Bennett’s lawyers file new Hatch ruling appeal

By Arthur E. Foulkes
The Tribune-Star

TERRE HAUTE April 02, 2008 09:28 pm

— The battle for Terre Haute City Hall continues with the latest shots coming from Mayor Duke Bennett’s legal team.
Lawyers for Bennett filed a new appeal with the Indiana Court of Appeals this week asking the court to overturn Vigo Circuit Court Judge David Bolk’s Dec. 21 ruling that Bennett was subject to the Hatch Act while he was running for mayor.
Former Mayor Kevin Burke, who lost the Nov. 6 election to Bennett by 110 votes, earlier had appealed another part of Bolk’s ruling. Burke appealed the part that allowed Bennett to take office because he was no longer in violation of the Hatch Act when he took office on Jan. 1.
Burke is asking the appeals court to reject that part of Bolk’s decision and certify him as mayor.
Bennett, on the other hand, was “obviously fine with [Judge Bolk’s] initial ruling,” said Bryan H. Babb, an attorney for Bennett with Bose, McKinney and Evans in Indianapolis. However, now that Burke has appealed, Bennett decided to ask the appeals court to overturn the part of Bolk’s ruling that said Bennett fell under the Hatch Act when he ran for office.
There are now two appeals arising from the same case, Babb noted.
In the same brief filed Monday, Bennett’s attorneys are asking the appeals court to uphold the part of Bolk’s decision that allowed Bennett to assume office.
Burke contended that Bennett should not have been eligible to run for mayor because he worked as director of operations at the Hamilton Center, a not-for-profit mental health organization that receives federal funding through its Head Start program. The Hatch Act is a federal law that limits the political activity of employees of some not-for-profits that receive federal money.
In December, Bolk ruled Bennett was indeed subject to the Hatch Act; however, Bolk also ruled that Bennett would no longer be in violation of the Act when he took office as mayor. As a result, Bennett took office as mayor. In his ruling, Bolk also noted other avenues had existed for challenging Bennett’s candidacy before Election Day.
In responding to Burke’s appeal, Bennett’s lawyers argue that Bennett’s job at the Hamilton Center involved him only very indirectly with Head Start and did not justify overturning the Nov. 6 election.
“Bennett respectfully contends that any connection he had to the Head Start program while employed at Hamilton Center was not of a character or magnitude … for overthrowing a general election, unseating a current sitting mayor, and foisting onto Hoosiers a candidate who they duly rejected at the polls,” Bennett’s legal argument states.
The Bennett legal brief includes a Hamilton Center organizational chart showing Bennett reported to a different executive director than the director of the Head Start program. It also states that Bennett is not listed as a Hamilton Center Head Start employee.
“Every now and then Bennett would might [sic] have approved a work order for a stopped toilet or a faulty water heater in a Head Start facility, but he did the same thing for all of Hamilton Center,” the brief states.
Bennett’s argument also rejects Burke’s contention that $2,041 of Head Start money went “directly toward” Bennett’s salary. Bennett’s argument calls this a “creative” calculation undertaken after Burke sued to have Bennett disqualified. The brief also quotes Bolk referring to Bennett’s role with Head Start “essentially non-existent.”
Lawyers for Burke said they will wait to comment on Bennett’s latest filing when they have their own response prepared. That response is due around April 18. In their original appeals brief, Burke’s attorneys said Bolk’s decision to allow Bennett to take office “created a loophole that does not exist under Indiana election law.”
Burke, speaking Wednesday, said he is not surprised by Bennett’s counterappeal or his arguments. “There’s nothing new in the brief,” Burke said. “All of that was argued in front of Judge Bolk. Nothing in there surprised us.”
Bennett was out of town Wednesday afternoon and could not be reached for comment.
Arthur Foulkes can be reached at (812) 231-4232 or arthur.foulkes@tribstar.com.