ELKHART — City Council on Tuesday night considered a COVID-19 emergency response but voted not to approve the measure immediately.
The council did have the chance to approve emergency powers for Mayor Rod Roberson, along with other measures and a $500,000 COVID-19 Emergency Response Fund, and though no council members appeared to be against the ordinance as a whole, three voted against its immediate approval.
Since a unanimous vote is required for suspending the council’s own rules, which demand that ordinances are passed over at least two separate meetings, the three votes against suspending those rules were more than enough.
If approved on Friday, the COVID-19 Emergency Response Fund may be used as determined by Mayor Roberson to buy supplies, pay employees, contract professional services, and provide space for the homeless who may need isolation from regular homeless shelters.
Roberson could make emergency expenditures from the fund with City Council Brent Curry’s, D-5, approval, subject to the ratification by the City Council after the Indiana public health emergency has ended.
That language, a legal counsel told the council, is copied from the State of Indiana. He admitted that it does not address what happens if the council refuses to ratify.
“That’s not really a vote. That’s a ratification of somebody else’s predetermined approval,” Councilman David Henke, R-3, said.
Councilwoman Mary Olson, R-at-large, said council members should get a call before decisions are made on emergency expenses.
“That would be a way that we could all weigh in,” she said.
Roberson said that making calls to all nine council members could be difficult, which is part of why he asked for the emergency powers for him and Curry. Calling all nine in a conference call would not be legal, according to legal counsel, unless it is advertised as a City Council meeting well ahead of time. However, Curry would be allowed to send all council members a memo describing what action he plans to take.
But Olson was not satisfied that Roberson and Curry would take the council’s power of making appropriations.
“There’s nine of us that were elected, Mayor, along with you, and it’s essential that we all weigh in,” she said.
She said her concern is not based on distrust in Roberson or Curry, but rather that she thought more transparency would be more appropriate.
“This is just a secondary way to ensure that we are ready to move when it’s time to move,” Roberson said, pointing out that Goshen and South Bend had given their mayors similar emergency powers.
The $500,000 for the COVID-19 Emergency Response Fund would come from the Economic Development Local Income Tax Fund. If any of the $500,000 has not been spent at the end of the emergency, it will return to that fund.
Roberson’s chief of staff Dayna Bennett said the city is still determining what employees are essential and non-essential, which determines who will be able to keep working for the city during the emergency. But what is essential is fluid, Bennett said. As an example, employees who drive snowplows might not be essential today, but if it begins snowing tomorrow, that could change.
Human Resources director Kacey Spitzley said about 30 city employees have take-home laptops that would allow them to work from home.
For city employees who need to take leave in relation to the COVID-19 pandemic, recently approved federal legislation provides them with two-thirds of their regular compensation. With the approval of this city ordinance, the city will pay the remaining third, allowing those employees to be compensated at their regular rate for up to 12 weeks.
According to Spitzley, providing full compensating to people forced on leave is a necessary step to make staying with the city rather than seeking other employment an option for those who live paycheck to paycheck.
The city does not plan to hire new staff during the emergency – though several jobs are currently posted – as it would be hard to get new employees into the routines of their work while some staff is at home and the rest of the city is working in an unusual way.
However, a few new hires could be made, Bennett said, specifically mentioning coordinator position for the city’s new 311 effort called MyElkhart. MyElkhart would be the single way residents could bring their day-to-day concerns to the city’s attention, and the 311 coordinator would then take the concern to the right department and assure that it is addressed.
“We feel like, if we had had that person in place already, that there would be some additional platforms that we could use as it relates to communicating to others,” Bennett said.
Mayor Roberson has yet to make a handful of his appointments after he took office on Jan. 1. He has previously said that he would be done with appointments by the time of his State of the City address on March 31. Now, both the address and that self-imposed deadline have been postponed due to the pandemic.
Digital meeting has issues
The emergency ordinance was considered at a special call meeting of the City Council that Roberson announced last week. Yet, he said, the proposed ordinance changed after Holcomb’s Monday announcement of a stay-at-home order beginning Wednesday.
The meeting was held in the City Council Chambers, with only two City Council members physically present. The remaining seven attended through a video conference call that had some issues, including two council members not being able to be heard for much of the meeting. One of them had to make a separate phone call to be heard during a vote.
City Attorney John Espar explained to City Council that the law firm Barnes & Thornburg had been consulted in relation to the meeting and the ordinance and their legality and necessity.
“We are in uncharted waters,” Espar said.
Barnes & Thornburg partner Thomas Pitman said that the meeting Tuesday – without prior publication of the agenda to the public or the press – was legal only because the governor had declared an emergency. Holcomb’s orders were also what allowed most of the City Council members to participate in the meeting digitally.
Councilman Gerry Roberts, D-1, asked why part of the ordinance removes the public’s privilege of the floor portion of City Council meetings during the emergency. Pitman, who took part in drafting the ordinance, said that not allowing public comment would shorten meetings in an effort to prevent the spread of COVID-19.
“The technological tools at our disposal, I think we have the ability for the public to provide input via Facebook Live streaming,” Roberts said. “If we have those means available to us, I think continuing to involve the public in the meeting, giving them the space and the time to voice their concerns to council, that will continue to be important.”
Members of the public made comments and asked questions during the Facebook Live streaming that the city hosted for the meeting. City staff answered those questions, but the public’s concerns were not shared with the council members during the meeting.
Roberts attempted to amend the proposed ordinance to take out the line that would eliminate public participation, but his attempt did not succeed due to confusion over what motion had been made much earlier in the meeting.
To those in the council chambers, it had appeared that Councilman Arvis Dawson, D-at-large, who participated through the conference call, had introduced a motion to suspend council rules to allow considering of the ordinance at the Tuesday meeting.
However, later in the meeting, Dawson – and apparently the six other council members who participated digitally – believed his motion had been to consider the proposed ordinance on first reading.
Although the council clerk and legal counsel said their understanding was that Dawson had proposed to suspend the rules – not to approve the ordinance – the council eventually voted on the motion as if he had done the latter. That was approved in an 8-0 vote, as Councilman Brian Thomas, R-2, could not be heard.
A second motion was then made to suspend council rules to allow the second and third readings as well. That needed to be unanimous, so Thomas was called over the phone. He, along with Henke and Olson, voted no. Therefore, a second meeting will be held at 6 p.m. Friday, March 27.
Thomas, in an interview Wednesday, said he is not against the ordinance but thought it was being rushed.
“This will pass, that’s fine. I just thought we needed a little more discussion about it and a few more questions about it. I didn’t want it to be rushed through,” he said.
The Tuesday meeting lasted three hours, with nothing else on the agenda, but Thomas pointed out that council members had only received the proposed ordinance a few hours earlier and that he had not been able to ask questions.