Board of Commissioners Once Again Table "Illegal" Plan Commission Accusations

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On Tuesday, April 15 at 9:00 AM, the Board of Commissioners met at the Courthouse once again in part to discuss the issues regarding the claim of a vacant Plan Commission due to members not taking an oath of office as stated in Indiana Code 5-4-1-1.2 (c) (d).

Section (c) specifically states, “An individual appointed or elected to an office of a political subdivision must take the oath required by section 1 of this chapter and deposit the oath as required by section 4 of this chapter not later than thirty (30) days after the beginning of the term of office," followed by: "(d) If an individual appointed or elected to an office of a political subdivision does not comply with subsection (c), the office becomes vacant."

Lucy Brenton began the discussion unapologetically as she stepped up to the microphone.

“25,000 Americans died fighting the Revolutionary War against King George – imagining freedom for us, looking down through the ages hoping that they would secure freedom for their progeny,” Brenton began. “We are that progeny. There are about 29,000 people that live in Washington County. So, if you can imagine at the snap of a finger, having everyone in Washington County disappear. That many people at a minimum died fighting for our freedom so that we would have things as simple as property rights.

“What would they think seeing the current state of affairs here in our local government? Would they be proud, or would they deem their sacrifice a waste because it is just being piddled away. The kind of freedoms that our forefathers sought for aren’t even present in Washington County today,” continued Brenton.

“It is time to stop committing tyranny. It is not too late. Abandon your evil ways. Join us on the right side of history as we fight for property rights and individual rights here in Washington County,” she added.

Brenton went on to reference the previously proposed zoning ordinance and said she believes citizens have the right to do as they please with their properties unless they are trespassing or causing harm.

“The current commissioners – and I’m looking at you, Todd Ewen and Phillip Marshall – have been working to usurp our rights to do with our property as we see fit,” said Brenton. “The county has even come against my small town of Hardinsburg. We have been targeted for the balance in our bank account, confiscated by the Washington County Commissioners, and left us without the money and services that our little town needs. The county has taken property which belongs to our town and has converted it to assets of the county – stealing by government decree from the good people of Hardinsburg.

“Todd Rokita, the attorney general of Indiana, has declared that you never had the right to dissolve Hardinsburg. We were created by an act of legislature, and only an act of Indiana legislature can dissolve us,” concluded Brenton.

Brenton’s remarks were met with no comment from the Board of Commissioners, and the meeting then moved on to business as usual and went through the agenda until it came time to discuss the Plan Commission allegations.

“Plan Commission,” said Commissioner Marshall, announcing the next item on the agenda.

“I’ll just segue into the appointment then,” added Commissioner Ewen. “I spoke to a young man, who is not so young anymore, in his mid 30s from the list of individuals willing to serve on the commission that the Democratic Committee provided since there needs to be a balance in terms of political parties.

“I spoke with him at length over the weekend,” Ewen continued. “He lives in Gibson Township, he is a very level headed and soft spoken, polite young man. His name is Logan Davidson, and I look forward to his service on the Plan Commission. That being said, I’d like to make a motion to approve his appointment.”

At this time, both Commissioners Ewen and Marshall voted to approve this appointment, and Commissioner Cardwell abstained. Cardwell then began to bring up the meat of the matter by asking if the previously proposed resolution regarding the membership of the Plan Commission would be discussed at the meeting. Ewen responded by saying, “let’s put this to bed,” and called attorney Lisa Fleming to the front in order to speak on the matter.

This is what Cardwell's resolution states:

WHEREAS, Article 15, Section 4 of the Constitution of the State of Indiana requires that "Every person elected or appointed to any office under this Constitution shall, before entering on the duties hereof, take an oath or affirmation, to support the Constitution of this State, and of the United States, and also an oath of office;"

WHEREAS, The Indiana Court of Appeals, 164 N.E.3d 131 (2021), (Case No. 20A-CT-1197) has recently affirmed that "plan commission members are officers required to take an oath under IC 5-4-1-1"; and that "officers" include persons who "hold positions of authority and exercise governmental powers to benefit the public;"

WHEREAS, Pursuant to IC 36-7-4-900 Series, the definition of "officer" applies to members of a board of zoning appeals;

