Both Kevin Burke and Duke Bennett showed up early, both with sizable entourages. The two camps — lawyers, wives, children, and associates, avoided each other in the small space outside the courtroom.
Each side was allowed 20 minutes to state its case. And much of what the attorneys argued has been said before — many times, in front of other courts. Burke lost the 2007 election to Bennett but then challenged the result on the grounds Bennett violated the Hatch Act, a federal law barring anyone working for an entity receiving federal funds from seeking public office. Prior to the election, Bennett was director of the not-for-profit Hamilton Center, from which he received just over $2,000 a year in federal money as part of his salary. Burke attorney Ed Delaney says it’s not just Bennett’s salary that shows the now-mayor was ineligible to run.
“He signed off on contracts for $10,000 for a roof, $2,000 or $3,000 for a concrete job, various lawnmower jobs,” Delaney told the court. “So he’s walking around the city of Terre Haute with federal money in his pocket — a small part of his wages — and dispersing funds under a federally-connected program while he’s running for mayor.”
Delaney says Bennett didn’t adequately examine whether he was eligible to run. Delaney says Bennett violated the Hatch Act when he filed for candidacy in February 2007 because he had not also resigned from his job.
“The violation occurred the day that Mister Bennett said ‘I’ll put my doubts aside and I’ll be the candidate,” Delaney said. “The right solution here was if Mister Bennett had questions was not to go to Google, not to go to the internet, and not, as the record shows, to make anonymous phone calls to the federal agency, but to have sought a timely opinion from the federal agency — which surely would have had some credence.”
When challenged by Justice Robert Rucker, Delaney had to admit Burke did not raise the issue before the election, even though he had suspicions. When Delaney took a break, Bennett’s attorney, Bryan Babb, began
“In order for this court to upend that election, it would have to overturn longstanding Indiana election law that does not allow election losers to unseat election winners by disenfranchising unknowledgeable (sic) voters,” Babb said.
The Hatch Act does not cover state employees whose connection with federally funded activities is merely a casual or accidental occurrence of employment.
“Less than one-half of one percent of Hamilton Center’s annual maintenance requests were acted on by Mister Bennett,” Babb said. “If that’s not the definition of a casual occurrence of employment, then I’m not sure what is.”
Babb says the law, as written, is not meant to apply to people like Bennett. But he says differing legal opinions conflict with the way the law was meant to be applied.
“The law doesn’t make much sense,” Babb contended before being interrupted by Justice Frank Sullivan Jr.
“Mister Babb, we deal with laws that don’t make much sense every day,” Sullivan countered. “Do you think we’re bound to follow it?”
“I do not, Your Honor,” Babb responded.
Babb says federal money is so widespread that broadly applying the Hatch Act would sharply shrink the pool of applicants for elected positions. Delaney concluded by broaching the subject of a special election. The Indiana Court of Appeals called for one in its ruling in favor of Burke, but, in a rare occurrence of agreement, neither candidate wanted that outcome. A special election could cost the city of Terre Haute hundreds of thousands of dollars. Bennett says the city is so strapped for cash in the face of rewritten property tax laws that an election could deal a major financial blow to the city. Burke agrees.
“The special election punishes every taxpayer in the city of Terre Haute for Duke Bennett breaking the law,” Burke said. “That’s the problem.”
The Democrat, who served one term in office, says the city doesn’t need a special election. He maintains that since he was the eligible candidate with the most votes in 2007, he should be awarded the job. While Bennett says he would run in a special election, he says he’s been hounded by the case ever since he took office and looks forward to accepting a resolution, whatever that may mean.