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. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  2. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

  3. I will agree with that as soon as law schools stop lying to prospective students about salaries and employment opportunities in the legal profession. There is no defense to the fraudulent numbers first year salaries they post to mislead people into going to law school.

  4. The sad thing is that no fish were thrown overboard The "greenhorn" who had never fished before those 5 days was interrogated for over 4 hours by 5 officers until his statement was illicited, "I don't want to go to prison....." The truth is that these fish were measured frozen off shore and thawed on shore. The FWC (state) officer did not know fish shrink, so the only reason that these fish could be bigger was a swap. There is no difference between a 19 1/2 fish or 19 3/4 fish, short fish is short fish, the ticket was written. In addition the FWC officer testified at trial, he does not measure fish in accordance with federal law. There was a document prepared by the FWC expert that said yes, fish shrink and if these had been measured correctly they averaged over 20 inches (offshore frozen). This was a smoke and mirror prosecution.

  5. I love this, Dave! Many congrats to you! We've come a long way from studying for the bar together! :)

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