of the U.S. Constitution. REGULAR MEETING FEBRUARY 9, 1976 NEW BUSINESS (CONTINUED) Regarding powers to investigate Indiana Code Sections 2 -4 -1 -1 through 2 -4 -1 -4 authorize the General assembly to have broad investigatory power, and is similar to the power at the federal level. It should also be noted that Indiana Code Sections 2- 2.1 -3 -1 through 2- 2.1 -3 -12 entitled "Legislative Ethics" set forth procedures to be used for investigations of its own members. These sections are silent on types of punishment, however the analogy to the alternatives at the federal level are probably applicable. V. THE CITY OF SOUTH BEND The City of South Bend being classified as a second class city (I.C. Section 18 -2 -1 -1 is governed by all pertinent Indiana law and its own Municipal Code. The legislative procedures and organization are vested in the commo council pursuant to I.C. Sections 18 -1 -3 -2 through 18- 1 -3 -6. It should be noted that section 18 -1.3 -5 of the Code entitled "Expulsion of Members" allows such power only for a violation of a "official duty" and requires a two - thirds vote by council. The similarity of this section to the provisions found in the U.S. Constitution and Indiana Constitution is inescapable. It shoul also be noted that I.C. Section 18 -1 -4 -2 gives the Council express investigatory powers into all departments, officers, and employees. The procedure outlined in this section however, does not apply to members of the council. This power is similar to Municipal Code Sections 2 -49 and 2 -50 which give further guidelines as to procedure. Municipal Code Sections 2 -8 and 2 -9 set forth rules of decorum and basic parliamentary procedure for the common council. Neither section is totally inclusive in that the Roberts' Parliamentary Rules are the prevailing authority in areas not specifically covered by the Municipal Code (2 -9 (a)). As to the specific question of whethe a Common Council may inquire into, and possibly discipline one of its own members, the answer is a qualified yes. (See conclusion section) More specifically Article XIII, Section 66 of the Roberts' Rules of Order, pg. 119 states: 66, The Right of Deliberative Assemblies to Punish their members. A deliberative assembly has the inherent right to make and enforce its own laws and punish an offender - -the extreme penalty, however, being expulsion from its own body ... But it has no right to go beyond what is necessary for self - protection and publish the charges against the member ...Section 69 of this same article states: Every deliberative assembly, havi the right to purify its own body, must therefore have the right to investigate the character of its members. It can require any of them to testify in the case, under pain of expulsion if the refuse. It should be noted that footnote references are made specifically to the U.S. Constitu- tion, Article 1, Section 5 permitting punishment of members for disorderly behavior. However, if Robert's Rules of Order were to be sole authority governing disciplinary matters involving public officials it would fail for lack of constitutional due process requirements. Roberts' Rules are based primarily on parliamentaryprocedures originally used by the British Parliament. It however, has been effectively superseded by the Cushing Manual when involving public official Roberts' has become more a guide to be followed by clubs and groups rather than governmental bodies. The Indiana legislature in passing the 1971 Powers of Cities Act, Public Law 250 deleg the cities all power "over municipal or internal affairs" which is not specifically denied or vested in another governmental unit. Essentially, Indiana Code Sections 18- 1 -1.5 -1 through 18- 1- 1.5 -30 enable cities to act without specific approval from the legislature. It is a dramatic reversal of the Dillon Rule which allowed local governments only to exercise those powers specifically granted, necessarily implied or indispensable to the municipal corporation. I.C. Section 18- 1 -1.5 -1 sets forth this broad and encompassing power. I.C. Section 18- 1 -1.5 -2 delineates the corporate procedural powers which includes the power to: (k) Punish contempt and disorders in rooms of the common council or of any board, department or agency of the city; This section thus would apply to all persons regardless of their classification. I.C. Section 18- 1- 1.5 -16 entitled "Residual Powers" gives additional powers to those specifically enumerated to "exercise any power or perform any functions necessary in the public interest in the conduct of its municipal or internal affairs, which is not prohibited by the constitution of this state or the constitution of the United States" or other express provisions. The section following, I.C. 18- 1- 1.5 -17 provides that any power conferred under this chapter shall be exercised in accordance with methods and procedures established, or if none are provided, the common council may, by ordinance adopt such methods and procedures. I.C. Section 18- 1- 1.5 -23 mandates that the powers conferred under this chapter be "construed liberally.in favor of such cities" It again emphasizes that: It is the intention of this chapter and the policy of the State to grant to cities full power