Arguments Heard In Court Over Fort Wayne "Pay-To-Play" Law

May 22, 2019

Credit Zach Bernard/WBOI News

Allen Superior Court Judge Jennifer DeGroote heard arguments Wednesday morning in a case focused on a 2018 Fort Wayne City Council measure that limits financial contributions of contractors -- or family members of those contractors -- to political campaigns in Fort Wayne.

In 2017, Council passed what it dubbed a “pay-to-play” ordinance on a 6-2 vote. The goal of the measure was not to paint a target on anyone’s back in particular, but rather to close what councilman John Crawford -- a co-sponsor of the bill -- called a loophole in Indiana state law. As a result, anyone looking to bid on a city project would be limited to contributions of no more than $2,000, or lose the right to bid on projects for the next calendar year.

The City of Fort Wayne was skeptical the matter would hold up in court, presenting four independent legal opinions stating why. Council heard these opinions, but stood by their bill; without outwardly accusing anyone of bias, several Council members offered the point that any legal representation paid for by Mayor Tom Henry would likely serve the mayor’s interests, and were willing to take a chance on the proposal.

Crawford highlighted the “appearance of impropriety,” going so far as to question even the possibility of a lawsuit based on how it could look for a given plaintiff.

“Who would actually sue us? A company would say, ‘We feel we have been wronged that we cannot give $50,000 in campaign contributions while we simultaneously compete for competitive city contracts.’ Now that’s a little hard, I think, to go in public and say that,” Crawford said at the November 21, 2017 meeting.

Henry vetoed the bill, only for it to be overturned by Council five days later. Into 2018, the bill was amended to focus on independent contractors employed by the City of Fort Wayne as a possible way to avoid further legal scrutiny.

The amendment still didn’t sit well with Kyle Witwer and Kimberly Suzanne Witwer; they filed suit in April challenging the ordinance, and requesting a judge block the implementation of the ordinance.

Kyle owns Witwer Construction, a company that would be affected by the measure as written. While Kimberly doesn’t operate the business, she would also be affected by the proposal simply by her association as Kyle’s wife.

“Not all of my opinions are the same as Kyle’s. Not all of Kyle’s opinions are the same as mine,” Kimberly said in the affidavit. “We respect each other and our right to disagree over issues, including political candidates to local office.”

Crawford addressed the lawsuit on May 1, standing firmly behind the bill.

“We believe our ordinance is legal. Attorney [Joe] Bonahoom crafted it, he actually spent several years on it because it was brought up before but they didn’t do it because of legal issues, and we’ve tried to work all those out so this can survive a challenge.”

Representing the Witwers, attorney Mark GiaQuinta argued Wednesday that even though Fort Wayne is a home rule city, the 2010 Citizens United ruling and Indiana’s Constitutional response the next year create a tight, exhaustive base regarding election and campaign finance laws within the state.

If the state wanted cities like Fort Wayne to enact these types of measures, the plaintiffs say, it would have been addressed by the state in 2011.

GiaQuinta also argued that there was no evidence of an actual problem, something 6th District councilman Glynn Hines agrees with. In his affidavit filed on behalf of the Witwers he argued, as he did during the November 2017 meeting, the proposal was unnecessary, noting the powers the body already has if it sensed something foul on the campaign finance front.

“If the Common Council believes that political donations are added to the amount of contracts awarded by the City to allow the donor to recoup the contribution, as stated in the Ordinances, the Council can investigate that matter,” Hines said in the affidavit. “The Council can examine bids to see if they are the most responsive and responsible and following the state bid laws.”

“In addition,” he noted, “the investigatory power of the Common Council allows us to question witnesses to obtain evidence and even judicial assistance. To my knowledge and belief, there was no such investigation to gather any facts in support of the Ordinance.”

Attorney Scott Chinn is defending the city in the lawsuit against the ordinance.

Chinn went so far as to agree with GiaQuinta that the 2017 measure had its share of legal problems -- and that amending it the following year to center around “independent contractors” was the way to dodge further legal scrutiny.

“Context will matter,” Chinn said, pointing out the intentions of the bill but perhaps more importantly, the belief that no statute was standing in the way of a municipality like Fort Wayne from exercising such regulatory power on the outside services it accepts. He also suggested there’s no case currently that points to the bill as a problem, even if it indirectly crosses over into campaign finance law.

While no ruling was made Wednesday, court officials say both sides must submit proposed findings of fact and conclusions of law by Friday, with a potential ruling next week. The main issue being considered at this time is whether the state law makes this ordinance unnecessary.