Appeals court orders Yorktown clerk-treasurer’s removal

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Olivia Covington for www.theindianalawyer.com

The Indiana Court of Appeals has ordered the removal of the Yorktown clerk-treasurer from office after determining that her failure to properly reconcile the town books for four consecutive years warranted her removal. In response, the elected office holder has pledged to take her case to the Indiana Supreme Court.

Beth Neff was elected Yorktown clerk-treasurer in 2007 and has held the position since. The State Board of Accounts performed an audit of the town’s 2012 financial records in 2013 and found that Neff failed to reconcile the town accounts for that entire year, while the town’s wastewater utility account was overdrawn by nearly $141,000.

Field examiner Mike Wade and his supervisor, Bill Vinson, met with Neff to go over the issues and help her rectify her errors, but a subsequent audit of the town’s records from 2013 through 2015 found the same and new errors affecting more than 20 town accounts. Vinson later testified that Neff’s errors were so numerous that the SBA could not identify them all.

The Town Council subsequently approved a proposal for Neff to hire accounting firm Hartman Williams to assist her, and the firm ultimately identified net errors totaling $346,340.82. The state then filed a complaint to remove Neff from office in July 2017, with Delaware County Prosecutor Jeff Arnold alleging in the complaint that Neff’s conduct led to a “general and continuing series of misfeasance and nonfeasance and a disregard for statutory requirements that amount to negligent neglect.”

The Delaware Circuit Court denied Neff’s motion to dismiss, but also declined to remove her from office. The court found that though Neff failed to reconcile the books for 48 consecutive months, her removal was not warranted because “Neff is making mistakes and not performing up to the standards expected by the State Board of Accounts for Town Clerks. This is misfeasance and not nonfeasance.”

The Indiana Court of Appeals reversed that ruling Friday, with Judge Paul Mathias writing Neff’s removal was warranted under the state’s Removal Statute, Indiana Code section 5-8-1-35.

The panel distinguished the instant case from Neff’s interpretation of 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), which both parties relied on to support their positions. Neff had argued those cases stood for the proposition that an official must shirk each of their duties to be found to have committed nonfeasance warranting removal, an argument the court disagreed with.

“While Neff’s actions may not rise to the level of the hypothetical provided by the McRoberts court ‘where a sheriff closes his office and remains away and refuses and neglects to discharge the duties thereof,’ she neglected to perform a critical, official, and mandatory duty of her office for an extended period of time,” Mathias wrote. “Therefore, we hold 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 cross-appealed, arguing the trial court erred in denying her motion to dismiss, but the appellate panel determined the state “sufficiently alleged specific facts necessary to fall under the trial court’s jurisdiction… .” The case of State of Indiana v. Beth A. Neff, 18A02-1708-IF-1933, was remanded for further proceedings.

In a statement released Friday, Fishers attorney Jeffrey M. Heinzmann of the Heinzmann Law Office, who is representing Neff, called the court’s decision “an abandonment of Indiana precedent.”

“Two days after Hoosier voters went tot he polls in the 2018 primary election, it is fresh in our minds that it is the voters who choose our elected officials and can choose to remove them,” Heinzmann said. “Today’s opinion is an abandonment of Indiana precedent that transforms the standard for impeachment from a bright line of nonfeasance to a sliding scale where courts can overturn the will of the voters based upon the mistakes of office holders.”

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