Two seats on the five-member board of the Bloomington Transit board of directors have been listed as vacant on the city’s board and commission website since Aug. 1.
At Tuesday’s meeting of the city council’s four-member standing committee on transportation, they decided to use a couple of group interviews to consider just seven of eight applicants for the two vacant BT board positions.
Not in the mix for the committee’s group interviews will be Republican Andrew Guenther, who ran for the District 2 city council seat in 2019 that was won by Democrat Sue Sgambelluri.
Committee member Isabel Piedmont-Smith objected to the inclusion of Guenther, because he is currently a party to a lawsuit against the city of Bloomington over his appointment to a plan commission seat.
Supporting Piedmont-Smith’s position were the three other members of the committee: Steve Volan, Ron Smith, and chair Kate Rosenbarger.
The committee will make a recommendation to the city council, which will make a final decision. The city council appoints three of the five seats. The mayor appoints the other two.
The two incumbents for the seats on the BT board now listed as vacant are Nancy Obermeyer and Alex Cartwright. They will be part of the set of seven who are being invited to sign up for slots for the group interviews. At the same time the transportation committee met on Tuesday, Obermeyer and Cartwright were handling the business of the board at its regular monthly meeting.
Under the state statute on public transportation corporations, the BT board is required to be balanced for affiliation with political parties.
Obermeyer is a Democrat and Cartwright is a Republican, assuming that this June they both participated in the same party’s primary as in 2019. Participation in the most recent primary of a party is one way the state statute defines party affiliation.
Based on the party affiliations of the other three BT board members, it doesn’t look like it would be possible to fill both vacant seats with Democrats.
Other applicants for the BT board appointments who are public figures include Vauhxx Booker and Daniel Bingham, who both participated as candidates in the 2019 Democratic Party city council primary. Randy Paul, who ran as a write-in Green Party candidate for county commissioner this year, is also in the mix for a BT board appointment.
Piedmont-Smith raised her objection to interviewing Guenther about a half hour into the committee meeting, which lasted just about 35 minutes. The committee had by then settled on a group interview process for making recommendations to the full council.
Piedmont-Smith floated the question by saying, “Andrew Guenther is currently involved in litigation against the city of Bloomington. So I don’t know if it’s appropriate for us to consider him for this post.”
Committee member Ron Smith said he thought it might be useful to get an opinion from Stephen Lucas, the city council’s attorney.
Piedmont-Smith replied: “I don’t know how important that is to me—the legal aspect. I think it’s the principle of the matter that: Here’s somebody who’s suing the city of Bloomington. And he wants us to put him on a commission. I just—it just bothers me.”
The other committee members did not disagree with Piedmont-Smith, but did not immediately express support. They came around quickly, when Piedmont-Smith put the question to them: “We have no legal obligation to interview him or to appoint him. And I’m saying that I’m not inclined to even interview him because he is currently suing the city. Anybody? Is anybody with me on that?”
Volan replied, “I think I am. I think I would like to accept that.”
Rosenbarger agreed, “I’m OK with that.” Rosenbarger added, “There’s going to be other commission positions opening up. So this isn’t a now-or-never situation and might make sense to just wait [the lawsuit] out.”
The lawsuit, filed about six months ago, is about Guenther’s claim to a Bloomington plan commission seat. He and Monroe County GOP chair William Ellis contend that Ellis had the lawful right to appoint Guenther to the city plan commission and that Guenther is the rightful appointee to the Bloomington plan commission.
One of the questions of law involved in the lawsuit is whether the statute that determines party affiliation for partisan balanced boards and commissions requires some party affiliation or other.
A question of law that might get answered in this year’s normal course of making the BT board appointments is how term lengths are defined for public transit board members.
The city of Bloomington appears to treat the five positions as having four different term lengths: one 1-year seat, two 2-year seats, one 3-year seat, and one 4-year seat.
Support for that scheme looks like it could be found in the state statute on public transportation corporations. [IC 36-9-4-15]
IC 36-9-4-15 Cities; public transportation corporations; board of directors; membership
(a) The board of directors of a public transportation corporation in a city consists of either five (5) or seven (7) directors, as determined by the city legislative body.
(b) If the board of directors consists of five (5) directors, they are:
(1) two (2) directors appointed by the city executive, for terms of one (1) and two (2) years, respectively; and
(2) three (3) directors appointed by the city legislative body, for terms of two (2), three (3), and four (4) years, respectively.
But a different section of the state code raises a question: Are those multiple-length terms intended to set the initial term lengths when a public transportation corporation is first established, but not for subsequent appointments?
It’s this section, which also appears to give Obermeyer and Cartwright the ability to continue to serve on the board, even though their terms have been expired:
IC 36-9-4-18 Board of directors; vacancies
(a) On the expiration of the term of office of a director of a public transportation corporation, the appointing authority shall appoint a director for a term of four (4) years and until the director’s successor is appointed and qualified.
(b) If a director leaves office before the director’s term has expired, the appointing authority shall appoint a new director to serve the remainder of the term.
IC 36-9-4-18 was amended by the state legislature in 2017 to make the pronouns gender-neutral.
If that section of the state statute were to be interpreted as defining four-year terms for all public transportation board appointees, after the initial terms of the founding board expire, one analysis could be that Obermeyer and Cartwright’s seats are not, in fact, vacant.
The Square Beacon has asked the city council’s attorney and the city of Bloomington’s attorney for their take on the term-length question.