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Councilors, Clerk File Suit Against Clay - Part 1


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Several members of the Indianapolis City-County Council, as well as the city-county council clerk who was fired last week by Council President Stephen Clay, are taking him to court.

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Councilors, Clerk File Suit Against Clay - Part 1

  1. 1. 1 STATE OF INDIANA ) IN THE MARION SUPERIOR COURT ) SS: COUNTY OF MARION ) CAUSE NO. ZACHARY ADAMSON, JARED EVANS, ) MAGGIE LEWIS, FRANK MASCARI, ) JEFF MILLER, WILLIAM OLIVER, ) VOP OSILI, CHRISTINE SCALES, ) each members of the Indianapolis-Marion County ) City-County Council; and ) NATRINA S. DEBOW, Clerk of the Council, ) ) Plaintiffs ) ) v. ) ) STEPHEN CLAY, President of the ) Indianapolis-Marion County City-County Council, ) ) Defendant. ) VERIFIED COMPLAINT FOR DECLARATORY JUDGMENT, MANDATE AND INJUNCTIVE RELIEF Come now Plaintiffs, Zachary Adamson, Jared Evans, Maggie Lewis, Frank Mascari, Jeff Miller, William Oliver, Vop Osili, and Christine Scales, each duly-elected members of the Indianapolis-Marion County City-County Council (the "Council") (collectively the "Councillors"), and NaTrina S. DeBow ("Clerk DeBow"), Clerk of the Council, by their undersigned attorneys, and state as follows in support of their request for a declaratory judgment, order of mandate (I.C. § 34-27-3, et seq.), and injunctive relief: Filed: 2/8/2018 9:04 AM Myla A. Eldridge Clerk Marion County, Indiana 49D06-1802-PL-005209 Marion Superior Court, Civil Division 6
  2. 2. 2 INTRODUCTION 1. The Councillors and Clerk DeBow bring this action for declaratory and injunctive relief including, because of the emergency nature of the attendant circumstances, a temporary restraining order with notice. Specifically, they seek an order from this Court that Defendant Stephen Clay be ordered to cease prohibiting Clerk DeBow and Fred Biesecker, the Council's general counsel and parliamentarian ("general counsel/parliamentarian"), from performing the duties of their respective positions for the Council. They also seek a declaratory judgment that Defendant Clay violated Ind. Code § 36-3-4-8(a) and the Marion County ordinances governing Council personnel by his attempt to summarily discharge Plaintiff DeBow and by denying the Councillors access to independent legal and parliamentary advice from Biesecker. Such a Court order is necessary because Clay's illegal, unauthorized and autocratic actions of attempting to summarily terminate and prevent both DeBow and Biesecker from performing their respective jobs, without authority from the full Council, are continuing to harm the Councillors, Clerk DeBow, and the public, by throwing the Council into chaos and preventing it from performing the Council's public business for the people of Marion County. PARTIES 2. The Councillors are each duly-elected members of the Council. The Council is established by I.C. § 36-3-4, et seq.
  3. 3. 3 3. Clerk DeBow is the duly-appointed Clerk of the Council who at the first regular meeting of the Council in 2018 was appointed by the Council to serve as Clerk for a term of one (1) year as provided by Indiana Code § 36-3-4-8(a) and Council Rules Sec. 151-12 and 151-911. Under that statute, and notwithstanding Clay's attempt to terminate her, Clerk DeBow continues to serve as the Council's Clerk “at the pleasure of the legislative body and continues in office until the clerk’s successor is appointed and qualified.” I. C. § 36-3-4-8(a). 4. Defendant Stephen Clay is an elected member of the Council who on January 8, 2018, was elected by the Council to serve as its president. FACTUAL ALLEGATIONS 5. Between January 8, 2018 and the Council’s next scheduled meeting on January 29, 2018, it became known that a number of members of the Council, including some who had voted for Clay on January 8, 2018, were considering initiating the process for removing Clay as Council president. (Ex. A, Biesecker Aff. ¶ 5). 6. Removal of the Council president is governed by Council Rule Sec. 151-13(c), which states that: “Any officer elected by the [Council] may be removed upon a majority vote of all the members of the [Council]; however, no vote shall be had upon a removal until the motion 1 The Council Rules are contained under Title 1, Chapter 151 of the Revised Code of the Consolidated City and County.
