Bloomington plan commission vacancy: GOP county chair says he has authority to fill it, picks Guenther

One of the nine seats on the Bloomington plan commission has been vacant since around Jan. 6, when the four-year term for Nick Kappas expired, and the city’s mayor, Democrat John Hamilton, decided not to reappoint him.

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Andrew Guenther at a 2019 city council campaign event. (Square Beacon file photo)

The spot held by Kappas is one of the five seats on the nine-member plan commission that are expected to be appointed by the mayor.

In a departure from that expectation, a press release issued Thursday afternoon, by Monroe County Republican Party chair, William Ellis, says the GOP leader has made the plan commission appointment to fill the vacancy.

The GOP chair’s pick, according to the release, is Andrew Guenther, who’s current chair of the city’s environmental commission. Last year Guenther was a Republican candidate for the District 2 city council, a race that was won decisively by Democrat Sue Sgambelluri.

Why does Ellis think he has the authority to make what is ordinarily a mayoral appointment?

It’s tied to the fact that the five mayoral appointments come with a partisan requirement. No more than three of the five appointments can belong to the same political party.

Ellis is relying on the state law that lays out how vacancies on commissions with partisan requirements are filled, if the vacancy is not filled by the “appointing authority.” In this case the appointing authority is the “city executive,” that is, the mayor.

Under Indiana Code IC 36-1-8-10  if the mayor doesn’t make the appointment to fill the vacancy, that job falls to the chair of the political party to which the member with the expired term belongs:

(d) Notwithstanding any other law, if the term of an appointed member of a board expires and the appointing authority does not make an appointment to fill the vacancy, both of the following apply:

(1) The member may continue to serve on the board for only ninety (90) days after the expiration date of the member’s term.
(2) The county chair of the political party of the member whose term has expired shall make the appointment.

If Kappas were a Republican, then a straightforward application of state law would appear to give Ellis the right to make the appointment.

That’s based on the idea that it’s a statutory 90-day time frame, after the expiration of a term, that determines whether the mayor has or has not filled the vacancy.

The term end date for the seat held by Kappas was Jan. 6, and he served until Jan. 13, according to the press release from Ellis. City clerk Nicole Bolden confirmed to The Square Beacon that those are the dates in the system she uses to track dates for boards and commissions.

A 90-day window, starting from Jan. 13, goes to April 12, which is a few days before Ellis issued his press release.

When reached by The Square Beacon, Bolden allowed for the possibility that the mayor’s office is working from a different term end date. Responding to a query from The Square Beacon, the mayor’s communication’s director, Yael Ksander, said the city was checking the date on a letter sent to Kappas, notifying him that his term would not be renewed. That date is critical to the timeline, Ksander said.

In her response, Ksander did not confirm that the mayor’s office agrees with the GOP analysis of the way the plan commission vacancy should be filled.

Possibly more controversial than the date of his term expiration is the fact that Kappas is not a Republican, based on the current statutory criteria that define party affiliation.

The current version of the statute reads as follows:

[A]t the time of an appointment, one (1) of the following must apply to the appointee:

(1) The most recent primary election in Indiana in which the appointee voted was a primary election held by the party with which the appointee claims affiliation.
(2) If the appointee has never voted in a primary election in Indiana, the appointee is certified as a member of that party by the party’s county chair for the county in which the appointee resides.

Kappas ran as an independent candidate for city council last year in District 3, losing in a close race to Democrat Ron Smith.

In an interview with The Square Beacon late last year, Kappas said he hadn’t ever voted in a primary in Indiana, which The Square Beacon confirmed with voter history records dating back 10 years. He also hasn’t been certified by the Republican Party chair as member of the Republican Party.

The statute does not seem to allow for a plan commission member like Kappas, who has no party affiliation.

But the mayor’s office, in a statement from Ksander to The Square Beacon late last year, sees it this way: “Individuals who have never voted in a primary would generally be considered to have no party affiliation, and therefore such members would not count toward the limit on the number of individuals on a board who share an affiliation.”

The statute has been amended since Kappas was appointed. At the time he was appointed, there was a third way to define political party membership, which was  simply to claim membership.

The statute as amended by Public Law 193 of 2017 reads as follows.

[A]t the time of an appointment, one (1) of the following must apply to the appointee:

(1) The most recent primary election in Indiana in which the appointee voted was a primary election held by the party with which the appointee claims affiliation.
(2) If the appointee has never voted in a primary election in Indiana, the appointee claims a party affiliation.
(3)
The appointee is certified as a member of that party by the party’s county chairman for the county in which the appointee resides.

So at the time of his appointment, Kappas could conceivably have simply claimed membership in some party other than the Democratic Party, to prevent the number of Democrats on the plan commission from exceeding three.

But in a statement to The Square Beacon on Thursday, Ksander, the mayor’s communication’s director, said, “You’re right, Kappas was an independent.”

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Nick Kappas at a 2019 plan commission meeting. (Square Beacon file photo)

If Kappas was not affiliated with any party, and in particular was not a Republican, how is the appointment to fill the vacancy supposed to get made now, if the mayor doesn’t make it?

The press release makes clear that the  Monroe County GOP thinks it’s the Republican Party chair’s job.

Responding to a query from The Square Beacon, Ellis said, “The statute is clear that if there is no primary record, they need certification from the party chair of the minority party to serve.”

From the mayor’s office, there’s was no simple answer on Thursday. Communications director Yael Ksander told The Square Beacon the city’s legal team is exploring the question and more information might be available Friday morning.

Ksander added, “The work of the Plan Commission has not been delayed or somehow interrupted by this vacancy—even with COVID protocols in place the work of the City proceeds.” As an example, Ksander gave the plan commission’s approval on Tuesday of the final version of the unified development ordinance and the conversion map.

If Guenther winds up serving on the plan commission, he’ll join the other Republican on the commission, Brad Wisler. Some of the work will be familiar to him from his service on the city’s environmental commission. Among other responsibilities, that group reviews site plans for proposed developments and forwards recommendations to the plan commission.

Asked if he would continue to serve on the environmental commission, Guenther said, “Nick Kappas served as both EC chair and plan commission appointee. I have no plans to resign at this time, just as he did not. I will no longer vote on EC memos to the plan commission, however.”

Guenther confirmed to The Square Beacon that his schedule is free for May 11 at 5:30 p.m. the next meeting of Bloomington’s plan commission.

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