Published: May 13, 2008 11:05 pm            

Bennett responds to Hatch Act appeal

Brief: Mayor’s former job not strongly connected to Head Start

TERRE HAUTE — Mayor Duke Bennett’s legal team has filed the final brief in the legal battle for the mayor’s office in Terre Haute.

The brief, filed Friday with the Indiana Court of Appeals, should be the final written argument the court will receive before making a decision in the case, which pits former Mayor Kevin Burke in a battle to regain his old job, against Bennett, who was elected mayor last November.

Burke is arguing that Bennett violated the Hatch Act, a law that limits the political activity of government employees and people who work for not-for-profit agencies that receive federal funds. Burke contends Bennett was ineligible to run for mayor because of his then-job with Hamilton Center, a not-for-profit mental health organization that receives federal money for its Head Start program.

Bennett, who served as director of operations at Hamilton Center, won the November mayoral election by 110 votes out of around 12,000 votes cast.

The brief filed Friday came in response to Burke’s earlier response to a counterappeal in the case by Bennett. Burke filed the first appeal in the case when he asked that Vigo Circuit Court Judge David Bolk’s Dec. 21 decision, which allowed Bennett to take office as mayor, be overturned.

Bennett’s legal team answered Burke’s initial appeal with its own appeal of another part of Bolk’s decision – the part where Bolk ruled Bennett was subject to the Hatch Act when he ran for mayor.

In all, four briefs have been filed with the Indiana Court of Appeals since Bolk’s decision was handed down late last year.

In this latest brief, Bennett’s legal team continues to argue that his job at Hamilton Center was not connected strongly enough to the Head Start program to justify removing him from office and overturning the November election.

“It’s not a strong enough connection,” said Bryan Babb, an attorney representing Bennett in the case. “If [Bennett] had come to this counsel [for advice before the election], I would have told him the [Hatch] Act didn’t apply to him.”

Meanwhile, Burke’s legal team continues to argue that Bennett was covered by the Hatch Act when he ran for mayor and that Indiana law stipulates he should therefore be removed from office.

“Mr. Bennett had enough responsibilities under Head Start to bring him under the Hatch Act,” said Amanda Couture, an attorney representing Burke in the case. “We continue to believe the when this matter is concluded, Kevin Burke will be the mayor of Terre Haute.”

Both sides also continue to disagree over whether Bennett received a pre-election “warning” from the United States Office of the Special Counsel, the federal agency that investigates Hatch Act complaints, that the Act might apply to him. In an earlier brief, Burke’s legal team argued that Bennett called the OSC in Washington and “chose to ignore the applicability of the Hatch Act.”

Bennett’s team disagrees, arguing “Bennett was never ‘warned’ by the OSC that the Act applied to him. The OSC merely told Bennett that the Act might apply to a local non-profit with a Head Start program. That is a far cry from issuing a ‘cautionary warning,’” the brief states.

Burke, speaking Tuesday, expressed confidence about the eventual ruling from the Court of Appeals. “We feel like upholding the law will rule in our favor,” Burke said, adding he feels a sense of “urgency” to return to office because of “the momentum we are losing in the community.”

Bennett also expressed confidence in the court’s eventual ruling.

“We are confident that the court will see that the local judge ruled correctly,” Bennett said Tuesday. “Our goal is to continue to move the city forward and bring closure to this issue as soon as possible.”

The next step in the case could either be oral arguments in front of the Court of Appeals in Indianapolis or, if the court decides not to hear oral arguments, a decision.

Burke’s legal team has requested oral arguments in the case. It also has asked the court to expedite its decision.

In the brief released Friday, Bennett’s team objected to an expedited decision, calling it unnecessary; however, the Bennett team did not object to oral arguments in the case.

Neither side could say how soon the Court of Appeals might rule on the case.

Arthur Foulkes can be reached at (812) 231-4232 or arthur.foulkes@tribstar.com.

        

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