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Home My WebLink About2010-R-19BEFORE THE CITY OF JEFFERSONVILLE COMMON COUNCIL RESOLUTION 2010-R-~ A RESOLUTION ADDRESSING SITUATION OF THE CITY OF JEFFERSONVILLE CLERK-TREASURER WHEREAS, the City of Jeffersonville (the "City"), a City formed and operating under the laws of the State of Indiana, is empowered to pass resolutions, by and through its Common Council, for the purpose of governing the City (See Ind. Code ~ 36-4-6-18); WHEREAS, the City of Jeffersonville Common Council is the legislative body of the City and is afforded all rights, privileges, and powers designated by the Indiana General Assembly and incorporated in the Indiana Code; WHEREAS, pursuant to the Indiana Code, the City of Jeffersonville has an elected Clerk- Treasurer, having statutorily defined duties and responsibilities, including but not limited to, the responsibility to keep records of common council proceedings, including the recording of all notes, and he preservation of all papers related to its business, to present ordinances, orders, or resolutions to the mayor for approval, and to prepare and keep an ordinance book (See Ind. Code ~ 35-4-10-4); WHEREAS, the City of Jeffersonville Clerk-Treasurer is an officer of the City, that is, a person holding office under the government of a municipality, state, or nation; one occupying a public office created by law; one that must take an official oath of office and give a bond; and one that performs public functions for public benefit, in doing so being vested to exercise some sovereign powers, and can be called to account as a public offender for misfeasance or nonfeasance while in office; WHEREAS, the purpose of this Resolution is to outline what duty, obligation, or responsibility, if any, does the Common Council have ensuring that the Clerk-Treasurer is performing the proscribed statutory duties of the office of Clerk-Treasurer; NOW, THEREFORE, BE IT RESOLVED by the Common Council of the City of Jeffersonville, that it specifically and affirmatively finds as follows: 1. The City of Jeffersonville Common Council, as the City's legislative body, is given specific powers delineated by the Indiana General Assembly and proscribed by and through the Indiana Code. Each member of the Common Council is an elected public Page 1 of 5 officer, however, no individual member hold any significant statutory power, the Council exercises its statutory powers collectively. 2. That the City of Jeffersonville Clerk-Treasurer is an officer of the City, that being, one holding office under the government of a municipal, state, or nation; one occupying a public office created by law; one that must take an official oath of office and give a bond; and one that performs public functions for public benefit, in doing so being vested with exercise of some sovereign powers, and can be called to account as a public offender for misfeasance or nonfeasance while in office. 3. That pursuant to the Indiana Code, the City of Jeffersonville has an elected Clerk- Treasurer, having statutorily defined duties and responsibilities, including but not limited to: a. Preserving the legislative body's records in his office; b. Keep an accurate record of the legislative body's proceedings; c. Record the ayes and nays on each vote on an ordinance or resolution; d. Record the ayes and nays on other votes when requested to do so by two (2) or more members; e. Present ordinances, or resolutions to the city executive under Ind. Code ~ 36-4-6- 15; f. Record ordinances under Ind. Code ~ 36-4-6-17; g. Maintain all records required by law; h. Keep the City seal; i. As soon as a successor is elected and qualified, deliver to the successor all the records and property of the clerk's office; j. Perform other duties prescribed by law; k. Administer oaths when necessary in the discharge of the clerk's duties, without charging a fee; 1. Take depositions, without charging a fee; m. Take acknowledgement of instruments that are required by statute to be acknowledged, without charging a fee; and n. All duties outlined in Ind. Code ~ 36-4-10-4.5 pertaining to the fiscal officer duties of the fiscal officer in a third class city. (See I.C. § 36-4-6-9; I.C. § 36-4-10-4; and I.C. § 36-4-10-4.5) 4. The Common Council, as the City's legislative body, may not elect or appoint a person to any office or employment, except as provided by statute. (See Ind. Code ~ 36-4-4-4) Page 2 of 5 5. Other than authorizing the number of deputies and employees the city clerk may appoint, the Common Council has no authority over these deputies and employees, they serve at the pleasure of the City's Clerk-Treasurer. (See Ind. Code ~ 36-4-11-4) 6. That the City of Jeffersonville Common Council, as the City's fiscal body, fixes the annual salaries of all elected official of the City of Jeffersonville, which may not be changed in the year or which they were fixed, or reduced below the previous year's level. (See Ind. Code ~ 36-4-7-2) 7. Therefore, the City of Jeffersonville Common Council is not empowered with the authority of changing the annual salary of the Clerk-Treasurer, nor does the Council have the authority to reduce the salary of the Clerk-Treasurer below the previous year's level. 