02-09-76 Council Meeting Minutes

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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