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Tuesday, November 04, 2008
Ind. Gov't. - 5-year Mitchell City Council member may never have lived in the city
Krystal Slaten of the Bedford Times-Mail has an interesting report - some quotes:
MITCHELL — The issue hotly debated during Monday night’s city council meeting in Mitchell was whether or not Everett Ferrel, a five-year veteran of the council, could rightfully serve in his elected capacity.Interesting. There is more, and also a side-bar.That’s because Ferrel recently learned he does not live in the city limits.
He doesn’t pay city taxes. However, he’s afforded city services and votes in municipal elections.
Ferrel said his property was supposed to be annexed into the city in 1979, and he assumed that happened. Not long ago, however, he attempted to sign property over to his daughter and learned his home was not within city boundaries.
“I’m going to see my attorney tomorrow,” Ferrel said after the council meeting. “It’s going to come to a lawsuit. I am not vacating my seat. We’ll fight this.
Monday night’s council meeting started off with prayer and the Pledge of Allegiance. Before taking the roll call, however, Mitchell Mayor Dan Terrell read a prepared statement about Ferrel’s council qualifications.
“Within the past week, one of the council members has informed me that he does not reside within the city limits of Mitchell,” Terrell read. “Last week, Everett Ferrel told me that for a number of years he believed he lived within the city limits, but that he now knows his residence is not inside the city.
“... Under Indiana Code section 36-4-5-3, as the mayor, I am required to enforce the ordinance of the city and statutes of the state. With the information I have, and upon advice of the city attorney, I believe I must take action on this matter. Accordingly, as Mr. Ferrel has ceased to be resident of the city of Mitchell, by the terms of the Indiana Code, he forfeits his office. I declare his office vacant, and I will notify the county clerk at my next opportunity.”
Ferrel took the opportunity to clarify.
“I haven’t moved, and I am not vacating this seat,” he said. “This was a clerical, man-made error. I have a signed affidavit from Jerry Hancock (Mitchell’s mayor from 1968-2000) saying that property was supposed to be annexed into the city in 1979.”
Terrell said he believes the affidavit means little.
“You must have something in writing from that time period,” Terrell said. “We have found nothing existing saying that was supposed to be annexed or that was the intention of the council at that time. Anyone can swear 30 years later that it was supposed to be that way, but if there’s nothing in writing from that time period, then there’s not much to go on.”
Dale Simmons, co-general counsel for the Indiana Election Division for the Secretary of State’s office in Indianapolis, said that “residency is a requirement that applies throughout the term of someone who holds office as a common councilman.” He cited Indiana Code 36-4-6-2 as the statute that applies in this situation. It reads, “... A member of the legislative body must reside within ... the city as provided in Article 6, Section 6 of the Constitution of the State of Indiana; and ... the district from which the member was elected, if applicable. ... A member forfeits office if the member ceases to be a resident of the district or city.”
“Once a person has assumed office and is currently holding office illegally because of their lack of residency, then there are several possible remedies,” Simmons wrote in an e-mail response to the Times-Mail, “however, none of these specifically indicate that it is the right or duty of the county election board to pursue these remedies. Any remedy at this point must be one pursued in court.”
If the court decides Ferrel must vacate the office he’s held for the past five years, it does not discount the work he’s done while on the council, Simmons noted.
“Even if someone was removed from office by a court action because they failed to meet the residency requirements for holding that office that does not mean all the actions taken by that person while holding office would be invalidated,” Simmons wrote. “The court cases considering this issue indicate that a person who takes office under a claim of right and holds that office is a de facto office holder and their actions are valid until removed.”
Posted by Marcia Oddi on November 4, 2008 01:04 PM
Posted to Indiana Government