Bloomington city council votes to offer staff job to current deputy without a search

cropped 11-19-2019 sherman and company IMG_0415
City clerk Nicole Bolden, deputy administrator/attorney Stephen Lucas, and administrator/attorney Dan Sherman confer during a procedural debate by the city council in November last year. (Dave Askins/Beacon)

On Wednesday, Bloomington city councilmembers voted 9-0 to make an offer to Stephen Lucas to assume the role of council attorney/administrator on Aug. 1.

That’s the day after Dan Sherman retires from the job, after around 30 years of service. Lucas is Sherman’s current deputy.

Council president Steve Volan and and vice president Jim Sims were tapped by their council colleagues to sort out the details with Lucas, assuming he accepts the offer. When asked by councilmembers, Lucas had indicated his interest in the upcoming open position.

Sherman gave a notice of his retirement in mid-May, but his intention to leave the post around the midpoint of this year was reported as early as late summer last year.

Councilmembers did not deliberate on Wednesday’s motion before voting. They were acting on the recommendation of the council’s four-member administration committee, which had met last Friday and voted 3–0 to recommend to the council that Lucas be made the offer. (Councilmember Dave Rollo did not attend Friday’s committee meeting.)

If Lucas accepts the position, it will mean the position gets filled without advertising it and without a search. Conducting a search is not a legal requirement.

According to the state’s 2019 salary database Lucas was paid $47,262 as deputy last year.

Council president Steve Volan confirmed to The Square Beacon that after Sherman leaves, the intent is to maintain the same salary range for the position—grade 12, which is the highest in the city, the same as the deputy mayor’s.

The promotion to attorney/administrator with its salary grade 12, will give Lucas at least a 50-percent pay boost—to $72,565, which is the bottom end of the range. Grade 12 ranges from $72,565 to $130,619. In 2019, Sherman was paid $92,730.

According to Lucas’s Linkedin resume, he’s been on the job as attorney/administrator for about nine months. Before that he was city clerk Nicole Bolden’s chief deputy for about three years. At the administration committee meeting, Bolden said to the committee about Lucas, “Excellent choice, I commend you!”

Lucas’s other work as an attorney, after graduating from Indiana University School of Law in 2014, was for a couple of years as an associate attorney at Pittman, Emery & Nikirk, a Bedford firm.

At Friday’s administration committee meeting Volan opened the discussion by saying that he had, during a two-week period in March and April, talked to all the councilmembers individually.

Volan reported that he had asked everyone about their preference for a process. “Not only did each member individually, without me prompting them, suggest that we did not necessarily need to open a public process, literally every member of council said, ‘I don’t understand why we wouldn’t just hire Stephen Lucas.'”

Lack of search process, recent anti-racism resolution

The decision to make Lucas an offer without advertising the position comes less than a month after the council passed an anti-racism resolution. The resolution starts off:

WHEREAS, the City of Bloomington has a committed interest in promoting the … inclusiveness of all community residents and has a responsibility to oppose, and aid in eradicating, systemic racism…

Lucas helped craft the resolution on which councilmember Jim Sims was lead sponsor. Sims is the only Black member of the Bloomington city council.

Sims responded to The Square Beacon’s query about how he would reconcile a resolution calling for eradication of systemic racism with his support of a hiring process that can be considered a historically racist structure—a process that does not include recruitment of a diverse pool of applicants.

Sims allowed that the resolution has some connection to the hiring process, but sees the issue as a matter of timing. He said, “We’ve got a person right now [Lucas] who can do the job,” adding that he’s “pretty damn good at it.”

If the council takes the time to do a search, interview candidates, but winds up settling on Lucas anyway, that would leave a lot of time to fill the deputy’s position before Sherman departs at the end of July.

Sims said for the subsequent filling of the deputy’s position there would be a “full, wide net cast for folks who could fill that position.” He cautioned that just because a diverse applicant pool is recruited doesn’t mean that the person hired will necessarily come from a historically underserved community.

Department heads, need for a search process, direct reports

“By the job description, the attorney/administrator is de facto department head for the council,” Volan said, at Friday’s administration committee meeting, adding that “the attorney/administrator hires the staff who serve the council other than himself.”

The idea is that the hire of a “department head,” as contrasted with other positions, doesn’t require a search process.

Certainly the status of a position as a “department head” is crucial in the city’s employment manual in connection with hiring processes. “Department heads” are defined to be among the positions that can be “appointed” and thus not subjected to a recruitment and hiring process.

But job description not a significant attribute of “department heads” in the city’s employee manual. The definition of department heads is made by a fixed list of positions, followed by a description of one crucial attribute: Any other department heads report directly to the mayor.

As a practical matter all the department heads at the city of Bloomington report to the deputy mayor. Most of the “department heads” listed out in the employment manual are mentioned somewhere in state law or local code as required to exist. But at least one “department head” doesn’t seem to appear in statute or local code: administrative assistant to the mayor.

The city’s employee manual doesn’t apply to the city council, according to the city’s corporation counsel, Philippa Guthrie. She told The Square Beacon: “While Council members are paid by the City, the Council is technically a separate animal composed entirely of elected officials which often has its own rules and authority.”

The city’s employee manual could eventually be adopted by the council, along the lines that the council’s rules committee was pursing last fall. One of the council-specific adjustments to the manual could be that a “department head” would be defined as a position that reports directly to the city council.

If that’s the approach that’s taken, there could be as many “department heads” as the city council chooses to hire. For example, the city of Fort Wayne’s city council employs a part-time council attorney and a full-time council administrator.

