January 5, 2011, read first time and referred to Committee on Rules and Legislative
Procedure.
February 10, 2011, pursuant to Senate Rule 68(b), reassigned to Committee on Judiciary.
Amended, reported favorably _ Do Pass.
February 11, 2011
First Regular Session 117th General Assembly (2011)
PRINTING CODE. Amendments: Whenever an existing statute (or a section of the Indiana
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additions will appear in
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Additions: Whenever a new statutory provision is being enacted (or a new constitutional
provision adopted), the text of the new provision will appear in
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a new provision to the Indiana Code or the Indiana Constitution.
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between statutes enacted by the 2010 Regular Session of the General Assembly.
SENATE BILL No. 63
A BILL FOR AN ACT to amend the Indiana Code concerning local
government.
Be it enacted by the General Assembly of the State of Indiana:
SOURCE: IC 5-8-7; (11)SB0063.1.1. -->
SECTION 1. IC 5-8-7 IS ADDED TO THE INDIANA CODE AS
A
NEW CHAPTER TO READ AS FOLLOWS [EFFECTIVE JULY
1, 2011]:
Chapter 7. Suspension of Local Officeholders
Sec. 1. As used in this chapter, "eligible offense" means:
(1) a felony under IC 35;
(2) a felony under IC 9-30-5;
(3) a felony concerning an election under IC 3; or
(4) a misdemeanor involving a breach of the peace that is
committed while the local official is performing the official's
official duties.
Sec. 2. As used in this chapter, "legislative body" has the
meaning set forth in IC 36-1-2-9.
Sec. 3. As used in this chapter, "local elected official" means an
elected official of a unit who is not a judge or a prosecuting
attorney subject to discipline by the supreme court.
Sec. 4. As used in this chapter, "unit" has the meaning set forth
in IC 36-1-2-23.
Sec. 5. A local elected official may be suspended from office as
described in this chapter if the official is charged with an eligible
offense.
Sec. 6. If:
(1) a prosecuting attorney charges a local elected official with
an eligible offense; and
(2) a court finds probable cause to believe that the offense has
been committed;
the prosecuting attorney shall notify the legislative body of the
appropriate unit.
Sec. 7. (a) If the appropriate legislative body adopts a resolution
by a two-thirds (2/3) vote of all of the members of the legislative
body finding that:
(1) the eligible offense with which the local elected official is
charged is relevant to the official's suitability for office; and
(2) it is in the best interests of the unit that the local elected
official be suspended from office;
the local elected official shall be suspended from office until the
official is convicted or acquitted, charges against the official are
dropped, or the end of the official's term of office.
(b) If the local elected official charged with the eligible offense
is a member of the legislative body of a unit, the local elected
official is ineligible to vote on the resolution described in subsection
(a).
(c) If a member of the legislative body of a unit is related to the
local elected official as:
(1) father;
(2) mother;
(3) son;
(4) daughter;
(5) husband;
(6) wife;
(7) brother;
(8) sister;
(9) uncle;
(10) aunt;
(11) nephew;
(12) niece;
(13) father in law;
(14) mother in law;
(15) son in law;
(16) daughter in law;
(17) brother in law; or
(18) sister in law;
the member is ineligible to vote on the resolution described in
subsection (a).
(d) If the number of:
(1) local elected officials who are members of the legislative
body of a unit charged with an eligible offense; or
(2) members of the legislative body of the unit who are
ineligible to vote under subsection (b);
results in the legislative body of the unit being unable to reach a
quorum or adopt a resolution by a two-thirds (2/3) vote of all of the
members of the unit, the resolution may be adopted by a majority
of the voting members.
Sec. 8. (a) A local elected official who has been suspended under
section 7 of this chapter may seek judicial review of the suspension
by filing a petition for review with a circuit court located:
(1) in the county where the local elected official served; or
(2) in a county adjacent to the county where the local elected
official served;
not later than thirty (30) days after the date on which the local
elected official was suspended. The official shall serve a copy of the
petition on the prosecuting attorney and on the legislative body.
