02-09-76 Council Meeting Minutes

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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