From: Marco DeLucio <mdelucio@zsws.com>
Sent: Tuesday, September 15, 2020, 10:50 AM
Subject: FW: Budget Amendment No 5

All,

The attached Budget Amendment No. 5 proposes a 3% across the board cut to all general fund line items with the exception of debt service. Budget Amendment No. 5 also appears to use all realized savings to add to the Hospitalization line item.

As written, I take this to mean all line items of the General Fund including police and fire budgets are to be cut by 3%.   Because City Council has the power to cut the budget, I believe the proposed amendment is sufficiently specific to allow Council to adopt this Amendment since it appears to be directed to all line items from the General Fund.  As noted last night at the Council meeting, these cuts would cut amounts paid to public safety since public safety line items are included in the General Fund.

In response to comments from other councilpersons, Councilman Weaver indicated that his amendment was not intended to specify any particular cut, but rather as a requirement that the Mayor make a 3% cut to the General Fund in a manner deemed appropriate by the Mayor.  If the proposed Amendment No 5 is intended to require the Mayor to make an overall 3% cut to the General Fund without provide specific cuts, it is our opinion that Amendment No 5 is unenforceable because the City Council, effectively, is abdicating its statutory duty to “reduce any estimated item” from the budget and shifting such responsibility to the Mayor.  It is my recollection, that Councilman Weaver offered a similar amendment in 2018 (for the 2019 budget) and we provided a similar legal opinion at that time on that matter. The City Council must provide an item-by-item reduction if it desires to reduce the Mayor’s proposed budget.

Indiana Code 36-4-7-7(a) provides:

“The fiscal officer shall present the report of budget estimates to the city legislative body under IC 6-1.1-17. After reviewing the report, the legislative body shall prepare an ordinance fixing the rate of taxation for the ensuing budget year and an ordinance making appropriations for the estimated department budgets and other city purposes during the ensuing budget year. The legislative body, in the appropriation ordinance, may reduce any estimated item from the figure submitted in the report of the fiscal officer, but it may increase an item only if the executive recommends an increase. The legislative body shall promptly act on the appropriation ordinance.”

It should be noted that the predecessor statute to Indiana Code 36-4-7-7 stated the following:

“It shall be the duty of the committee of finance of the common council thereupon to prepare an ordinance fixing the rate of taxation for the ensuing year, and also an ordinance making appropriations by items for the use of the various executive departments and other city purposes for the ensuing year. Such ordinance may reduce any estimated item for any executive department, from the figure submitted in the report of the city controller, but shall not increase the same unless recommended by the mayor.”

The term “item” is not defined under Title 36. However, the term “item” is used in other statutes throughout Indiana Code 36-4-7, including:

In short, the Mayor must submit a line item budget for consideration by City Council which estimates the expenditure each department head anticipates. The Mayor’s proposed 2021 budget is a line item budget. Indiana case law doesn’t specifically address the definition of “item,” but an examination of cases supports that City Council must consider each line item. See Gary v. State, 406 N.E.2d 1247 (Ind. Ct. App. 1980)(the provision that an appropriation ordinance may reduce any item but not increase it unless recommended by the mayor did not apply to appropriations for salaries for the police and fire departments, the sole authority to set salaries for the police and fire departments being vested in the common council); Moore v. Kokomo, 60 N.E. 2d 530 (Ind. 1945)(an appropriation for a municipal public improvement did not need to break down the cost of such improvement into detailed items going to make up the whole).

Finally, the predecessor statute to Indiana Code 36-4-7-7 stated:

“It shall be the duty of the committee of finance of the common council thereupon to prepare an ordinance fixing the rate of taxation for the ensuing year, and also an ordinance making appropriations by items for the use of the various executive departments and other city purposes for the ensuing year. Such ordinance may reduce any estimated item for any executive department, from the figure submitted in the report of the city controller, but shall not increase the same unless recommended by the mayor.”

Formerly Indiana Code 18-1-6-6. The former statute makes it even more explicitly clear which “items” were to be considered by City Council – specifically, “any estimated item for any executive department.” Thus, it follows that City Council must consider each item of the budget, not propose an across-the-board tax cut.

The next consideration issue we considered is that once the 2021  proposed budget is submitted by the Mayor, can City Council call upon the Mayor to propose 3% in cuts from the general fund with specifically identifying the line items to be cut? (as Councilman Weaver proposed last night).  It is our opinion that the Council cannot simply order the Mayor to make line item cuts without being specific.

As stated above, Indiana Code 36-4-7-7(a), in part, provides:

“The fiscal officer shall present the report of budget estimates to the city legislative body under IC 6-1.1-17. After reviewing the report, the legislative body shall prepare an ordinance fixing the rate of taxation for the ensuing budget year and an ordinance making appropriations for the estimated department budgets and other city purposes during the ensuing budget year. The legislative body, in the appropriation ordinance, may reduce any estimated item from the figure submitted in the report of the fiscal officer, but it may increase an item only if the executive recommends an increase. The legislative body shall promptly act on the appropriation ordinance.”

