Bill Text: IN HB1022 | 2011 | Regular Session | Engrossed
Bill Title: Officeholder qualifications, nepotism, and public contracts.
Sponsorship: Bipartisan Bill
Status: (Enrolled - Dead) 2011-04-29 - Conference committee report 1 : rejected by the House; Roll Call 738: yeas 31, nays 64 [HB1022 Detail]
Download: Indiana-2011-HB1022-Engrossed.html
Citations Affected: IC 3-5; IC 5-8; IC 5-11; IC 25-1; IC 33-42;
IC 36-1; IC 36-4; IC 36-8; IC 36-9.
Effective: July 1, 2011.
(SENATE SPONSORS _ LAWSON C, DELPH, YOUNG R, GARD)
January 5, 2011, read first time and referred to Committee on Local Government.
January 18, 2011, reassigned to Committee on Government and Regulatory Reform.
February 15, 2011, amended, reported _ Do Pass.
February 17, 2011, read second time, ordered engrossed. Engrossed.
February 21, 2011, read third time, call withdrawn.
February 21, 2011, re-read third time, passed. Yeas 79, nays 21.
February 22, 2011, read first time and referred to Committee on Local Government.
March 31, 2011, amended, reported favorably _ Do Pass.
April 5, 2011, read second time, amended, ordered engrossed.
April 5, 2011, returned to second reading.
April 6, 2011, engrossed.
April 7, 2011, re-read second time, amended, ordered engrossed.
Digest Continued
Digest Continued
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 official will be reinstated with back pay if the official is acquitted or charges are dropped.
PRINTING CODE. Amendments: Whenever an existing statute (or a section of the Indiana Constitution) is being amended, the text of the existing provision will appear in this style type, additions will appear in this style type, and deletions will appear in
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A BILL FOR AN ACT to amend the Indiana Code concerning local
government.
Chapter 9. Government Employees Holding Office
Sec. 1. As used in this chapter, "elected office" refers only to the following:
(1) The executive of a unit.
(2) A member of the legislative body or fiscal body of a unit.
Sec. 2. As used in this chapter, "government employee" refers to an employee of a unit. The term does not include an individual who holds an elected office and is not otherwise employed by the unit.
Sec. 3. As used in this chapter, "unit" means a county, city, town, or township.
Sec. 4. Except as provided in section 6 of this chapter, an individual is considered to have resigned as a government employee when the individual assumes an elected office of the unit
that employs the individual.
Sec. 5. This chapter does not prohibit a government employee
from holding an elected office of a unit other than the unit that
employs the government employee.
Sec. 6. (a) A government employee who holds an elected office
of the unit on December 31, 2011, is not subject to this chapter
until the term of office that the employee is serving on December
31, 2011, expires.
(b) A government employee who assumes an elected office of the
unit on January 1, 2012, is not subject to this chapter until the term
of office that the employee is serving on January 1, 2012, expires.
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 a 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 acquitted or charges against the official 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.
(b) This subsection applies to a unit (as defined in IC 36-1-2-23). A report under subsection (a) that is submitted after December 31, 2011, must include a statement by the executive (as defined in IC 36-1-2-5) of the unit, certified under the penalties for perjury, regarding whether the unit has implemented a policy that complies with IC 36-1-20 and IC 36-1-21. The executive (as defined in IC 36-1-2-5) and the unit are subject to the penalties set forth in IC 36-1-20 and IC 36-1-21.
under this state, and prohibited by the Constitution of the State of
Indiana from holding more than one (1) lucrative office, may not serve
as a notary public. If a person accepts a lucrative office or appointment,
the person shall vacate the person's appointment as a notary. For
purposes of Article 2, Section 9 of the Constitution of the State of
Indiana, notary public is not a lucrative office.
(b) Subsection (a) does not apply to a person who holds a lucrative
office or appointment under any civil or school city or town of Indiana.
A person who is a public official, or a deputy or appointee acting for or
serving under a public official, may not make any charge for services
as a notary public in connection with any official business of that
office, or of any other office in the governmental unit in which the
person serves unless the charges are specifically authorized by a statute
other than the statute that establishes generally the fees and charges of
notaries public.
(1) An elected or appointed officer.
