COUNTY ATTORNEY ANDREW BAUDENDISTEL ON COUNCIL'S 5 VOTE RULE FOR SALARY ORDINANCES

From: Andrew Baudendistel [mailto:a.d.baudendistel@gmail.com]
Sent: Monday, December 01, 2014 2:35 PM
To: Shane McHenry; Kevin Lynch; Art Little; Elizabeth Morris; Bill Ullrich; Dennis Kraus, Sr.; Charlie Keyes; Randall Lyness; Dan Lansing; ryanbrandt78@yahoo.com; Gayle Pennington; Terri Randall
Subject: Issue Raised by Christine Mueller

Commissioners and Council,

I have (once again) looked into the issue raised by Christine Mueller re: the number of votes needed to change salaries.  This will be a pretty long email, but in short, I do believe that State law was followed and the action taken by Council was founded in State statute.  Below is my exhaustive analysis of the issue raised by Mrs. Mueller:

1.  In 1980, the legislature of Indiana passed the Acts of 1980, P.L. 212, Sec. 1 which added § 36-2-5-13 to the Indiana Code.  At the time of passage, that statute read as follows (in pertinent parts):

The compensation of an elected county officer may not be changed in the year for which it is fixed.  The compensation of other county officers, deputies, and employees or the number of each may be changed at any time on:

(1) the application of the affected officer, department, commission or agency; and

(2) a two-third (2/3) vote of the county fiscal body.

With a seven member board, a 2/3 majority would be five (5) votes.

2.  In 1995, the minutes presented by Christine Mueller show that Joe Meyer (then County Administrator) "spoke on the 'new' Council meeting rules."  Part of this discussion was that five (5) votes were needed to change salaries which, in 1995, was consistent with State law.  I have a few issues with the minutes and what they mean exactly:

(1) It does not appear that this was anything that was voted on, rather, it is presented as Joe Meyer just updating Council on the manner in which the meetings occur.  If you'll notice in the official minutes, no vote was actually taken to "adopt" the procedures that were outlined.  Again, this doesn't appear to have ever been voted on (all the other agenda items clearly indicate that a vote was taken);

(2) If this was voted on, it didn't change anything.  State statute at the time required five (5) votes for salary changes any way, so this wasn't making anything more stringent; and

(3) Even if this were voted on, it was not done by ordinance and it is something we would have no way of knowing.  Also, I am not sure that a Council can bind future councils simply by a voice-vote, I think that would need to be done in ordinance (if it's allowable at all).  There is a legal doctrine called "legislative entrenchment" that the US Supreme Court has discussed that basically says that one legislature may not bind the legislative authority of its successors.

3.  In 2002, Indiana Code § 36-2-5-13 was amended to read as follows (changed or added language underlined):

The compensation of an elected county officer may not be changed in the year for which it is fixed.  The compensation of other county officers, deputies, and employees or the number of each may be changed at any time on:

(1) the application of the county fiscal body or the affected officer, department, commission or agency; and

(2) majority vote of the county fiscal body.

This change in 2002 made it only a majority vote (four (4) votes) for salary changes, which is what I updated Council on when we reviewed this issue previously.  If the minutes presented by Mrs. Mueller actually showed that Dearborn County Council adopted a five (5) vote requirement for salary changes in 1995 (which I don't believe those minutes show at all), for that five (5) requirement to remain in effect after this statute was amended in 2002 would have required an ordinance to that effect.  County governments can make things more stringent (but not less stringent) than State statutes (in some cases), but to do so requires an ordinance.  There are a number of cases going back to 1907 that discuss this:

-Cooper v. City of Greenwood, 81. N.E. 56 (1907) - ordinance may supplement state law

-Medias v. City of Indianapolis, 23 N.E.2d 590 (1939) - no prohibition for an ordinance to impose additional regulations if the ordinance is otherwise valid

-Spitler v. Town of Munster, 14 N.E.2d 590 (1938) - more stringent requirements allowed where exclusive authority not reserved to the state

-Hollywood Theater Corp. v. City of Indianapolis, 34 N.E.2d 28 (1941) - parts of ordinance imposing less stringent regulations than statute are invalid

-City of Richmond v. S. M. O., Inc., 333 N.E.2d 797 (Ind.App.1975) - municipalities residual powers must be exercised by ordinance

Therefore, it can be argued that Council can require five (5) votes for salary changes, but because this is more stringent than what the State statute calls for, to do so would require an ordinance.  However, it can be argued that Council cannot do this because...

5.  Indiana Code § 36-1-3-6(a) states that:

If there is a constitutional or statutory provision requiring a specific manner for exercising a power, a unit wanting to exercise the power must do so in that manner.

Based on this statute, there is an argument that Council cannot change the number of votes required for a salary change because Indiana Code § 36-2-5-13 is very clear on how salary changes come about and what is needed to approve them.  It could be argued that this is a "specific manner of exercising a power" and, therefore, cannot be changed.  This would be a question to hash out at a later time though (if Council wanted to require five (5) votes for salary changes).

In summary, it is my opinion that State law was properly followed based upon the following:

1.  From 1980 through 2002, five (5) votes were required for salary changes;

2.  The 1995 minutes only show that the County Administrator, Joe Meyer, updated County Council on procedures for meetings, it appears that no vote was taken by County Council;

3.  The 1995 minutes reflect what the State statute said at that time, namely that five (5) votes were required for salary changes;

4.  Even if a vote was taken, the voice-vote (no ordinance was presented or passed) may not be binding on future County Councils based on the legal doctrine of "legislative entrenchment";

5.  Even if a vote was taken and said vote was binding on future County Councils, the five (5) vote requirement for salary changes would have needed to be reaffirmed by ordinance following the change in the law in 2002 because a County may make things more stringent (in some cases), but to do so requires an ordinance;

6.  Finally, the statute discussing the "specific manner for exercising a power" could preclude County Council from making the voting requirements for salary changes more stringent because the statute dealing with salary changes is clear about the procedure to go through and how many votes are needed to change salaries and, therefore, is arguably a "specific manner for exercising a power" which must be followed.

I have spent a great deal of time researching this issue and after everything I have found, I am quite confident in the action taken by County Council.  Please do not hesitate to contact me if you have any questions.

Sincerely,

Andrew D. Baudendistel

County Attorney

Dearborn County, Indiana

60 East High Street

Lawrenceburg, IN 47025

Phone: (812) 537-4500

Fax: (812) 539-4500