STATE OF INDIANA ) IN THE MARION SUPERIOR COURT
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, )
STEPHEN CLAY, President of the )
Indianapolis-Marion County City-County Council, )
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
Marion County, Indiana
Marion Superior Court, Civil Division 6
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.
2. The Councillors are each duly-elected members of the
Council. The Council is established by I.C. § 36-3-4, et seq.
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
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
The Council Rules are contained under Title 1, Chapter 151 of the
Revised Code of the Consolidated City and County.
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
rulings and the two removal-related motions were both adopted. (Id.
9. On January 31, 2018, Clay summoned Biesecker and Clerk
DeBow, separately, to his office and told each they were being
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.
(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
(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
(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
17. Council Rule Sec. 151-100 provides for the hiring of the
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
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
(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
(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
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 https://www.wthr.com/article/council-
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
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).
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.
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