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Justices consider ouster of Yorktown clerk-treasurer

September 27, 2018

Choosing to forcibly remove an elected official from office is a weighty decision, one that requires government officials to go against the will of the voters — presumably for the public good. In theory, an impeachment occurs only when an elected officer has egregiously failed to perform his or her duties, leaving no choice but to force the official to vacate her office.

But how should governments define egregious failures, and what truly constitutes neglect of duties? The Indiana Supreme Court is grappling with those questions as it considers whether to grant transfer to a case that seeks to remove the Yorktown clerk-treasurer from her elected position.

The high court heard oral argument on petition to transfer in State of Indiana v. Beth A. Neff, 18A02-1708-IF-01933, Thursday morning. The case traces back to 2013, when a State Board of Accounts audit revealed that Yorktown clerk-treasurer Beth Neff, who first took office in 2004, failed to properly reconcile the town books in 2012. A followup audit in 2016 revealed similar failures to reconcile from 2013 to 2015, prompting Delaware County Prosecutor Jeffrey Arnold to move for Neff’s removal in July 2017.

The trial court declined to order Neff’s removal, finding that though she did fail to properly reconcile town accounts, her failures were the result of misfeasance, not nonfeasance. But the Indiana Court of Appeals disagreed, ruling in May that “Neff’s failure, over a period of years, to perform a critical, official and mandatory duty for a clerk-treasurer falls squarely within the confines of Article VI Sections 7 and 8 of the Indiana Constitution and our legislature’s response via the Removal Statute.”

Neff’s counsel, Fishers attorney Jeffrey M. Heinzmann, urged the justices Thursday to grant transfer and overturn that decision, arguing the lower appellate court misinterpreted the Removal Statute, Indiana Code section 5-8-1-35. Relying on State v. McRoberts, 207 Ind. 293, 192 N.E. 428 (1934), and State ex rel. Ayer v. Ewing, 231 Ind. 1, 106 N.E.2d 441 (1952), Heinzmann said the Removal Statute only allows elected officials to be removed when they neglect to fulfill all of their duties.

According to Heinzmann, McRoberts and Ayer expressly declined to remove public officials for failing to fulfill just one of their duties, whereas the COA did the opposite in allowing for Neff’s removal based solely on her failure to reconcile the books. The attorney pointed to evidence in the record showing Neff did attempt to correct the errors identified by the SBA and did successfully complete other portions of her job – evidence her attorney said would allow her to remain in office under McRoberts and Ayer.

But Patricia McMath, a deputy attorney general arguing on behalf of the state, offered a different reading of McRoberts and Ayer. Those cases explained why removal for failure to fulfill one duty was not appropriate under the circumstances of the cases, but they did not stand for the proposition that failure to fulfill a single duty could never warrant removal, she said.

Though the state urged the court to deny transfer and let the COA decision stand, McMath also offered a three-part test for the court to adopt if it chooses to grant transfer. Under the test, the first factor for determining whether an elected official can be removed is to answer the question of whether that official failed to perform a duty. The second question would be to determine whether that duty was essential or critical to the elected position, and the final question would be to determine whether the neglect was an isolated incident.

The third factor is likely where the line for neglect warranting removal would be drawn, McMath said, answering a question that came up frequently during the argument. In McRoberts and Ayer, the failure to fulfill a single duty was isolated, which meant removal was not appropriate. But in Neff’s case, the elected clerk-treasurer failed to properly reconcile the town books for four years, an amount of time McMath said could not be considered isolated.

Each of the justices had questions for both attorneys, focusing largely on the issue of neglect of one duty versus all duties. Heinzmann maintained that unless an elected official fails to complete all of their duties, only the voters could remove them from office. McMath, however, argued that because Neff failed to successfully complete an essential portion of her job for 48 consecutive months, the Constitution and Removal Statute allow for her ouster.

Also at issue in the argument was whether the case was moot, considering Neff’s term will expire in three months. Heinzmann argued against mootness, noting that if the court were to grant transfer and rule in favor of the state, Neff would be required to pay back her salary. He also argued the COA’s decision improperly expanded the Removal Statute and, thus, needed to be overturned, even if Neff was no longer in office.

The full oral argument can be viewed here.

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