Olivia Covington for www.theindianalawyer.com
The Indiana Supreme Court has agreed to decide whether Yorktown can forcibly remove its clerk-treasurer from office, a decision the clerk-treasurer’s attorney told the justices could have implications beyond his client.
The court heard oral argument on petition to transfer in State of Indiana v. Beth A. Neff, 18A02-1708-IF-01933, on Thursday morning. Delaware County Prosecutor Jeffrey Arnold opened the case in July 2017, when he filed for Neff’s removal based on her failure to correctly reconcile the town books for 48 consecutive months.
The trial court declined the motion to remove Neff under Indiana’s Removal Statute, Indiana Code section 5-8-1-35, finding her failure to reconcile the books was a result of misfeasance, not nonfeasance. But the Indiana Court of Appeals disagreed, holding 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.”
The state urged the justices to deny transfer and uphold the COA’s ruling, arguing that under 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), Neff could be removed for failing to perform an essential duty of her office. But Jeffrey Heinzmann, Neff’s counsel, argued McRoberts and Ayer require elected officials to shirk all of their duties, not just one duty, before removal is warranted.
The state urged the court to adopt its proffered test to determine when removal from elected office is appropriate. The proposed test would include three questions, the third of which would be most dispositive:
• Did the official fail to perform a duty?
• Was the neglected duty essential or critical?
• Was the neglect isolated?
In Neff’s case, the state maintained her four-year failure to properly reconcile the books could not be considered isolated neglect.
The justices must now decide which interpretation of the Removal Statute to adopt. Heinzmann cautioned that allowing the COA’s decision to stand could lead to a proliferation of removal cases due to what he perceives to be an expansion of the statute. That proliferation would take power away from the voters, he said.