02-09-76 Council Meeting Minutes

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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.