and rights to exercise all governmental authority necessary for the effective operation and conduct of government with respect to their municipal and internal affiairs ... Additionally, the common council is vested with legislative power and authority and "all powers and duties of a city which are legislative in nature ..." I.C. 18- 1- 1.5 -26. I.C. Section 18- 1- 1.5 -29 again re- emphasizes that all the powers of the 1971 Powers of Cities Act are" in addition to those given and set forth by any other law." If "uncertainty or dis- putes arise" I.C. Section 18- 1- 1.5 -28 authorizes the Superior Court sitting en bane to give, . final review. It appears therefore that common councils of second class cities do have the inherent right to discipline their own members. If a council sought expulsion as their remedy, I.C. Section 18 -1 -3 -5 would expressly apply. If a council sought anything less than expulsion it must then rely on its Municipal Code procedures. In the case of South. Bend, the City is governed by Robert's Rules of Order in disciplinary matters. Roberts fails to meet the require ments of the 14th Amendment which states: no state shall... deprive any person of life, liberty or property, without due process of law. Due process of law has two basic aspects: procedural) and substantive. Procedural due process assures a witness of a fair hearing, whereas sub- stantive due process protects the freedom of speech, press, and other substantive rights con- stitutionally guaranteed him. Roberts fails in both respects. The only alternative then would be pursuant to the 1971 Powers of Cities Act. Since adequate "methods and procedures" regarding disciplinary procedures do not presently exist an ordinance via I.C. Section 18- 1- 1.5 -17 would have to be pursued. VI. CONCLUSION AND RECOMMENDATIONS. First: Second Class Cities in the State of Indiana do have the inherent right to discipline their own members. Second: Express authority from the State law allows the ultimate penalty for violation of official duties while a councilman to be expelled by a two - thirds vote. Third. The present procedures set forth in the municipal code and Robert's Rules do not meet the constitutional due process requirements. Fourth: To implement the broad powers of the 1971 Powers of Cities Act a new ordinance regard- ing the procedure to be followed in disciplinary matters would have to be adopted. Fifth: Any new ordinances passed by the Council would not cover the alleged incident of January 19, 191 because of the ex post facto problems which would be raised. Council President Parent said he would like to ask for a recess for the purpose of studying their reports. Councilman Taylor made a motion for recess, seconded by Councilman Adams. Recessed at 8:40 p.m. 11- The meeting reconvened at 9:00 p.m. ed 1 1 C 1 REGULAR MEETING FEBRUARY 9, 1976 NEW BUSINESS CONTINUED Council President Parent said he would like to entertain a motion to suspend the rules that says the chair cannot participate in the discussion, without leaving the chair. Councilman Taylor made such a motion, seconded by Councilman Horvath. Councilman Adams called for a roll call, however, Councilman Parent said they did not need a roll call vote on this. The motion did not carry. Councilman Taylor said that he did believe in due process of law. He said the situation was really relatively simple, there were five people involved, either as participants or witnesses to the incident, and these five people are Councilmen Kopczynski, Miller, Horvath, Dombrowski and Taylor. He said he would be extremely happy to wrap up this entire affair tonight, tomorrow or in the next few days, he said he would like to invite the world to watch, but there are only five people involved and those five people can shed light on the affair. He said as far as the incident is concerned, Councilman Parent did not hear it, Councilman Chris Adams did not hear it, Councilman Serge was in the hospital, and Councilman Szymkowiak was out of the room. He said he would like to go on record as saying the only thing he has asked for is simply to having some kind of a vehicle where these five people could give testimonly, and that he was perfectly willing to have it done in public. He said he could not see where anyone would object to that, and he did not feel he was being unfair to those five people. He said he would like the truth told without waiting fifteen months, and that we would like to have that vehicle. He said he thought that it was up to the attorneys to help the council find that vehicle. Councilman Szymkowiak said he felt that somebody was making a mountain out of a mole hill. He said he had been on the council for many years. He said the problem did not start at the caucus meeting it started before that meeting. He said there were words exchanged like happens among men. He said he felt the citizens of South Bend deserve the best from their council, that men act like men and take it as men. He said their responsibility was to serve the people and the city to the best of their ability and to do the job, not be here like a bunch of kids. He said if it gets too hot in the kitchen, get out. Councilman Horvath said he would like a legal opinion as to whether