Introduced Version






SENATE BILL No. 226

_____


DIGEST OF INTRODUCED BILL



Citations Affected: IC 5-8-7; IC 36-9-37-7.

Synopsis: Suspension of local officeholders. Provides that a local elected officeholder may be suspended from office if the officeholder is charged with certain felonies or misdemeanors and a 2/3 majority of the legislative body finds that the offense with which the officeholder is charged is relevant to the officeholder's suitability for office, and it is in the best interests of the governmental unit that the officeholder be suspended from office. Specifies that a member of the legislative body who is charged with an offense is not eligible to vote on the member's suitability for office, and provides that certain relatives of the member are likewise ineligible to vote. Specifies that the local elected officeholder will be reinstated with back pay if the officeholder is acquitted or charges are dropped.

Effective: July 1, 2013.





Glick




    January 7, 2013, read first time and referred to Committee on Local Government.







Introduced

First Regular Session 118th General Assembly (2013)


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SENATE BILL No. 226



    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; (13)IN0226.1.1. -->     SECTION 1. IC 5-8-7 IS ADDED TO THE INDIANA CODE AS A NEW CHAPTER TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2013]:
     Chapter 7. Suspension of Local Elected Officials
    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 a local elected 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 legislative body notified under section 6 of this chapter adopts a resolution by a two-thirds (2/3) vote of all members of the legislative body, and the resolution specifies:
        (1) the eligible offense with which the local elected official is charged is relevant to the official's suitability for office; and
        (2) that 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 official's term of office ends.
    (b) If the local elected official charged with an 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) This subsection applies if
the number of members of a legislative body of a unit who are:
        (1) charged with an eligible offense; or
        (2) ineligible to vote under subsection (b) or (c);
makes it impossible for the legislative body to reach a quorum or adopt a resolution by a two-thirds (2/3) vote of all the members of the legislative body. If this subsection applies, a resolution under subsection (a) 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 must 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 legislative body abused its discretion in determining that the offense is relevant to the official's suitability for office; or
        (4) that the legislative body abused its discretion in determining that 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 local elected official who filed the petition, 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 to grant or deny 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 official would have been entitled to receive if the 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 official.
    Sec. 11. If a local elected official suspended under section 7 of this chapter is convicted of an eligible offense, the 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:
            (A) is acquitted; or
            (B) has the charges against the official 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 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; (13)IN0226.1.2. -->     SECTION 2. IC 36-9-37-7 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2013]: 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.