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. I have an open CHINS case I failed a urine screen I have since got clean completed IOP classes now in after care passed home inspection my x sister in law has my children I still don't even have unsupervised when I have been clean for over 4 months my x sister wants to keep the lids for good n has my case working with her I just discovered n have proof that at one of my hearing dcs case worker stated in court to the judge that a screen was dirty which caused me not to have unsupervised this was at the beginning two weeks after my initial screen I thought the weed could have still been in my system was upset because they were suppose to check levels n see if it was going down since this was only a few weeks after initial instead they said dirty I recently requested all of my screens from redwood because I take prescriptions that will show up n I was having my doctor look at levels to verify that matched what I was prescripted because dcs case worker accused me of abuseing when I got my screens I found out that screen I took that dcs case worker stated in court to judge that caused me to not get granted unsupervised was actually negative what can I do about this this is a serious issue saying a parent failed a screen in court to judge when they didn't please advise

  2. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

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  4. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.

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