or not they had investigative) powers. Thomas Brunner, City Attorney, said that it was their opinion that the council did not have the right. Kathy Cekanski, Council Attorney, said you do have the power and the authority, however, the vehicle is missing to carry out that authority. She said you do have the right to discipline a member, and you have the authority of expulsion, should it be your overall objective Councilman Taylor asked if there would be anything illegal in submitting a report to the council reviewing the incident. Thomas Brunner, City Attorney asked if this would be a public report. Councilman Taylor said he had in mind a report that would be made public. Thomas Brunner, asked the purpose of such a report. Councilman Taylor said it would be to clarify what happened. Thomas Brunner, City Attorney, said we indicated that expulsion is specifically covered under the statutes, and it would be "his opinion that the council would have the right to proceed. However, if other than expulsion was comtemplated, and if the council desired to achieve any objective other than expulsion, they were running the risk of exercising authority outside their jurisdic- tion. Councilman Dombrowski, said that in other words any of us can do anything we want in caucu and nothing can be done. Kathy Cekanski, Council Attorney, indicated that the council was governed by rules of decorum. She said it would be her suggestion that an appropriate ordinance be drafted to cover any such incidents in the future. Thomas Brunner, said he concurred with this. Council President Parent said he would entertain a motion to allow about fifteen or twenty minutes for the public to speak on the issue. Councilman Adams made such a motion, seconded by Councilman Szymkowiak. The motion carried. Mr. Roman Kowalski, 802 Birchwood, said he was in full agreement with the city attorney, and he did not think there was too much of a chance for them to proceed with what they wanted to do. He said he did not feel the council would be justified in investigating another member. He said he thought the place this should have been taken care of was at the caucus meeting. He said the council must have some type of rules, and it was up to the chairman to take care of this. He said he felt the council was wasting the _taxpayers time and money. Councilman Miller said he thought it was clear from what has happened that there is a need to revamp the rules. He said Roberts Rules are not the normal rules being used today. He said it was obvious the council rules were inadequate and he would stand on the resolution. Councilman Miller asked if the motion is withdrawn, would it be proper to reconsider the resolution. He said he would be in favor of having the motion withdrawn, especially if the resolution could be considered at this meeting. Council President Parent said in his opinion the motion could be withdrawn. Thomas Brunner, City Attorney, said he had no opinion on the subject. Council President Parent said he would not withdraw the motion, and Councilman Miller reminded him it was not his motion. Council President Parent asked Vice President Dombrowski to take the chair. Council President Parent said he had requested an investigation of the incident, after there had been a lot of discussion on it in the press. He said he proposed the investigation in order to bring the matter to a head, in a fair manner by due process. He said he was unaware that the council did not have the rules adopted that would provide for due process. He said his intentio was to get the matter resolved as quickly as possible. He said that apparently the council coul entertain a resolution to actually expel one of its members, it seems the council has a legal right to do that. He said he wanted to follow the advice of the attorneys. He said the right for the investigation has opened a number of areas we will have to work out. He said the pro- ceedings and the incident is very unusual, and that the council would have the power of censure without investigation. He said he would like to ask the council attorney if his interpretation of the memos was correct, in that although the council has implied powers to conduct an inves- tigation and chastise one of its members, or expel one of its members, in fact because there is no vehicle there is no way it can look into this as a council. Kathy Cekanski, Council Attorney said she would agree with that at this point. Council President Parent asked if the council could censure one of its members without an investigation, or take any type of punishment. Kathy Cekanski said that censure was referred to in both the Municipal Code and Roberts Rules, however, she was unclear as to what its effect was in either book, since it was not defined. Council President Parent asked if there was anything open to the council so they could get this resolved. Kathy Cekanski said that anything the council would do that was not in an official capacity, would be on a purely civil matter, therefore, it would open each one of you to the possibility of a suit. She said she would caution all of the council members from anything in that area. Councilman Dombrowski asked Mr. Brunner if he had anything to add. Thomas Brunner, City