WHEREAS, Pursuant to IC 5-4-1-1.2(c) "an individual appointed or elected to an office of a political subdivision must take an oath required by section 1 of this chapter and deposit the oath as required by section 4 of this chapter not later than thirty (30) days after the beginning of the term of office;"

WHEREAS, Pursuant to IC 5-4-1-1.2(d) "if an individual appointed or elected to an office of a political subdivision does not comply with subsection (c), the office becomes vacant;" and

WHEREAS, No member of the Washington County Plan Commission or the Washington County Board of Zoning Appeals has an oath on file in the office of the Washington County Clerk of the Circuit Court;

NOW THEREFORE BE IT RESOLVED, That the County Commissioners of Washington County, Indiana declare that all the seats on the Washington County Plan Commission and Washington County Board of Zoning Appeals are vacant, and need to be reappointed/refilled paying strict attention to the qualification of future members as to knowledge, experience, awareness of area problems and interest in serving; as to residency requirements; as to political party affiliation; as to oath of office; and as otherwise generally required by the statutes of the State of Indiana.

“I’m going to read a statement I’ve prepared,” began Fleming. “I did find that per the Indiana Code, that there is a requirement that members take an oath to support the Constitution of the United States of America and also the Constitution of the State of Indiana before they assume office. There is also a requirement that the oath includes a pledge to faithfully discharge the duties of the office. The oath is to be taken not later than 30 days after the beginning of the term of office, and then the signed and notarized oath needs to be filed with the Clerk of Courts, which currently is Stephanie Rockey.

“I was provided with oaths for some of our Plan Commission members including Todd Ewen and our newest commission member Andrew Davisson, and I just recently requested the oath that Emily Rodman, our elected surveyor, will have over at the clerk’s office,” Fleming said. “In looking through this, I determined that we needed to adopt some best practices because I was unable to find oaths on other Plan Commission members. So, I discussed this with Stephanie Rockey, and we initially thought that Stephanie would administer the oaths to the other folks. However, she then conferred with an advisor from the state and decided that I would be the proper person to administer them to our Plan Commission members.”

Fleming continued by stating that she has already administered oaths to five members, and she said that she has plans to administer to two more Plan Commission members as well as all members of the BZA (Board of Zoning Appeals).

“But the question remains, ‘should the Plan Commission be dissolved as a result of the failure to timely administer the oaths?’ After research, I’ve determined the answer is no, although the members and officers are required to take an oath and to do so timely. It’s just a technical defect that wasn't done, not a fatal error. I believe there is no reason to dissolve this Plan Commission; I believe it is legal,” said Fleming.

Fleming concluded by saying she is looking forward to the commission resuming normal operations in May.

Cardwell then interjected by saying, “I think there’s been some confusion. I was not asking for the Plan Commission to be disluded [sic], it was to declare the membership vacant because they never took their oath within 30 days. That is clearly what it states in the law. I don’t know if you’ve ever seen the resolution or not.”

“The resolution of what?” remarked Fleming.

“The resolution that I made three meetings ago,” replied Cardwell, to which Fleming responded by saying she had not read what he presented.

“I was not asking for it to be dissolved, that’s not what this is about. It was to vacate it because no oaths have been taken, and by statute, you were supposed to take an oath,” Cardwell said. “At the present time, we only have one person – and he got reappointed by the council – to legally be on it. It was not to dislude [sic].”

“Well, I believe it would probably be good for you to speak with the county attorney about a fairly recent appeals court case where the court has gone down this road and looked at all those issues you’re raising about timeliness, and I suggest you have a discussion with her,” said Fleming.

Following Fleming’s response, Lucy Brenton remarked from the gallery that everything Fleming said was, “simply her opinion,” and that it was, “complete and utter poppycock.”

“I want everybody to know that the 30 days is a prerequisite. It’s in the statute, so her opinion doesn’t matter. It sounds like it’s time for a lawsuit,” Brenton said. In regard to the potential reappointment of the current members of the Plan Commission, Brenton concluded by saying, “you can’t unscrew a pregnant woman, and it seems that Ms. Fleming has given them oaths of office-.” before she was cut off by Cardwell asking Stephanie Rockey to come forward.

