The member of a town’s advisory plan commission who was appointed to a four-year term, then unanimously recalled, will be allowed to go forward with his lawsuit stemming from his removal, the Indiana Court of Appeals ruled.
Thomas Arflack was appointed by the Chandler Town Council to fill a vacant position on the town’s Advisory Plan Commission. The council then voted to reappoint him Jan. 6, 2014, after his previous term ended. Two weeks later, the council unanimously recalled its vote approving him to the commission and appointed his replacement on March 17, 2014.
Arflack filed a complaint for declaratory and injunctive relief, asserting due process violations because the town council did not provide him with notice. He also claimed that the removal was invalid under I.C. 34-14-1-2. He sought to complete his four-year term. The trial court granted Chandler’s motion to dismiss.
In Thomas L. Arflack v. Town of Chandler, Indiana; Chandler Town Council; and Town of Chandler Advisory Plan Commission, 87A01-1406-PL-273, Chandler asserted that Arflack failed to timely file his complaint pursuant to I.C. 34-13-6-1. It claimed that since he was removed from the commission on Jan. 21, 2014, he had 30 days from that date to file his complaint. Since he filed it April 4, it argued he filed outside the statutory period.
But no cause of action accrued on Jan. 21 because the town council failed to notify Arflack in writing of the vote to remove him and he statutorily continued to serve until his successor was appointed. Therefore, his complaint was well within the 30-day period, Judge Patricia Riley wrote.
Chief Judge Nancy Vaidik wrote in a separate concurring opinion that the majority went beyond testing the legal sufficiency of his complaint and resolved in his favor Arflack’s claim that he could only be removed for cause and was entitled to written notice. She would simply reject the town council’s claim that his complaint is untimely and leave it up to the trial court to determine for-cause removal.
The judges found that Arflack’s complaint sufficiently asserted a factual scenario in which a legally actionable injury has occurred and his failure to comply with the pleading requirements of T.R. 9.2(A) does not warrant dismissal of his complaint. The case is remanded for further proceedings.