Commissioner Cardwell Declares Plan Commission / BZA "Vacant", Introduces Resolution to Re-Appoint Members

Commissioners Tony Cardwell, Phillip Marshall, and Todd Ewen.

The Washington County Board of Commissioners meeting took an unexpected turn this morning, when, during the final agenda item (#7. Board Comments and Concerns), District 3 Commissioner Tony Cardwell called for an amendment to the agenda.

“I’ll second it, out of curiosity,” replied District 2 Commissioner Todd Ewen.

Commissioner Cardwell then invited former Plan Commission member Adam Dufour to assist him in introducing a new agenda item: a resolution to declare the current Plan Commission vacant and re-appoint the members. 

Watch the full video below, or keep reading for a summary of the events:

"After investigating into all the planning and zoning stuff, we figured out that the board is kind of illegal,” Mr. Cardwell began. “Any board that makes a decision on behalf of the public has got to take an oath of office. And after digging around, we found out that the oath of office has never been taken for the Plan Commission.”

“Basically,” Mr. Dufour explained, “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 thereof, take an oath or affirmation, to support the Constitution of this State, and of the United States, and also an oath of office.” 

Mr. Dufour continued, “This is an oath pertaining to the office itself. So, for example, the person appointed by the county council to the plan commission takes an oath for the county council as an elected official, but they have to take another oath pursuant to the office of the plan commission, and the same with the board of commissioners. Basically, the commissioner's oath of office doesn’t work on the plan commission, and the councilman’s oath of office doesn’t work on the plan commission. They also have to take another oath pursuant to the plan commission.”

Mr. Dufour then brought up the 2021 Indiana Court of Appeals case, 164 N.E.3d 131, (Case No. 20A-CT-1197) which 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”. He then moved on to Indiana Code 5-4-1-1.2 (d), which says, “If an individual appointed or elected to an office of a political subdivision does not comply with subsection (c), the office becomes vacant.” (Subsection (c) says, “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.")

“Whether this resolution passes or not doesn’t make the plan commission legitimate,” Dufour continued, “The entire membership is actually just vacant. The board is legal, because it was adopted by legal resolution in 2010… but because this has never been complied with since 2021 when this Appeals Court ruling was made, the board is actually just a vacant board right now. There’s actually only one legitimate member, and that would be Andrew Davidson, who was reappointed at the last council meeting, if he has gone within 30 days and filed his oath of office with the clerk of the circuit court, which is where it has to be filed.”

“The long and the short of it,” Dufour concluded, “is that the board is vacant because it never complied with the Constitution of the State of Indiana and Title 5.”

After a moment of silence, Commissioner Todd Ewen spoke up. “So you’re saying that I have to have to get an oath of office for every one of the nine boards I sit on?”

“Not necessarily,” Mr. Dufour replied, explaining that the ruling was only that plan commissions and boards of zoning appeals are required to take the oath of office, and whether any other boards are or not would depend on whether the board exercises governmental powers for the welfare of the citizens. “If you don’t,” he said, “then you’re not required to take the oath of office.”

“Unfortunately, our former attorney didn’t mention this to us, and naturally, had we known it was the law of the land, we would’ve complied,” Mr. Ewen stated. “We look to our attorneys for guidance and he didn’t point that out, so that’s all we can say.”

The commissioners then deliberated on how to proceed. “I think we need to look into it, and table it for now”, said District 1 Commissioner Phillip Marshall.

“I think before we table it, I need to read it”, Commissioner Cardwell replied, referring to his resolution that would address the current issue by declaring the current board as vacant and re-appointing the members. 

“I make a motion we table it for now, so we can investigate, read it, see what the law actually says” Commissioner Ewen added. Commissioner Marshall seconded the motion. However, after several requests were made from the public to hear the resolution, Mr. Cardwell read the proposed resolution aloud:

“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.

“The intent of this is to bring the community together and get in behind us and rally behind us, instead of against us,” Mr. Cardwell explained. “That’s the whole purpose of this — to show that the board of commissioners is working in unison for something for the public… I ain’t saying we’re gonna dissolve it. We’re gonna vacate it and re-appoint it, and get some people working together in doing this and doing this right. That’s my intent behind this.”