  4. 4. 4 to do so has been made a special order of business by vote at a meeting at least one (1) week prior thereto.” This meant that in order to set up a removal vote at the next Council meeting on February 19, 2018, the Council at its January 29, 2018 meeting would need to adopt two preliminary procedural motions: first, a motion to amend the agenda to add to the agenda a motion to make removal of the president a special order of business at its February 19 meeting; and second, a motion to make removal of the president a special order of business at that meeting. (Ex. A, Biesecker Aff. ¶¶ 6-7). 7. Shortly before the start of the January 29, 2018 Council meeting, Clay called Biesecker, the general counsel/parliamentarian, into his office. Toward the end of that meeting, Clay twice told Biesecker that Council Minority Leader Michael McQuillen had asked Clay to fire Biesecker before the Council meeting of January 29, 2018, but that Clay had declined to do so. Biesecker perceived this as a warning that if he did not support McQuillen’s efforts on the Council floor, on behalf of Clay, to delay or defeat the removal-related motions, Biesecker would be fired. (Id. ¶¶ 9-11). 8. At the January 29, 2018, Council meeting, McQuillen did in fact attempt to delay or defeat the removal-related motions. Because none of his attempts had any basis under the Council Rules or other applicable law, Biesecker, in his role as general counsel/parliamentarian, ruled them out of order. Clay acceded to those
  5. 5. 5 rulings and the two removal-related motions were both adopted. (Id. ¶12). 9. On January 31, 2018, Clay summoned Biesecker and Clerk DeBow, separately, to his office and told each they were being terminated. 10. Clay’s actions in purporting to terminate DeBow, without the direction or vote of the full Council, were ultra vires and unlawful, as only the full Council may appoint or terminate the Clerk, and even so Clerk DeBow “continues in office” until the full Council appoints and qualifies her successor. I. C. § 36-3-4-8(a). 11. Biesecker was escorted out of the office by a Deputy of the Marion County Sheriff in a manner designed to humiliate and expose him to public ridicule. (Id. ¶ 14). 12. Under I.C. § 36-3-4-8(b) the Clerk is exclusively responsible for the following Council business: (1) Act as secretary to the legislative body. (2) Send out all notices of its meetings. (3) Keep all its records. (4) If the consolidated city maintains an Internet web site, post on the consolidated city's Internet web site the roll call votes of the consolidated city's legislative body not later than three (3) business days after the following: (A) The date the roll call vote is taken if the consolidated city's software is able to generate a roll call vote.
  6. 6. 6 (B) If the consolidated city's software is not able to generate a roll call vote, the date the city-county legislative body is first able to approve the minutes of the meeting at which the roll call vote was taken. The clerk shall maintain the roll call vote information on the Internet web site for a period of four (4) years. (5) Present ordinances and resolutions to the executive under section 15 of this chapter. (6) Perform other duties connected with the work of the legislative body that are delegated to the clerk by the legislative body. 13. Pursuant to Council Rule Sec. 151-93, the general duties of the Clerk with respect to the proceedings of the Council, are as follows: (1) Act as secretary of the city-county council and each special service district council and keep and preserve an accurate journal of all proceedings of the councils; (2) Shall cause all notices of regular and special meetings of the councils and its committees to be served in accordance with state statutes, this Code and other city-county ordinances, these rules and the directions of the president of the council; shall cause the publication of all notices of public hearings as required by law or these rules and shall also deliver all subpoenas issued by authority of the councils. (3) Shall be the legal custodian of all records of the councils and of all ordinances and resolutions of the consolidated city and county. (4) Shall maintain complete and orderly files containing all papers and documents of every kind and character pertaining to the business of the councils and hold them available for the use and reference of the councils and their members.