(2) An individual described in IC 20-26-4-11.
(b) Subject to IC 3-5-9, an employee of a political subdivision may:
(1) be a candidate for any elected office and serve in that office if elected; or
(2) be appointed to any office and serve in that office if appointed;
without having to resign as an employee of the political subdivision.
Chapter 20. Nepotism
Sec. 1. (a) This chapter applies only to a unit.
(b) This chapter applies to a person who contracts with a unit to fill a vacancy in a position with the unit that was formerly held by an employee.
Sec. 2. For purposes of this chapter, the performance of the duties of:
(1) a precinct election officer (as defined in IC 3-5-2-40.1) that are imposed by IC 3; or
(2) a volunteer firefighter (as defined in IC 36-8-12-2);
is not considered employment by a unit.
Sec. 3. As used in this chapter, "employee" means an individual who is employed by a unit on a full-time, part-time, temporary,
intermittent, or hourly basis. The term includes an appointed
officer of a unit. The term does not include an individual who holds
an elected office and is not otherwise employed by the unit.
Sec. 4. As used in this chapter, "police officer" means the
following:
(1) A regular member of a city or town police department.
(2) A town marshal or town marshal deputy.
(3) A regular member of a county sheriff's department.
Sec. 5. (a) As used in this chapter "relative" means any of the
following:
(1) A spouse.
(2) A parent or stepparent.
(3) A child or stepchild.
(4) A brother, sister, stepbrother, or stepsister.
(5) A niece or nephew.
(6) An aunt or uncle.
(7) A daughter-in-law or son-in-law.
(b) For purposes of this section, an adopted child of an
individual is treated as a natural child of the individual.
(c) For purposes of this section, the terms "brother" and
"sister" include a brother or sister by the half blood.
Sec. 6. Except as provided in sections 8 through 13 of this
chapter, an individual may not be employed by a unit if the
individual is a relative of any of the following:
(1) The executive or a member of the executive body of the
unit.
(2) A member of the legislative body of the unit.
(3) A member of the fiscal body of the unit.
Sec. 7. Except as provided in sections 8 through 13 of this
chapter, individuals who are:
(1) relatives; and
(2) employees or elected officers of the unit (excluding an
elected officer described in section 6 of this chapter);
may not be employed in a position in which the elected officer or
employee is in the line of supervision over the individual.
Sec. 8. An individual who is employed on June 30, 2011, in the
same position with the unit that the person has held for at least
twelve (12) consecutive months is not subject to sections 6 and 7 of
this chapter. However, if the individual meets the requirements of
this section and is a merit police officer or merit firefighter,
sections 6 and 7 of this chapter applies to the individual only if the
individual is promoted after June 30, 2011, to a higher rank other
than a merit rank.
Sec. 9. An individual who:
(1) is employed after June 30, 2011; and
(2) has been employed in the same position with the unit for
at least twelve (12) consecutive months immediately preceding
the date the relative assumes an elected office of the unit;
is not subject to sections 6 and 7 of this chapter. However, if the
individual meets the requirements of this section and is a merit
police officer or merit firefighter, sections 6 and 7 of this chapter
apply to the individual only if the individual is promoted to a
higher rank other than a merit rank.
Sec. 10. An individual who:
(1) is a police officer employed by a police department on
June 30, 2011, and serving a probationary period with the
intent of becoming a merit employee of the police department;
or
(2) is a firefighter employed by a fire department on June 30,
2011, and serving a probationary period with the intent of
becoming a merit employee of the fire department;
is not subject to sections 6 and 7 of this chapter. However, sections
6 and 7 of this chapter apply to an individual described in this
section if the individual is promoted after June 30, 2011, to a
higher rank other than a merit rank.
Sec. 11. (a) This section applies to an individual who meets all of
the following requirements:
(1) The individual:
(A) served as coroner; and
(B) is currently ineligible to serve as coroner under Article
6, Section 2(b) of the Constitution of the State of Indiana.
(2) The individual received certification under IC 36-2-14.
(3) The individual's successor in the office of coroner is a
relative of the individual.
(b) An individual described in subsection (a) may be hired in the
position of deputy coroner and is not subject to sections 6 and 7 of
this chapter.