(b) A petition for review filed under this section must be verified
and set forth specific facts to demonstrate:
(1) that the prosecuting attorney did not charge the local
elected official with an eligible offense;
(2) that a court did not find probable cause to believe that the
offense was committed;
(3) that the appropriate legislative body abused its discretion
in determining that the offense is relevant to the official's
suitability for office; or
(4) that the appropriate legislative body abused its discretion
in determining it is in the best interests of the unit that the
local elected official be suspended from office.
(c) The court shall set a hearing on the suspension of the local
elected official not later than thirty (30) days after the petition for
judicial review is filed. Judicial review of the suspension of a local
elected official shall be determined on an expedited basis.
(d) The petitioner, the prosecuting attorney, and one (1) or more
members of the legislative body have the right to appear and
present relevant evidence at the hearing, in person or by counsel.
(e) The court conducting judicial review of the suspension of a
local elected official may stay the suspension pending the resolution
of the judicial review.
(f) If the reviewing court finds that the petitioner has established
one (1) of the elements described in subsection (b)(1) through
(b)(4), the court shall order the petitioner immediately reinstated
with back pay, if applicable.
(g) The court's determination granting or denying relief is a
final judgment.
Sec. 9. (a) A local elected official who is suspended from office
under this chapter shall not act in the official's official capacity and
is not entitled to receive any salary or remuneration as a local
elected official during the suspension period.
(b) A local elected official who is suspended from office under
this chapter is entitled to continue to receive any health benefits the
local elected official would have been entitled to receive if the local
elected official had not been suspended.
Sec. 10. (a) This section does not apply if a legislative body
suspends a local elected official who is a member of the legislative
body.
(b) If a legislative body suspends a local elected official under
section 7 of this chapter, the legislative body shall ensure that the
duties of the suspended local elected official are carried out and
may appoint an acting replacement for the suspended local elected
official.
Sec. 11. If a local elected official suspended under section 7 of
this chapter is convicted of an eligible offense, the local elected
official shall be removed from office in accordance with
IC 5-8-1-38.
Sec. 12. (a) If:
(1) a local elected official suspended under section 7 of this
chapter is:
(A) acquitted; or
(B) charges are dropped;
(2) a local elected official was charged with a felony but is
convicted only of a misdemeanor; or
(3) a local elected official was charged with a misdemeanor
involving a breach of the peace that is committed while the
local official is performing the official's official duties but is
convicted only of a misdemeanor that does not involve a
breach of the peace;
the official is reinstated in office by operation of law if the term of
the official has not expired.
(b) If a local elected official suspended under section 7 of this
chapter is acquitted or charges are dropped, the local elected
official is entitled to back pay for the suspension period.
(c) If a local elected official suspended under section 7 of this
chapter is convicted only of a misdemeanor as described in
subsection (a)(2) or (a)(3), the legislative body may award full or
partial back pay to the official, if the legislative body adopts a
resolution finding that:
(1) the misdemeanor of which the local elected official is
convicted does not reflect upon the official's suitability for
office; and
(2) fairness and the best interests of the unit require that the
local elected official be awarded back pay.
A local elected official who is convicted of a misdemeanor is not
entitled to vote to award back pay under this subsection.
SOURCE: IC 36-9-37-7; (11)SB0063.1.2. -->
SECTION 2. IC 36-9-37-7 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2011]: Sec. 7. (a) A municipal
fiscal officer acting under this chapter shall, in the manner prescribed
by IC 5-4-1, obtain, execute, and file a bond conditioned upon the
following:
(1) The faithful compliance of the municipal fiscal officer with
this chapter.
(2) The faithful accounting for all money coming into the
municipal fiscal officer's possession under the Barrett Law.
(b) A municipal fiscal officer who does any of the following is
personally liable to a person suffering loss due to that action and may
be
removed from office by proper action filed under IC 5-8-1-35:
subject to other action as prescribed by law:
(1) Fails to collect the interest or penalties provided for by this
chapter on delinquent assessments and installments of
assessments.
(2) Fails to enforce the collection of the assessments by the sale
of the property. However, this subdivision does not apply to a
municipal fiscal officer of a municipality that has adopted an
ordinance under section 24(a) of this chapter.
(3) Otherwise fails to comply with this chapter.
(c) The surety on the municipal fiscal officer's bond is also liable to
the extent of the bond.