Attorney, said that he had already indicated they had the remedy, and that is expulsion. . - REGULAR-- ME.ET_I:NG,: NEW BUSINESS(CONTINUED) He said they had already told the council that the power of expulsion exists, and the implied power to discipline exists. He said it was his strong opinion with respect to any implied power under the home rule statute that you do not have the power to proceed further. He said it was his, somewhat hedged, opinion that you have the power to investigate if the objective is expulsioi However, that could be interpreted more than one way and it does indicate that you have the right to formulate your own rules in order to proceed to expel a member. One interpretation could be that you have the right to enact your own rules which would govern that specific case, or you have the right to formulate rules in anticipation of an offense that would merit expulsion. It is difficult to say what a court might do, because this has never been decided in an Indiana court. Vice. -- President Dombrowski returned the chair to Council President Parent. Council President Parent asked Mr. Brunner if there are implied powers when the council would set out to expel, why can't those same powers be applied to a low keyed investigation. Mr. Brunner said he thought they could be applied. The same powers can be applied, those powers are not implied however insofar as they must be promulgated pursuant to ordinance. He said that the actual power to address the problem exists, however, the actual power to address a specific incident occuring on January 19, in their opinion does not exist. He said if this was a continuing problem, then the council should formulate a policy whereby they can take action. He said that both Council Attorney and City Attorney are merely saying you cannot take action in this case. Councilman Adams, called for the question. Councilman Miller said he would withdraw his motion, and Councilman Dombrowski withdrew the second. Sale of City owned real estate - 524 S. Fellows Street. Council President Parent said he:was a little confused, he said that earlier they had considered one of these under a resolution, and now we are considering this property. Mr. Rollin Farrand, Director of the Board of Public Works, said that the first one had been before them in the same form as this one asking for authoriza- tion to sell, but we were not able to sell it in accordance with the ordinance, so we came back to you asking permission to sell. We have a request to purchase this parcel, which is a corner lot on Fellow. It has 166 frontage and is approximately 33 x 55. Assuming you give us permissio: to sell then the procedure is set by ordinance. We donot have a value because it has not been appraised and will not be appraised until we have your permission to sell, or a lapse of thirty days without action. Councilman Szymkowiak made a motion to authorize the sale of this piece of land, seconded by Councilman Dombrowski. The motion carried. Councilman Adams made a motion to ask the council attorneys to investigate how closely we should follow Roberts Rules in conducting our meetings, and perhaps interview a few municipalities close to us to see how they conduct their meetings. Council President Parent said there was no second, the motion is dead. Councilman Kopczynski said that caucus meetings should be conducted in an orderly manner using Roberts Rules of Order. He said he believed if you study the Municipal Code that is what it called for, and you as president, I request that you conduct yourself in such a manner that you run these meetings in such a way and all councilmen have the opportunity to speak whether it is a caucus meeting or public meeting. I do not think'.any one should be muzzeld at any time. He said he was looking forward to that type of behavior. Councilman Horvath said he did not know of anytime at a caucus meeting or at a public meeting, especially if you stick with the agenda you are not muzzled. He said that anyone that wants to talk has been allowed to talk. He said he would have to disagree with Councilman Kopczynski. Council President Parent said that this was about the umpteenth time he had been accused by Councilman Kopczynski of muzzling him. He said the meetings were taped and that he would like for the council to take a sample, or all of the tapes, and get this matter resolved once and for all. He said he had to run the meetings according to the rules. He said he thought these were serious charges, and they were usually brought out at public meetings. He said he usually did not say too much about these things, but in this case I am going to ask the council to look into the matter. He said we are not supposed to be conducting our business in this manner, and that did not want to be accused again. He said an ordinance will be submitted to allow the council to rule on such matters and enforce the rules. There being no further business to come before the council, unfinished or new, Councilman Taylor made a motion to adjourn, seconded by Councilman Adams. The motion carried, and the meeting adjourned at 9:50 p.m. ATTEST: .1 APPROV�� CITY CLERK ..D 'F-F-I-. +-h-E--I-'F. F- hl -.-h-h+-1--f--f- ............ ................. ....... F t..