Sec. 12. If the township trustee's office is located in the township
trustee's personal residence, the township trustee may not hire
more than one (1) employee who is a relative. The employee:
(1) may be hired to work only in the township trustee's office;
and
(2) may not receive total salary, benefits, and compensation
that exceed five thousand dollars ($5,000) per year.
An individual employed under this section is not subject to sections
6 and 7 of this chapter.
Sec. 13. A sheriff may hire the sheriff's spouse as prison matron
for the county under IC 36-8-10-5. An individual employed under
this section is not subject to sections 6 and 7 of this chapter.
Sec. 14. (a) Each elected officer of the unit shall annually certify
in writing, subject to the penalties for perjury, that the officer is in
compliance with this chapter. An officer shall submit the
certification to the executive of the unit not later than December 31
of each year.
(b) The unit must implement a policy that complies with this
chapter. The annual report filed by a unit with the state board of
accounts under IC 5-11-13-1 must include a statement by the
executive of the unit stating whether the unit has implemented a
policy that complies with this chapter. The executive's statement
must be certified under penalties for perjury.
Sec. 15. If the state board of accounts finds that a unit has not
implemented a policy that complies with this chapter, the state
board of accounts shall forward the information to:
(1) the prosecuting attorney of each county where the unit is
located; and
(2) the department of local government finance.
Sec. 16. If a unit has not implemented a policy that complies
with this chapter:
(1) the prosecutor of the county in which the unit is located
may prosecute the executive for perjury under IC 35-44-2-1;
and
(2) the department of local government finance may not
approve:
(A) the unit's budget; or
(B) any additional appropriations for the unit;
for the ensuing calendar year until the state board of accounts
certifies to the department of local government finance that
the unit is in compliance with this chapter.
Chapter 21. Contracting With a Unit
Sec. 1. This chapter applies only to a unit.
Sec. 2. As used in this chapter, "elected official" means:
(1) the executive or a member of the executive body of the unit;
(2) a member of the legislative body of the unit; or
(3) a member of the fiscal body of the unit.
Sec. 3. (a) As used in this chapter "relative" means any of the following:
(1) A spouse.
(2) A parent or stepparent.
(3) A child or stepchild.
(4) A brother, sister, stepbrother, or stepsister.
(5) A niece or nephew.
(6) An aunt or uncle.
(7) A daughter-in-law or son-in-law.
(b) For purposes of this section, an adopted child of an individual is treated as a natural child of the individual.
(c) For purposes of this section, the terms "brother" and "sister" include a brother or sister by the half blood.
Sec. 4. (a) A unit may enter into a contract or renew a contract for the procurement of goods and services or a contract for public works with:
(1) an individual who is a relative of an elected official; or
(2) a business entity that is wholly or partially owned by a relative of an elected official;
only if the requirements of this section are satisfied and the elected official does not violate IC 35-44-1-3.
(b) A unit may enter into a contract or renew a contract with an individual or business entity described in subsection (a) if:
(1) the elected official files with the unit a full disclosure, which must:
(A) be in writing;
(B) describe the contract or purchase to be made by the unit;
(C) describe the relationship that the elected official has to the business entity or individual that contracts or purchases;
(D) be affirmed under penalty of perjury;
(E) be submitted to the legislative body of the unit and be accepted by the legislative body in a public meeting of the unit prior to final action on the contract or purchase; and
(F) be filed, not later than fifteen (15) days after final action on the contract or purchase, with:
(i) the state board of accounts; and
(ii) the clerk of the circuit court in the county where the unit takes final action on the contract or purchase; and
(2) the unit satisfies any other requirements under IC 5-22 or IC 36-1-12.
(c) An elected official shall also comply with the disclosure provisions of IC 35-44-1-3, if applicable.
(d) This section does not affect the initial term of a contract in existence at the time the term of office of the elected official of the unit begins.
Sec. 5. (a) Each elected officer of the unit shall annually certify in writing, subject to the penalties for perjury, that the officer is in compliance with this chapter. An officer shall submit the certification to the executive of the unit not later than December 31 of each year.
(b) The unit must implement a policy that complies with this chapter. The annual report filed by a unit with the state board of accounts under IC 5-11-13-1 must include a statement by the executive of the unit stating whether the unit has implemented a policy that complies with this chapter. The executive's statement must be certified under penalties for perjury.
