Even a city that fully supports reparations may have difficulty finding legal ways to fund the effort. That was the lesson of the June Reparations Committee meeting, Thursday, June 2, which ended with a series of emotions.
Currently, the remediation program was to be funded by a recreational cannabis use tax. But there is not enough money to keep up with the number of applicants eligible for the first round of grants.
Therefore, at last May’s meeting, the members asked City Attorney Nicholas Cummings to investigate other sources of revenue and taxes to increase the current repair fund by 2, $6 million. They suggested Cummings look in particular at the city’s general fund, which shows a $20 million surplus, and the city’s real estate transfer tax.
Cummings Verdict? He said he did not advise the committee to use general funds because the money is for all taxpaying citizens. Its use could violate the Equal Protection Clause of the US Constitution and open the program to legal challenges.
The city attorney clarified that not all cannabis revenue in Evanston goes to the reparations fund, only revenue that the state allows the city to collect recreational marijuana.
He also explained the two types of spending in the city’s budget process: mandatory and discretionary.
- Compulsory expenditures, which include the general fund, refer to activities traditionally associated with government operations.
- Discretionary spending, which is subject to review by City Council each year, and is labeled “Other Funds/Special Revenue Funds” in Evanston’s current budget.
“Mandatory expenditures are for city operations that benefit the general welfare and the public. [To use these funds] opens the net to those who can claim discrimination on the basis of equal protection, as an Evanston resident who should receive certain dollars,” Cummings said.
He added, “If those dollars are withdrawn to give a direct cash payment, for example, to black residents, that person may have standing to challenge the programs.”
Cummings said TIFF (tax increase funding) in the Fifth Ward and American Rescue Plan Act (ARPA) funds that came from the federal government could only be used to address inequity in a neutral way. racially for the same reason.
He suggested using the funds in a racially neutral way, but targeting other areas.
“That’s not to say the city council can’t use funds from the general fund, it’s that I wouldn’t recommend it,” Cummings said. However, he said he saw no problem using the real estate transfer tax.
Committee members push back
But many committee members disagreed with the recommendations, and many in Room G300 at the Lorraine P. Morton Civic Center erupted in a heated argument once Cummings finished.
“People are wrong all the time. And that’s why I think we can work it out without solid legal advice from time to time,” said Fifth Ward council member Bobby Burns. “I haven’t seen anything to suggest that we would lose [in court]we could open it up to more people who have status, but we won’t lose…”
Committee chairman Peter Braithwaite of the Second Ward recommended that committee members accept Cummings’ advice to maintain a “bulletproof” legal basis for the reparations program.
Eighth Ward council member Devon Reid stepped in and the tone of the meeting changed. “Since we use the violent metaphor of bulletproof and sorry, remind people that bulletproof doesn’t mean you’re not hit by a bullet, it means when you’re hit by a bullet, you live. So I will remind people that this is what we are talking about when we talk about bulletproof.
Burns, Reid and longtime community leader Carlis Sutton have all challenged Cummings.
Sutton told the attorney, “The City of Evanston has voted to support a program called reparations…there are insufficient discretionary funds to implement this program. Why can’t you, as a lawyer, look for other avenues like surplus income to invest in the committee” so that we can fulfill the commitment they made to the several hundred applicants to the restorative housing, he concluded.
Burns said he appreciates counsel Cummings’ advice, but feels a phased-in tax isn’t fast enough and the committee should consider accelerating the solution. “The way to do this is not to wait for the cannabis consumption tax, but to use the surplus from our general fund to provide the amount of funding we need so that we can accelerate funding to beneficiaries,” Burns said.
He again sought clarification from Cummings on how the use of the general funds might play out. “The reality of the question is, does this make us less likely to lose in court?”
Cummings said the court could determine they breached equal protection by taking general welfare money and spending a “suspicious class”.
Former council member Robin Rue Simmons, who was the sponsor and champion of the reparations vote in Evanston, and second ward council member Peter Braithwaite, were both strongly in favor of keeping the program as unwavering as possible, by not looking for any source of revenue that could make the city’s program vulnerable to legal attack.
“I’m really looking to Nick, how we can have a workable legal framework, not these ambitious programs,” Rue Simmons said. “If we say we want general funds, and he says he’s not advising it. As if he was the one who had to defend us in court if we got to this point.
Rue Simmons said she supports Cummings’ advice as he continues to explore other state and federal options. Simmons also asked the committee to officially invite outside institutions to help the city with its repair work.
The meeting ended with both sides failing to find a solution, continuing to argue, and a brief public comment period. The next meeting of the repairs committee will take place on July 7.