Executive session under “public official” provision?

At Friday’s administration committee meeting, in just a few minutes it became apparent that the contemplated action by the administration committee would be to recommend to the full council that Lucas be made an offer without an interview process.

Councilmember Sue Sgambelluri wanted to know how the public meeting process could be altered when it came to talking about a search or personnel matters. Sgambelluri said, “We want to be sensitive to candidates for attorney/administrator position, we just need to conduct a search properly and respectfully of candidates.”

The Square Beacon asked Sgambelluri during public commentary time to clarify how events were intended to unfold: Did she intend that a search be conducted in an atmosphere where a council committee had already made a public recommendation to make an offer to someone—before the job had been advertised?

Responding, Sgambelluri said the question “encourages me to put a finer point on my statement… I’d like to replace the words ‘proper search’ with “proper hiring process.” She said she wanted to maintain the confidentiality of any candidates.

Keeping Lucas’s intentions circumspect was a moot point by the time the committee turned to the question of a mechanism that can be used to maintain confidentiality. Under the Open Door Law (ODL), an executive session can be used to keep shielded from their current employer an applicant’s intentions to apply elsewhere.

The ODL’s section on executive sessions—which have to be noticed, but are closed to the public—has a provision that allows for a public body to interview people for jobs:

IC 5-14-1.5-6.1 Executive sessions
Sec. 6.1.
(b) Executive sessions may be held only in the following instances:

(5) To receive information about and interview prospective employees.

But when asked for his advice, on two separate occasions during Friday’s administrative committee meeting, current attorney/administrator Dan Sherman pointed to a different provision of the ODL.

It’s one that allows an executive session to be held under a “public officials” definition. Sherman told committee members: “There is [a provision] regarding appointment of public officials and it looks like the position council attorney/administrator is such.”

IC 5-14-1.5-6.1 Executive sessions
(10) When considering the appointment of a public official, to do the following:
(A) Develop a list of prospective appointees.
(B) Consider applications.
(C) Make one (1) initial exclusion of prospective appointees from further consideration.
Notwithstanding IC 5-14-3-4(b)(12), a governing body may release and shall make available for inspection and copying in accordance with IC 5-14-3-3 identifying information concerning prospective appointees not initially excluded from further consideration. An initial exclusion of prospective appointees from further consideration may not reduce the number of prospective appointees to fewer than three (3) unless there are fewer than three (3) prospective appointees. Interviews of prospective appointees must be conducted at a meeting that is open to the public.

Sherman’s description led to questions from committee members about the possibility that interviews would need to be public. Committee back-and-forth with Sherman established that for the process to fill the deputy’s replacement, they need not use a council committee. Sherman had conducted the hiring process the led to Lucas’s hire.

It’s not clear how the position of council attorney/administrator fits the statutory definition of “public official.”

IC 5-14-1.5-6.1 Executive sessions
Sec. 6.1. (a) As used in this section, “public official” means a person:
(1) who is a member of a governing body of a public agency; or
(2) whose tenure and compensation are fixed by law and who executes an oath.

Here, the relevant “governing body of a public agency” looks like it’s the city council. The attorney/administrator is not a member of the city council. Nor does the tenure and compensation for the attorney/administrator seem to be fixed by law.

Position of attorney/administrator as “officer”

In another context related to his retirement, Sherman analyzed the attorney/administrator position as something similar to the “public official.” He acted on the idea that the position of attorney/administrator is that of an “officer of a political subdivision”—by notifying the Monroe County clerk of his resignation, which is required under a state statute for such officers of political subdivisions.

The examples listed in the statute include judges and elected county officials—they are supposed to notify the governor. The catch-all category “other than those listed” are positions that are supposed to notify the circuit court clerk, as Sherman did.

The statute that allows a city council to employ a council attorney reads in part:
“The legislative body may hire or contract with competent attorneys and legal research assistants on terms it considers appropriate.”

The “may hire” wording for the legislative branch contrasts with the provision in the statute about the executive branch, which uses “shall appoint” wording and a notion of “officers”: “The city executive shall appoint: (1) a city controller; (2) a city civil engineer; (3) a corporation counsel… other officers, employees, boards, and commissions required by statute.”

Next Steps

Final action to hire Lucas as attorney administrator, effective Aug. 1, could take place at the council’s June 3 meeting.

2 thoughts on “Bloomington city council votes to offer staff job to current deputy without a search

  1. No problem with going with the person all council members feel confident can do the job. Do have a problem, however, with the questionable nature of this job. Council can hire an attorney on an ad hoc basis, but where is the constitutional authority to hire an administrator full time. The City Clerk is constitutionally the administrator for the city council, That for decades this distinction has been ignored by city council does not justify continuing the arrangement.

    1. The chance to reflect on the nature of the job would naturally follow from a posted search—because the council would need to write down a job description. At the point of writing down the job description it might have occurred to some councilmember that maybe it would be useful to separate out the “administrator” role from the “attorney” role and post two separate positions. A posting for a “council attorney position” would likely yield a set of better municipal lawyers than one for a combined “council attorney/administrator” position. (Some good lawyers might say: No way did I attend law school so I could prepare city council meeting packets.) By focusing on a separate “administrator” position, it could be refined to exclude the part that is properly the clerk’s role. There are some functions that the current attorney/administrator performs that are not legal work or the clerk’s responsibility. For example, I think the the initial review of Jack Hopkins grant applications (which takes a lot of time) fits that category. But this chance to reflect on the nature of the position was lost, as soon as it was decided not to conduct a search.

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