ILNews

Court: Official can take office once bonded

Jennifer Nelson
January 1, 2008
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Elected public officials who haven't secured bond by the date they are to take office can begin their elected position once they have obtained the bond, ruled the Indiana Court of Appeals.

At issue in Tom Shetler Sr. and Suzan Nicholson v. Linda K. Durham, No. 82A01-0706-CV-273, is whether Durham can hold office as elected trustee of Knight Township even though she failed to secure bond by her official start date.

Durham was elected trustee in November 2006 and met with the incumbent trustee and his chief deputy, Donald Boerner. Boerner agreed to also be Durham's chief deputy and began the process of obtaining the bond required by Indiana Code Section 5-4-1-9 for officials.

When Durham took office on Jan. 1, 2007, and was given the oath of office, she still did not have bond because there was an issue in obtaining it while Durham was in the midst of Chapter 13 bankruptcy proceedings. In late January 2007, Durham was forced to relinquish the keys to the trustee's office until she was able to get the bond.

The Knight Township Board passed a resolution in February 2007 that Durham could not serve as trustee and is barred from taking office because she failed to get the bond before her term began, pursuant to I.C. 5-4-1-9. Durham finally received bond Feb. 16, 2007, which bonded her from Feb. 1, 2007, to Feb. 1, 2008.

When the board failed to recognize her as trustee once she was bonded, Durham filed for declaratory judgment, which the trial court found in her favor.

The Court of Appeals affirmed the trial court decision, finding I.C. 5-4-1-9 does not bar an elected official from taking office once they have received bond, even if they did not have it by the date their term was to start.

The section includes the sentence, "If the officer fails to give the bond before that time, the officer may not take office." The board argued this prevents any elected official from taking office if they fail to obtain the bond before their start date.

Prior to 1980, when the current wording of the statute took effect, the statute said if an official did not acquire the bond within 10 days after taking office, the office "shall be vacant." However, the Indiana Supreme Court held that if there was a delay in obtaining the bond and the elected person was not at fault for the delay, the person will not be deemed to have abandoned the office.

"We believe that the supreme court's holding, which applied to a form of the statute that was more mandatory in nature than the current form of the statute, which is devoid of the reference to vacancy or forfeiture, is still applicable," wrote Senor Judge George B. Hoffman Jr. As such, Durham is not required to give up her office.
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  1. My husband financed a car through Wells Fargo In dec 2007 and in Jan 2012 they took him to court to garnish his wages through a company called autovest llc . Do u think the statue of limitations apply from the day last payment was received or from what should have been the completion of the loan

  2. Andrew, you are a whistleblower against an ideologically corrupt system that is also an old boys network ... Including old gals .... You are a huge threat to them. Thieves, liars, miscreants they understand, identify with, coddle. But whistleblowers must go to the stake. Burn well my friend, burn brightly, tyger.

  3. VSB dismissed the reciprocal discipline based on what Indiana did to me. Here we have an attorney actually breaking ethical rules, dishonest behavior, and only getting a reprimand. I advocated that this supreme court stop discriminating against me and others based on disability, and I am SUSPENDED 180 days. Time to take out the checkbook and stop the arrogant cheating to hurt me and retaliate against my good faith efforts to stop the discrimination of this Court. www.andrewstraw.org www.andrewstraw.net

  4. http://www.andrewstraw.org http://www.andrewstraw.net If another state believes by "Clear and convincing evidence" standard that Indiana's discipline was not valid and dismissed it, it is time for Curtis Hill to advise his clients to get out the checkbook. Discrimination time is over.

  5. Congrats Andrew, your street cred just shot up. As for me ... I am now an administrative law judge in Kansas, commissioned by the Governor to enforce due process rights against overreaching government agents. That after being banished for life from the Indiana bar for attempting to do the same as a mere whistleblowing bar applicant. The myth of one lowly peasant with the constitution does not play well in the Hoosier state. As for what our experiences have in common, I have good reason to believe that the same ADA Coordinator who took you out was working my file since 2007, when the former chief justice hired the same, likely to "take out the politically incorrect trash" like me. My own dealings with that powerful bureaucrat and some rather astounding actions .. actions that would make most state courts blush ... actions blessed in full by the Ind.S.Ct ... here: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS

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