In Walter Thompson v. Mark Hays http://www.in.gov/judiciary/opinions/pdf/06060701mgr.pdf, 72A01-0607-CV-294, the court upheld a Scott County ruling last year dismissing a claim filed by local resident Walter Thompson, who filed a complaint against Mark Hays following the November 2002 general election. Thompson accused Hays of holding the dual offices and sought an order to remove him as a deputy sheriff and reimburse the county for pay he'd accepted since taking the elected commissioner's job.
The claim arose in March 2006, just before a primary election in which Hays was a candidate for re-election as a commissioner, according to a footnote in the court ruling. The trial court dismissed the complaint for failure to state a claim.
Appellate judges wrote that the decision today is consistent with existing caselaw and legislative intent, though they acknowledged the Indiana Attorney General once reached an opposite conclusion in 1962, which predated the statutes and court opinions.
The court has held previously that city police officers and deputy town marshals are employees, rather than "public officers." It also refers to Indiana Code Section 36-8-10-11c(1), which provides that a county police officer may "be a candidate for elective office and serve in that office if elected."