IL for www.theindianalawyer.com

Katie Stancombe for www.theindianalawyer.com

Efforts to forcibly remove a Yorktown clerk-treasurer from her elected office faced a setback Wednesday when the Indiana Supreme Court affirmed a trial court’s decision finding the officer’s failure to keep track of town finances did not result in a general failure to perform her official duties.

The high court’s ruling in State of Indiana v. Beth A. Neff,18S-IF-478, came after Delaware County Prosecutor Jeffrey Arnold moved for Beth Neff’s removal from her elected position as Yorktown clerk-treasurer. The removal effort came after two State Board of Accounts audits revealed Neff had failed to properly reconcile the town books for 48 consecutive months between 2012 and 2015.

A trial court declined the prosecutor’s 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. However, the Indiana Court of Appeals disagreed, holding that her failure 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.”

Indiana Supreme Court justices agreed to hear the case on petition to transfer in September 2018 to address the state’s complaint, which argued Neff’s pervasive failures involving critical duties was sufficient for her removal. But Jeffrey Heinzmann, Neff’s counsel, argued that 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), required elected officials to fail all of their duties, not just one, before removal is warranted.

Writing for the Supreme Court, Justice Christopher Goff addressed all three guidelines in the removal statute analysis:

• Whether Neff failed to perform multiple required duties;

• Whether Neff’s failures resulted in nonfeasance, rather than malfeasance or misfeasance, and;

• Whether that nonfeasance significantly impacted the day-to-day operations of her clerk-treasurer office.

Goff noted that Neff’s case was a particularly close call that fell within the wide spectrum of Subsection (a)(2) of the Removal Statute interpreted through caselaw. Despite her failed performance, the high court found that no allegations were raised against Neff concerning the 11 statutory duties required of a town clerk-treasurer. Instead, it found the state alleged three additional duties imposed on town clerk-treasurers under a catch-all provision, which included that Neff complete monthly account reconciliations, follow State Board of Accounts directions, and adopt and use required SBOA systems of accounting and financial reporting.

Although the high court found Neff committed nonfeasance of at least one specific duty, it found the evidence less clear to prove her nonfeasance was committed in multiple duties.

“If Neff wholly failed to act on all the SBOA’s directions and failed to adopt and use any of the systems required by the SBOA Manual, she would have committed nonfeasance of these duties,” Goff wrote. “But if Neff tried to follow the SBOA’s directions and adopt and use the required systems but just could not get it all done properly, she would have committed misfeasance.”

Thus, the high court found that Neff’s failure to carry out three of her duties did not have a significant impact on the day-to-day operation of her office because they were not essential to the regular functioning of her role as clerk-treasurer.

“In other words, the fact that Neff failed to reconcile accounts and follow the SBOA’s directions had no impact on the ability of a Yorktown resident to pay his or her water bill,” Goff continued. “Because Neff’s nonfeasance did not have a significant impact on the day-to-day operation of her office, the third guideline in the removal analysis is not met, and she did not generally fail to perform her official duties. Thus, she was not subject to removal.”

Additionally, the high court noted that the state failed to allege Neff failed to perform any of the duties traditionally associated with a clerk or a treasurer. Without proof otherwise, it concluded there was not a general failure on Neff’s part to perform her official duties and further denied the state’s request for her removal.

“The Court’s reaffirmation of its general failure to perform official duties test and the limitation of removal to extreme situations maintained a bright line that respects the finality of elections and reminds Hoosiers that their votes have consequences,” Heinzmann told Indiana Lawyer in response to the ruling.

“By shedding light on what it takes to bring a case under the Removal Statute, the Court may have made it slightly easier to state a claim for removal, but in affirming the general failure to perform official duties standard it also signaled that carrying the burden of proof required to remove a public official will remain a rarity reserved for extreme and extraordinary circumstances.”