The Indiana General Assembly has made it explicit that it the City Council’s duty to reduce any estimate item within the line item budget – the statute utilized the word “shall” to impose a duty upon the Common Council to prepare an ordinance for making appropriations, and by extension within that ordinance, to reduce any estimated item within the proposed line-item budget. However, the statute doesn’t allow the City Council to shift that duty to the Mayor. This is reinforced by the duties imposed upon City Council under Indiana Code 36-6-18:

  In interpreting Indiana Code 36-4-6-18, the Attorney General published several official opinions:

In short, if Councilman Weaver’s comments from last night that  Budget Amendment No 5 is intended to require the Mayor to make cuts totaling 3% to the General Fund without specifically listing the cuts, the City Council is attempting to shift its statutorily imposed duties (as reinforced by official Opinions of the Attorney General) to reduce line budget items by proposing that the Mayor make such cuts. This shifting of responsibility is without merit, and , as such, we believe Amendment No 5 is unenforceable.

Lastly, we believe 36-4-7-7(a) would prohibit the council from increasing the line item for Hospitalization without the consent of the Mayor.

Please let me know if you have any questions or require anything further in this regard

MARCO L. DELUCIO

Braun was asked directly why he doesn’t support the kind of help Gov. Eric Holcomb and state officials have requested.

Attorney General Curtis Hill said today that despite steady resistance from a Southern Indiana animal exhibitor previously found in violation of animal welfare laws, his office will work tirelessly this week to ensure that all remaining animals kept at properties operated by that exhibitor are removed and handed over to appropriate caregivers by the Indianapolis Zoological Society, whom a court appointed as receiver on Sept. 10.

On Monday, the Office of the Attorney General (OAG) filed an emergency motion asking a court to issue a judgment against Timothy Stark — director of the nonprofit organization Wildlife in Need (WIN) — for allegedly removing animals this month and/or concealing them from authorities; and for allegedly inciting violence toward the Indianapolis Zoological Society. A judge gave Stark until 4 p.m. Tuesday to tell authorities the locations of all missing animals.

In court documents, OAG attorneys cited the absence of many animals documented to be at WIN’s Charlestown properties just a week earlier. These animals include six spider monkeys, two toucans, one pied crow, one African grey parrot, two macaws, one wolf, one caracal, one ocelot, three fishing cats, two cougars, two Asian small clawed otters, one prehensile porcupine and two African crested porcupines. Also cited was the concealment of several animals including one sloth, two Debrazza monkeys and three booted macaques.

All told, OAG staff cited the absence or concealment of approximately $169,500 worth of animals that had been at WIN’s properties just days earlier. Some of the animals were later found in the back of a closed box truck located off of WIN’s premises on a neighbor’s property. The animals lacked food, water, lights and ventilation. An Indianapolis Zoo veterinary team gave them prompt attention upon their discovery.

According to court documents, Stark also posted a Facebook video in which he called upon followers to obstruct authorities’ efforts to remove animals, saying they should “go in there and tear the f—–g place up.” He chided followers based on his apparent perception that they were displaying cowardice. “No one wants to get into it because they think they might get arrested or whatever,” he said. “For what? Standing your f—–g ground? All of these worthless n—–s out there f—–g protesting, rioting right now. They’re not getting arrested.”

This week, meanwhile, OAG staff members have continued to monitor the removal of animals from the Charlestown properties as Indianapolis Zoo officials take them into custody.

Removal of the animals began Sept. 11 and remains ongoing. In addition to OAG and Indianapolis Zoo staff, authorities from the Indiana State Police and Clark County Sheriff’s Office are helping facilitate the animals’ removal.

On Aug. 28, a Marion Superior Court judge approved the state’s removal of all WIN’s animals except large cat species, which are set to be removed in the near future as a result of a ruling in a federal lawsuit brought by People for the Ethical Treatment of Animals (PETA).

Starting at 9 a.m. Sept. 11 and for nearly two hours thereafter, Stark refused access to the animal removal team, yelling at them and demanding a conference with the court. Later that afternoon, a Marion Superior Court judge instructed Stark by phone to comply with the court’s order and stop obstructing the removal of animals.

A court order issued Sept. 10 directed law enforcement personnel to “take all measures deemed in their discretion to be necessary to ensure the safety of all involved in the animal removal.”

WIN’s directors have claimed over the years to rescue and rehabilitate wildlife before returning animals to their native habitats. In reality, Attorney General Hill said, the nonprofit organization has a history of abusing animals, neglecting to provide basic necessities to animals and forcing animals to live in deplorable conditions. Many of WIN’s animals have been exotic species native to other countries.

Further, contrary to its stated purpose as a nonprofit corporation, WIN allegedly has failed to return animals to their native habitats and misapplied assets purportedly collected for animal care.

In February, following a months-long investigation, Attorney General Hill took legal action against WIN, alleging that the nonprofit for years has been used by its director, defendant Stark, to embezzle assets for his own purposes. The lawsuit also seeks WIN’s dissolution and the return of embezzled assets.

As a part of this case, the OAG is taking steps for preliminary relief and seeking to ensure that the animals receive proper care.

“Our presence at WIN’s properties is to ensure that the court’s orders are carried out,” Attorney General Hill said. “The order is to preserve the assets of a nonprofit that are at risk, and in this case those assets are the animals. The removal of the animals ensures their preservation and welfare. Our office is moving as quickly as we can to get this case to trial.”

According to court documents, Stark has a history of hoarding animals in deplorable living conditions, abusing and neglecting animals, trafficking animals, hiding animals from government authorities and attempting to move WIN animals out of state. The state’s allegations include horrifying details related to Stark’s methods of “euthanasia” and his abuse of animals in his care.

Between 2012 and 2018, WIN’s number of animals reported to the U.S. Department of Agriculture increased from 43 to 293. On Feb. 3, 2020, that agency ordered Stark’s USDA exhibitor license revoked based on repeated violations of the Animal Welfare Act and a history of willful non-compliance.