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. Bob Leonard killed two people named Jennifer and Dion Longworth. There were no Smiths involved.

  2. Being on this journey from the beginning has convinced me the justice system really doesn't care about the welfare of the child. The trial court judge knew the child belonged with the mother. The father having total disregard for the rules of the court. Not only did this cost the mother and child valuable time together but thousands in legal fees. When the child was with the father the mother paid her child support. When the child was finally with the right parent somehow the father got away without having to pay one penny of child support. He had to be in control. Since he withheld all information regarding the child's welfare he put her in harms way. Mother took the child to the doctor when she got sick and was totally embarrassed she knew nothing regarding the medical information especially the allergies, The mother texted the father (from the doctors office) and he replied call his attorney. To me this doesn't seem like a concerned father. Seeing the child upset when she had to go back to the father. What upset me the most was finding out the child sleeps with him. Sometimes in the nude. Maybe I don't understand all the rules of the law but I thought this was also morally wrong. A concerned parent would allow the child to finish the school year. Say goodbye to her friends. It saddens me to know the child will not have contact with the sisters, aunts, uncles and the 87 year old grandfather. He didn't allow it before. Only the mother is allowed to talk to the child. I don't think now will be any different. I hope the decision the courts made would've been the same one if this was a member of their family. Someday this child will end up in therapy if allowed to remain with the father.

  3. Ok attorney Straw ... if that be a good idea ... And I am not saying it is ... but if it were ... would that be ripe prior to her suffering an embarrassing remand from the Seventh? Seems more than a tad premature here soldier. One putting on the armor should not boast liked one taking it off.

  4. The judge thinks that she is so cute to deny jurisdiction, but without jurisdiction, she loses her immunity. She did not give me any due process hearing or any discovery, like the Middlesex case provided for that lawyer. Because she has refused to protect me and she has no immunity because she rejected jurisdiction, I am now suing her in her district.

  5. Sam Bradbury was never a resident of Lafayette he lived in rural Tippecanoe County, Thats an error.

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