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. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  2. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  3. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

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  5. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

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