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Reparations Committee erupts in an argument about legal funding streams

Even a city in full support of reparations can run into trouble trying to find legal ways to fund that effort. That was the lesson from June’s Reparations Committee meeting Thursday, June 2, which ended with an array of emotions on display.

Currently, the reparations program was set to be funded with a user tax on recreational cannabis. But not enough money has come in to keep up with the number of applicants eligible for the first round of grants.

Therefore, at last month’s May meeting, members directed City Attorney Nicholas Cummings to investigate other revenue and tax sources to up the current reparations fund by $2.6 million. They suggested Cummings look particularly at the city’s general fund, which has a surplus of $20 million, 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 designated for all tax-paying citizens. Using it could violate the Equal Protection Clause of the US Constitution and open up the program to legal challenges.

Cummings explains

The city attorney clarified that not all cannabis revenue in Evanston goes to the reparations fund, only the revenue the state allows the city to collect from recreational marijuana use.

He also explained the two types of spending in the city budget process: mandatory and discretionary.

  • Mandatory spending, which includes the General Fund, refers to activity traditionally associated with government operations.
  • Discretionary spending, which is subject to review by the city council each year, and is labeled “Other Funds/Special Revenue Funds” in Evanston’s current budget.

“Mandatory spending is meant for city operations that benefit the general welfare and public. [To use these funds] opens up the net for those that can claim discrimination on the basis of equal protection, as an Evanston resident who is expected to receive the benefit of certain dollars,” Cummings said.

He added: “If those dollars are taken away to give direct cash payment, for example, to Black residents, there is the possibility that that person has standing to challenge the programs.”

Cummings said the TIFF (Tax-increment financing) in the Fifth ward and the American Rescue Plan Act (ARPA) funds that have been coming from the federal government can only be used to address inequities in a race-neutral way for the same reason.

He suggested using the funds in a race-neutral way, but targeting other areas.

“That does not mean that the City Council can’t use funds from the general fund, it’s that I would not recommend that.”​​ Cummings said. However, he said he did not see any problem with using the Real Estate Transfer Tax.

Committee members push back

But many committee members disagreed with the recommendations and many in room G300 at Lorraine P. Morton Civic Center erupted in passionate dispute once Cummings finished.

“People get things wrong all the time. And that’s why I think we can solve without solid legal counsel from time to time,” said Fifth Ward Council Member Bobby Burns. “I have not seen anything that suggests that we would lose [in court]we might open it up to more people that have standing, but we won’t lose…”

Committee Chair Peter Braithwaite of the Second Ward recommended committee members accept Cummings’ advice to maintain a “bulletproof” legal basis for the reparation’s program.

Eighth Ward Council Member Devon Reid chimed in and the tone of the meeting changed. “Since we’re using the violent metaphor of bulletproof and sorry, remind folks that bulletproof does not mean you don’t get hit by a bullet, it means that when you do get hit by a bullet you live. So I’ll remind folks that that’s what we’re talking about when we’re talking about bulletproof.”

Burns, Reid and longtime community leader Carlis Sutton all challenged Cummings.

Sutton told the attorney, “The city of Evanston has voted to support a program called reparations… discretionary funds are insufficient to implement this program. Why could you not, as an attorney, investigate other means like surplus income to invest in the committee” so we council keep the commitment they made to the several hundred applicants of the restorative housing program, he ended.

Burns said he appreciated the counsel of attorney Cummings, but believes a gradual tax is not fast enough, and the committee should consider expediting the solution. “The way to do that is to not wait on the cannabis use tax but to use surplus from our general fund in order to provide the amount of funding we need so that we can expedite funding to the beneficiaries,” Burns said.

He asked again for clarification from Cummings about how using general funds might play out. “The reality of the question is, does it make us less likely to lose in court?”

Cummings said the court may determine that they have violated equal protection by taking money away from the general welfare and spending a “suspect 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 both stood firmly on the side of keeping the program as unshakeable as possible, by not pursuing any revenue streams that could make the city’s program vulnerable to legal attack.

“I really look to Nick, for direction, on how we can have a legal framework that is viable, and not these programs that are aspirational,” Rue Simmons said. “If we’re saying we want general funds, and he’s saying he doesn’t advise it. Like he’s the one who has to defend us in court if we get to that point.”

Rue Simmons said that she supported Cummings advice while he continues to explore other state and federal options. Simmons also made another request that the committee formally invite outside institutions to help the city in its work to achieve repair.

The meeting ended with the two sides not finding a solution, continuing to argue and a brief public comment period. The next reparations committee meeting will be July 7.

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