  7. 7. 7 (5) Shall call the roll when directed by the presiding officer in alphabetical order, except that the president shall be called last. 14. Pursuant to Council Rule Sec. 151-92, the Clerk shall also: …act as the secretary of the city-county council, shall send out all notices of city-county council meetings, keep the official records of city-county council proceedings and shall have the duty, pursuant to state law, of keeping an ordinance book and seeing to the publication of ordinances. The clerk shall be the keeper of the city seal and Code. 15. As the legally appointed Clerk, no one can perform these duties except Plaintiff DeBow. 16. Clay’s illegal and ultra vires purported termination of Plaintiff DeBow as the Council's Clerk, and his actions to bar her from re-entering her office, have prevented and impeded her from performing her duties as Clerk of the Council, as set forth by Indiana law and the Council’s Rules. 17. Council Rule Sec. 151-100 provides for the hiring of the general counsel.: The general counsel shall be appointed by the president of the council upon recommendation by the committee on rules and public policy, subject to approval by the council. The president shall be responsible for supervision of the general counsel. (emphasis added). 18. Under Council Rule Sec. 151-100, no new general counsel can be hired until the full Council approves the new hire. 19. Clay's unlawful purported termination of Biesecker has effectively prevented the Council from functioning, as under the Council's
  8. 8. 8 Rules, the Council is required to have a general counsel/parliamentarian—who exclusively represents the Council and not any other agency or department of local government--to perform a variety of Council-related functions, including serving as parliamentarian, Council Rule Sec. 151-59, in addition to a number of other duties. See, e.g., Sec. 151-62 (drafting and review of proposals); Sec. 151-64 (drafting fiscal ordinances regarding budget and tax levies); Sec. 151-79 (handling of rezoning ordinances); Sec. 151-1124 (assisting with ethics investigation of councillors). 20. Council Rule Sec. 151-101 prescribes additional duties of the general counsel/parliamentarian, as follows: (a) The general counsel shall be responsible to see that all ordinances and resolutions requested by members of the council are drafted, shall review and approve all proposed ordinances and resolutions as to form and legality, shall advise the clerk as to all matters regarding publication and codification of ordinances and shall give legal advice as requested by the councils, their committees and their members. (b) The general counsel shall be responsible for editing and supervising of the codification of the ordinances and is authorized to renumber and rearrange sections of ordinances or the codification as deemed appropriate. (c) The general counsel shall also attend meetings of the majority and minority caucuses upon request of the respective caucus leaders, to discuss or advise as respects council business or procedures, unless the general counsel determines that an ethical conflict would arise from such request. (d) The general counsel shall represent the council, or councillors (or supervise counsel retained for such
  9. 9. 9 purposes, as approved by the president) whenever the corporation counsel has refused to do so or when authorized by resolution of the council. (e) The general counsel shall not represent a councillor on a private matter or in a private capacity. This shall not prohibit the general counsel from appearing for councillors individually in civil matters arising out of actions taken by councillors which they in good faith believed were within the scope of their official duties and such representation is authorized under subsection (d) of this section. 21. By his illegal and ultra vires purported terminations of Clerk DeBow and General Counsel/Parliamentarian Biesecker, Defendant Clay has harmed the Councillors by denying to them the support services required to be performed by the Clerk and the general counsel/parliamentarian, thereby throwing the Council into chaos and making it impossible for them to perform the Council’s public business. See, e.g., "Council chaos puts new council business on hold," Mary Milz (Feb. 5, 2018), available at chaos-puts-new-council-business-on-hold (Last visited Feb. 6, 2018). 22. For example, Plaintiffs Adamson, Osili and Oliver are members of the Public Works Committee which is scheduled to meet on February 8, 2018, and Clay’s aforesaid illegal actions have denied to them their right to have the general counsel/parliamentarian advise them during the committee meeting. 23. Councillors require the general counsel to draft and review proposals that are to be considered by the full Council. The deadline for the introduction of proposals is February 9, 2018, and Clay’s aforesaid
  10. 10. 10 illegal actions have denied Councillors their right to have the general counsel/parliamentarian advise them and review and draft proposals. 24. The Councillors and the general public will suffer irreparable harm in that they will not be able to perform their duties as Councilors in the absence of either Clerk DeBow or General Counsel/Parliamentarian Biesecker. In particular, the Clerk will be unable to process and prepare the new proposals that have to be submitted by February 9, 2018; the general counsel will be unavailable to review and approve any new proposals for form and legality, Council Rule Sec. 151-63; and the general counsel will be unavailable to serve as parliamentarian at the Council's next regular meeting scheduled on February 19, 2018, as a new general counsel will not have been approved as of the start of the meeting. 25. Defendant Clay's purported discharge of Clerk DeBow within weeks after she had been appointed by the full Council, and his subsequent actions to bar her from performing the duties of her position by banning her from the Council's office on the second floor of the City- County Building, violated I.C. § 36-3-4-8(a) and his actions are continuing to cause grave and irreparable harm to the Councillors and to the citizens and taxpayers of Marion County. 26. Irrespective of the illegality of Clay's purported termination of her, Clerk DeBow "continues to serve in office" until her "successor is appointed and qualified." I.C. § 36-3-4-8(a).
