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MEMORANDUM
Subject: Washington Township IFD Consolidation
Date: July 11, 2006

I have preliminary reviewed the issues surrounding the pending consolidation of the Washington Township Fire Department with IFD into the consolidated city fire department. I have identified three issues that could affect the validity of the pending action.

1. Did the township comply with the notice requirements of the applicable statute?
2. Was there a quorum of the township board present when the township resolution was approved?
3. Can members of the City Council who are firefighters cast a vote on the consolidation resolution?
4. Is the statute on consolidation constitutional?

The first issue is whether the township board complied with the requirements of 1C 36-3-1-6.1, specifically subsection (g) of that statute. That statute says:
A township legislative body, after approval by the township trustee, may adopt a resolution approving the consolidation .... A township legislative body may adopt a resolution under this subsection only after the township legislative body has held a public hearing concerning the proposed consolidation. The township legislative body shall hold such hearing not earlier than thirty (30) days after the date the resolution was introduced.
The facts, as I understand them, are that the township contends that a public hearing held in August of 2005 on a resolution that had been introduced, but not approved by the township trustee, constitutes a public hearing under this statute and that a hearing held a few days after the Trustee had approved a substantially different resolution did not have to be subject to another public hearing. There also seems to be some uncertainty at this point whether or not the initial public hearing or the meeting at which the resolution was adopted were properly called and advertised.

It seems to me the clear intention of the statute is that the public hearing will be held on the resolution that is to be adopted; not on some general resolution on consolidation. If a required hearing was not held and advertised as required by statute, then the actions of the Board in acting on the resolution would be void.
The second issue is whether there was a quorum present at the meeting at which the resolution was adopted and whether that meeting itself was properly advertised. As of the writing of this memorandum, we have not determined whether or not the proper notice was given of that meeting. As I understand the facts, the board meeting was held with only four members present. One of those members was the president of the board who stated during the meeting that she had moved the prior week, but also made some comment to the fact that she did not intend to move her residence until the end of June.
The statute on township boards in Marion County clearly states that the seat becomes vacant when the board member no longer resides in the district. The question will be whether or not the moving of her furniture and her family to another location does, in fact, change her residence. There are really two factors involved in this. The first is the fact that the Evan Bayh case suggests that residence may be a matter of intention, not physical presence. However, the statute does suggest some indications of residence, which would seem, perhaps, to be violated by the actions taken by the president of the board.
Third, there is a question whether or not a firefighter may vote on the consolidation resolution if, in fact, that occurs. There are two issues in that respect.

The first is whether the City Code providing for disqualification of council members on mattes of conflict would be violated by a councilor not abstaining on the issue. The provisions of the Code dealing with that matter are in Section 151-152(b). It would seem to me that the criteria set forth for making the decision, which clearly indicate that four of the five considerations would argue in favor of disqualification. It is hard to believe that a member of the fire department or a member of the family of a firefighter could state that the interest did not affect their independence of judgment. Certainly, the public would not believe that the councilor was voting in a disinterested manner. There seems little need for a particular subject matter knowledge in determining this issue. Undeniably the adoption of the consolidation would have a unique, direct and material affect on the councilor's non-legislative income. It is important to note that subsection (c) of that section requires that the interest of the councilor be challenged by motion to disqualify the councilor prior to the announcement of the vote being taken.

There is a second subsidiary issue of whether or not the statute that allows employees of the city, particularly officers of the police and fire department, may sit on the council is constitutional. The statute that permits that has not been challenged, although the language of the statute would seem to be contrary to a prior Court of Appeals decision on that matter.

Fourth, there may be questions about whether or not the provisions in the consolidation statute are itself constitutional. It is clear that this section on consolidation of fire services is a special statute applicable only to consolidated cities as is stated in subsection (a) of the consolidation section. Under the Supreme Court decision in the South Bend annexation case, there could be an argument made that this is not a proper classification.

A more serious question may be raised about whether or not this provides for the implication of the imposition of special taxes perhaps on persons not receiving the service. The statute fails to provide a separate taxing district for the consolidated city fire department. It makes some inconsistent statements in subsection (h) about the imposition of taxes. While it states that the consolidated city may levy taxes within the consolidated city's permissible tax rate, but that levy limit applies to the consolidated city, which is the county less the excluded cities. Then it goes on to say that "however these taxes may be levied only within the fire special services district and any townships that have a consolidated fire department under this section." Does this mean that the City-County Council could levy a tax separate from the FSSD rate on property in Washington Township? have been involved in the determination of how property taxes are levied and assessed in the consolidated city for at least thirty-six of the thirty-eight years that those taxes have been assessed, and I have no idea how one would determine how the property tax limits apply to the levying of taxes for the payment of the expenses of the consolidated fire department under this section.