“I am speaking as a taxpayer, I am speaking as an elected official, and I am speaking as your election administrator,” began Rockey. “I believe wholeheartedly that the people of this county have lost confidence in a lot of positions, and it creates chaos, it creates assumptions, and I have wholeheartedly put a lot of personal time into trying to restore confidence back into the people who have elected us to our positions. I have spoken with the Indiana Election Division because my role as clerk of courts does not authorize determination of the law. People think that I am an attorney; I am not…

“However, it is my opinion and recommendation that you should vacate those positions and reappoint whoever you wish to reappoint and begin to do things the right way moving forward. We’ve got to come together as elected officials and restore the faith of our community, those who elected us to our positions,” Rockey concluded.

From there, Commissioner Cardwell made a motion to approve his resolution to declare the commission vacant, which was met with a long silence before Commissioner Marshall began asking questions.

“So, the same people, with this (the resolution), can be put right back in and take an oath, am I right?” asked Marshall.

“I’ve not read it,” replied Fleming.

“That’s not what this says. It says much more than that,” remarked Ewen.

“I suggest you take a pause, read this appeals court decision that is on point with the current situation, and then confer with your council before you make a decision,” said Fleming. “A good study of the language outside of this meeting where you can ask questions would be appropriate.”

“That’s part of the problem,” interjected Cardwell. “A lot of things are done outside of the meetings, and it’s losing public trust. That’s why we have these discussions in the open meetings.”

With that, Commissioners Marshall and Ewen decided once again to table the discussion.

After the meeting, I spoke with all three commissioners in regard to the Plan Commission.

“I think the commission should be vacated and redone in order to get the community on everybody’s side. I don’t think that’s happening with the way this is coming about,” said Cardwell. “They say they haven’t read the resolution yet, but I handed them out three meetings ago on March 18. They have had plenty of time to look at it.”

“Two weeks ago, everybody was ready to get rid of planning and zoning,” said Marshall. “Nobody wants to be told what to do, but without planning and zoning, we would be the wild west. That’s not a good thing to do. We have to have planning and zoning to some extent.

“We’ve already got good members,” Marshall continued. “We’ve got people who have donated their time. But to do it right, the way I understand it is a technicality, that they need to be exempted and then rehired and placed back in there if that makes it legal. You’ve got good people willing to work, but it seems to be a technicality that we’re not getting through. Take them out, put them back in, and do one massive oath. To me, that’s all we have to do.”

“It’s [the Planning Commission resolution] not necessary,” said Commissioner Ewen. “If you call around just randomly to any county in the State of Indiana and ask if their Plan Commissions are being sworn in, I bet you over half of them will say, ‘no, I didn’t know that was a law.’”

Ewen continued by stating that all members are legal and have been sworn in.

“There is no plan. They have been sworn in. They’re legal members and there is no reappointment necessary. It’s really a struggle getting board members; you can’t get anybody to do anything. Not only that, but it’s difficult to find qualified people. You can go out there and pick a warm body, but do they know anything about the ways of the world? Do they have an area of expertise?”

Building off of Commissioner Marshall’s comments, Ewen began to describe some of the current members on the commission.

“We’ve got a realtor, Lori Gilstrap. We’ve got a business owner, Kevin Baird and his wife, Linda of Cornucopia Farm; a very good family. We have another attorney who lives out on Voyles Road by the name of Marsha Dailey. I’m not going to toot my own bugle, but I have a varied background in construction, farming, and business myself. So, we have a lot of good board members. Why in the world would you kick those people off the board and start over when you already have a good foundation?”

April 15th’s Commissioners Meeting was interesting to say the least. There were several moments of tension, which is not surprising in a situation such as this. With disagreements between Washington County citizens and the Board of Commissioners, and disagreements between the commissioners themselves, it is hard to say what will come of the next meeting on May 6. With community members calling for transparency and procedural integrity, it is clear that these conversations may be far from over.

1 Comment

toniwilliams672

Apr 16

Appreciate the details contained in this article. I would LOVE to go to a meeting or even assist with the Board, it’s difficult for them to find people willing and able because the scheduled meeting times don’t work well with people’s schedules. But nevertheless, hope they get their priorities straight and DO WHATS RIGHT! The rules are laid out, just follow them!!