Commissioners Ewen & Marshall Officially Reject Resolution to Declare Plan Commission Vacant

On the morning of Tuesday, May 6, the Washington County Board of Commissioners met to discuss and vote on several issues, one of which has been a topic of interest for nearly two months: Whether or not to declare the Plan Commission vacant due to members not taking an oath of office as stated in Indiana Code 5-4-1-1.2 (c) and (d).

Third District Commissioner Tony Cardwell, Jr.

Section (c) 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."

On March 18, District 3 Commissioner Tony Cardwell Jr. and former Plan Commission member Adam Dufour approached the Board with a resolution that stated the following:

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.

Commissioners Todd Ewen and Phillip Marshall tabled the resolution during the March 18th meeting as well as during the subsequent April 1st meeting, stating that they wanted Plan Commission attorney Lisa Fleming and Commissioner's attorney April Geltmaker to review the resolution and the Indiana Code in question before taking further action.

On the morning of the April 15th meeting, attorney Lisa Fleming revealed that she was in the process of administering the oaths of office to the Plan Commission, saying, "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."

Ewen and Marshall again tabled voting on the resolution. "It’s not necessary," said Commissioner Ewen afterwards on April 15th. "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.'"

The resolution was finally laid to rest this morning, as the commissioners moved to Agenda item 5H: Plan Commission. Commissioner Cardwell again brought up his resolution to declare the board vacant, to which Commissioner Ewen replied, "We have a full board right now. And we have a legal full board... we have legal backup on this, and quite frankly it’s the most ridiculous accusation I’ve ever heard in my life. I’m not voting in favor of this."

Second District Commissioner Todd Ewen.

"I make a motion to accept the resolution," said Commissioner Cardwell.

"I’m not going to second that," replied Ewen.

A long silence followed. "It’s already been done," Commissioner Marshall said quietly.

"This was back when we figured out that the zoning board had not taken the oath of office," replied Cardwell.

"But since then they have," said Marshall.

"This resolution has gotten tabled for, I think, three meetings," Cardwell said. "This makes the fourth one, so we just need to do something with it one way or another." Cardwell went on to say that he believed the resolution should be passed so the board can be re-appointed, “so there’ll be no argument at that point.”

"There’s no argument," Ewen responded, "because everyone on the board has taken the oath of office, including myself."

"After the 30 days was up," Cardwell said. "But that’s a matter of opinion."

"No, it’s a matter of law," Ewen replied, "and we can prove it. I’m tired of hearing about it."

"That being said, it’s over with," concluded Marshall.

With that, the resolution was considered rejected, and the meeting continued.

First District Commissioner Phillip Marshall.

Afterwards, The Washington County Times reached out to former Plan Commission member Adam Dufour, who initially brought the issue before the Commissioners with Cardwell on March 18th, for comment on the outcome.

"I'm glad they finally did something one way or another," Dufour said. "But I would like to have seen them take the high road and fulfill the exact letter of the law, as well as take advantage of the opportunity to rebuild the Plan Commission board and restore public trust, rather than opting to do the bare minimum that was required by the appeals court in the ruling."

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