Sec. 6. If the state board of accounts finds that a unit has not implemented a policy that complies with this chapter, the state board of accounts shall forward the information to:
(1) the prosecuting attorney of each county where the unit is located; and
(2) the department of local government finance.
Sec. 7. If a unit has not implemented a policy that complies with this chapter:
(1) the prosecutor of the county in which the unit is located may prosecute the executive for perjury under IC 35-44-2-1; and
(2) the department of local government finance may not approve:
(A) the unit's budget; or
(B) any additional appropriations for the unit;
for the ensuing calendar year until the state board of accounts certifies to the department of local government finance that the unit is in compliance with this chapter.
(b) Subject to IC 3-5-9, a city employee other than an elected or
appointed public officer may:
(1) be a candidate for any elective office and serve in that office
if elected; or
(2) be appointed to any office and serve in that office if appointed;
without having to resign as a city employee.
(1) be candidates for elective office and serve in that office if elected;
(2) be appointed to any office and serve in that office if appointed; and
(3) as long as they are not in uniform and not on duty, solicit votes and campaign funds and challenge voters for the office for which they are candidates.
(b) The sheriff may temporarily suspend an officer with or without pay for a period not exceeding fifteen (15) days, without a hearing before the board, after preferring charges of misconduct in writing delivered to the officer.
(c) A county police officer may not be dismissed, demoted, or temporarily suspended because of political affiliation nor after the officer's probationary period, except as provided in this section. Subject to IC 3-5-9, an officer may:
(1) be a candidate for elective office and serve in that office if elected;
(2) be appointed to an office and serve in that office if appointed; and
(3) except when in uniform or on duty, solicit votes or campaign funds for the officer or others.
(d) The board has subpoena powers enforceable by the circuit court for hearings under this section. An officer on probation may be dismissed by the sheriff without a right to a hearing.
(e) An appeal under subsection (a) must be taken by filing in court, within thirty (30) days after the date the decision is rendered, a verified complaint stating in a concise manner the general nature of the charges against the officer, the decision of the board, and a demand for the relief asserted by the officer. A bond must also be filed that guarantees the appeal will be prosecuted to a final determination and that the plaintiff will pay all costs only if the court finds that the board's decision should be affirmed. The bond must be approved as bonds for costs are approved in other cases. The county must be named as the sole defendant and the plaintiff shall have a summons issued as in other cases against the county. Neither the board nor the members of it may be made parties defendant to the complaint, but all are bound by service upon the county and the judgment rendered by the court.
(f) All appeals shall be tried by the court. The appeal shall be heard de novo only upon any new issues related to the charges upon which the decision of the board was made. Within ten (10) days after the service of summons, the board shall file in court a complete written transcript of all papers, entries, and other parts of the record relating to the particular case. Inspection of these documents by the person affected, or by the person's agent, must be permitted by the board before the appeal is filed, if requested. The court shall review the record and decision of the board on appeal.
(g) The court shall make specific findings and state the conclusions of law upon which its decision is made. If the court finds that the decision of the board appealed from should in all things be affirmed, its judgment should so state. If the court finds that the decision of the board appealed from should not be affirmed in all things, then the court shall make a general finding, setting out sufficient facts to show the nature of the proceeding and the court's decision on it. The court shall either:
(1) reverse the decision of the board; or
(2) order the decision of the board to be modified.
(h) The final judgment of the court may be appealed by either party. Upon the final disposition of the appeal by the courts, the clerk shall certify and file a copy of the final judgment of the court to the board, which shall conform its decisions and records to the order and judgment of the court. If the decision is reversed or modified, then the board shall pay to the party entitled to it any salary or wages withheld from the party pending the appeal and to which the party is entitled
under the judgment of the court.
(i) Either party shall be allowed a change of venue from the court or
a change of judge in the same manner as such changes are allowed in
civil cases. The rules of trial procedure govern in all matters of
procedure upon the appeal that are not otherwise provided for by this
section.
(j) An appeal takes precedence over other pending litigation and
shall be tried and determined by the court as soon as practical.
(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
(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.