8. The City of Jeffersonville Common Council does not have the authority to impose or prosecute any criminal charges on any person, including a public official or public servant, this power is reserved to the State of Indiana under Indiana law. (See Ind. Code ~ 35-34-1-1) 9. The State of Indiana does not have a procedure for the recall of elected officials, but it does have a statutory method for initiating impeachment proceedings for any misdemeanor in office against local officials. Impeachment proceedings are conducted by the Indiana House of Representatives prosecuting, with the trial conducted before the Indiana Senate (Ind. Code ~ 5-8-1-1 through § 5-8-1-18). There is also a procedure for which an accusation against a municipal official may be submitted to the grand jury of the county in which the official resides, for consideration by the circuit court. Atrial on the matter is required to be a jury trial (See Ind. Code § 5-8-1-21 through § 5-8-1-31). Finally, there is also a procedure in which an individual may submit a verified written accusation to the circuit court of the county, alleging that an officer within the jurisdiction of the court has been guilty of charging and collecting illegal fees for services rendered or to be rendered in his office or refusing or neglecting to perform the official duties pertaining to his or her office (See Ind. Code ~ 5-8-1-35). 10. The Supreme Court of Indiana has stated, "To remove a person from office to which he has been elected and qualified is a matter of serious importance. Removal from office should be exercised with caution, and for reason based upon willful or malicious failure or neglect to perform the official duties pertaining to that office." Bateman v. State, 14 N.E.2d 1007, 214 Ind. 138 (Ind. 1938) 11. Further, the Supreme Court of Indiana has also stated, "There must be a general failure to perform official duties alleged, before a right of action against the officer under this statute [Ind. Code ~ 5-8-1-35] will lie." State ex rel. Ayer v. Ewing, 106 N.E.2d 441, 231 Ind. 1 (Ind. 1952). In the case of Indiana v. McRoberts, 192 N.E. 428, 207 Ind. 293 (Ind. Page3of5 i •~ ' ~ 1934), the Indiana Supreme Court was specific about this finding, giving an example of when an action will arise under this provision of the Code: "...for instance, where a sheriff closes his office and remains away and refuses and neglects to discharge the duties thereof, and has no one to perform his official duties." McRoberts at 430 (emphasis added). 12. To this date, the Council recognizes that all official duties and responsibilities of the Jeffersonville Clerk-Treasurer, as outlined in paragraph 3 of this Resolution, have been performed and continue to be performed as proscribed under Indiana law. 13. Because the Common Council finds that the statutory duties and responsibilities of the Office of City of Jeffersonville Clerk-Treasurer are currently being performed, based upon the legal authority cited herein, it is the opinion of the Jeffersonville Common Council there has not been a general failure to perform the official duties of the office of clerk-treasurer. 14. If ever the official statutory duties and responsibilities of the City of Jeffersonville Clerk- Treasurer fail to be performed as outlined by the Indiana Code, and a general failure to perform the official duties of the office exists, the Jeffersonville Common Council may readdress this issue. This RESOLUTION shall be in full force and effect from and after its passage by the City of Jeffersonville Common Council and approval by the Mayor. Voted for: Voted Against: Page 4 of 5 ., w~ PASSED AND ADOPTED by the C mon Council of the City of Jeffersonville, Clark County, Indiana, upon this ~ day of ~ 2010. omas Galligan, Ma or Presiding Officer E PEGGY WIL ER, Clerk-Treasurer City of Jeffersonville PRESENTED by m to the Malyor of the City of Jeffersonville, Clark County, Indiana, upon this d1 day of ~i~ T' 2010. PEGGY ER, Clerk-Treasurer City of Jeffersonville SIGNED AND APPROVED by me upon tl)3's ~ daX of / Ail~i9~,~,07` , 2010. 'THOMAS GALLIGAN, City of Jeffersonville EST: PEGGY DER, Clerk-Treasurer City of Jeffersonville Page 5 of 5