  11. 11. 11 27. Unless ordered by this Court to cease and desist from continuing to deny DeBow and Biesecker access to their respective offices and staff necessary to perform their respective duties as the Clerk and general counsel/parliamentarian of the Council, Clay will continue his illegal actions, thus leaving the Council in chaos and impeding if not preventing the Councillors' ability to perform their statutory functions and the public's business. 28. The ongoing illegal and ultra vires actions of Defendant Clay, unless restrained and enjoined by this Court, will continue to cause irreparable harm to Plaintiffs and to the public. Any harm to Defendant Clay should this Court restrain his illegal actions is more than outweighed by the harm caused to Plaintiffs and to the public by Clay's continuing illegal actions that have paralyzed the Council and prevented it from performing its statutory functions and the public's business. 29. The harm to the Councillors and to the public is irreparable in that the harm cannot be remedied by money damages. 30. The public interest will not be disserved by the issuance of the injunctive relief, and in fact will be served by the issuance of the restraining order and preliminary injunction Plaintiffs seek from this Court, in order to restore the status quo that existed prior to Clay's attempted illegal terminations of Clerk DeBow and general counsel Biesecker, which will allow the Council to once again perform its statutory functions and the public's business.
  12. 12. 12 WHEREFORE, Plaintiffs request that the Court: 1) Declare that the aforementioned actions of Defendant Clay in purporting to terminate Plaintiff Clerk DeBow and General Counsel/Parliamentarian Biesecker, and thereafter to prevent each from performing their respective Council-related functions of their jobs as prescribed by state law and local ordinance, were in violation of Indiana law, specifically I. C. § 36-3-4-8(a) and Council Rule Sec. 151-100; 2) Temporarily restrain, preliminarily enjoin and mandate that during the pendency of this action Clay and all those who may be acting in concert with him from continuing to prevent Clerk DeBow and general counsel Biesecker from performing their duties as the Council’s Clerk and general counsel/parliamentarian, respectively, and order Defendant Clay to allow each full and unimpeded access to their respective offices on the second floor of the City-County Building to perform the legal Council-related functions of their jobs until further order of this Court; and 3) Grant Plaintiffs any other or further relief the Court deems necessary to restore the status quo that existed prior to Defendant Clay's unlawful actions until Plaintiffs' claims are heard and decided on the merits.
  13. 13. 13
  14. 14. 13 Respectfully submitted, /s/Karen Celestino-Horseman /s/ William R. Groth Karen Celestino-Horseman William R. Groth Atty. #15762-49 Atty. #7325-49 Of Counsel, Austin & Jones, P.C. Fillenwarth Dennerline Groth & 22 E. Washington St., Ste. 620 & Towe, LLP Indianapolis, IN 46204 429 E. Vermont St., Ste. 200 Tel: (317) 632-5633 Indianapolis, IN 46202 Fax: (317) 630-1040 Tel: (317) 353-9363 E-mail: Fax: (317) 351-7232 E-mail: /s/Octavia Florence Snulligan Octavia Florence Snulligan Atty. #23995-29 26 W. Washington St. Indianapolis, IN 46204 Tel: (317) 210-2950 Fax: 14