State of Indiana v. Beth A. Neff ( 2018 )

FILED
May 11 2018, 8:10 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE
Curtis T. Hill, Jr. Jeffrey M. Heinzmann
Attorney General of Indiana Heinzmann Law Office, LLC
Fishers, Indiana
Patricia C. McMath
Civil Appeals Section Chief
Larry D. Allen
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
State of Indiana, May 11, 2018
Appellant/Cross-Appellee-Plaintiff, Court of Appeals Case No.
18A02-1708-IF-1933
v. Appeal from the Delaware Circuit
Court
Beth A. Neff, The Honorable Marianne L.
Appellee/Cross-Appellant-Defendant. Vorhees, Judge
Trial Court Cause No.
18C01-1707-IF-15
Mathias, Judge.
[1] On July 12, 2017, the State filed a complaint for removal from office against
Yorktown clerk-treasurer Beth A. Neff (“Neff”) for neglecting to perform
several of her official statutory duties. Neff filed a motion to dismiss the
Court of Appeals of Indiana | Opinion 18A02-1708-IF-1933 | May 11, 2018 Page 1 of 19
complaint, which the Delaware Circuit Court denied. After a summary
evidentiary proceeding, the trial court entered findings of fact and conclusions
of law and entered judgment in Neff’s favor and against removal from office.
[2] The State appeals the entry of judgment on the merits in favor of Neff. We
reverse and remand. Neff also cross-appeals the trial court’s decision to deny
her motion to dismiss, and on this issue, we affirm.
Facts and Procedural History
[3] Neff was elected to serve as the clerk-treasurer for the town of Yorktown (the
“Town”), Indiana in 2007, and she has served in that capacity ever since. In
2013, the State Board of Accounts (“SBA”) performed an examination and
audit of Yorktown’s 2012 financial records kept by Neff. On December 5, 2013,
SBA Field Examiner Mike Wade (“Wade”)1 compiled a report of his findings
following the examination. Wade discovered several errors with the Town’s
records including that: (1) Neff had failed to reconcile Yorktown’s accounts for
all of 2012; and (2) Yorktown’s Park One Wastewater Utility account was
overdrawn by $140,943. As a result, Yorktown’s 2012 annual report submitted
to the State did not properly reflect the actual financial activity of the Town.
[4] On November 14, 2013, prior to issuing the financial report, Wade and his
supervisor Bill Vinson (“Vinson”) met with Neff, town council president Robert
1
Wade’s first name is Curtis, but he testified during the hearing that he preferred to be called Mike. Tr. Vol.
2, p. 49.
Court of Appeals of Indiana | Opinion 18A02-1708-IF-1933 | May 11, 2018 Page 2 of 19
Ratchford, and town manager Pete Olson to explain the issues. Wade and
Vinson discussed the errors with Neff and also directed her to the applicable
sections of the Indiana Code and the State Board of Accounts Manual—the
Accounting Uniform Compliance Guidelines Manual for Cities and Towns (the
“Manual”)—in order to rectify the errors and avoid making them again in the
future. Vinson and Wade also explained audit adjustments totaling $57,752.92
that Neff needed to correct to come into compliance with SBA standards.
[5] In 2016, Wade returned to the Town to perform an audit of the financial
records kept by Neff from 2013–2015.2 On November 10, 2016, Wade compiled
and filed a report of his findings following the examination. The report states in
part:
The Town’s accounting records have not been reconciled to
depository balances since December 31, 2012. The accounting
records contained numerous posting errors, such as transactions
not being posted, receipts posted to incorrect funds, and transfer
between funds’ errors. In addition, as incorrect transactions were
discovered, correcting transactions were recorded incorrectly.
Ex. Vol., State’s Ex. 2 Financial Statements Examination Report, p. 3. Specific
examples of errors that Wade’s examination uncovered included: (1) the
2
Vinson explained the reason for the three-year gap in audits for Yorktown during the hearing:
The state board of accounts had lost about a third of its staff over the prior seven or eight years
and we just, quite honestly, were not able to get to these audits as quickly as possible. We had
the opportunity to pick up all three years and so we came to do the examination for all three
years.
Tr. Vol. 2, p. 115.
Court of Appeals of Indiana | Opinion 18A02-1708-IF-1933 | May 11, 2018 Page 3 of 19
Town’s books had still not been properly reconciled; (2) during 2014, two
transfers totaling $124,826 were posted as transfers out without a corresponding
transfer in; (3) during 2015, six state distributions to the Town totaling $73,955
were not receipted to the Town’s records; (4) the Town’s ledger and annual
financial reports for 2013, 2014, and 2015 did not include the financial activity
of several Town funds; (5) five of the Town’s accounts had overdrawn balances;
and (6) there were over twenty accounts affected by incorrect posting errors. See
Ex. Vol, State’s Ex. 2 Supplemental Compliance Report, p. 4–5; Tr. Vol. 2, pp.
62–68; 124–25. Vinson testified that the examination uncovered so many errors
that the SBA was unable to identify all of them. Tr. Vol. 2, p. 120.
[6] On October 13, 2016, prior to issuing the report, Wade and Vinson met with
Neff, town council president Richard Lee (“Lee”), and town manager Pete
Olson. Wade and Vinson again discussed the errors with Neff and directed her
to the applicable sections in both the Indiana Code and the Manual addressing
the issues. It was during this meeting that Lee first learned that the Town’s
books had not been properly reconciled for forty-eight consecutive months. Lee
then advised Neff to get outside help in order to fix the problems. Neff
suggested hiring the accounting firm Hartman Williams a couple of weeks
before the November 2016 town council meeting, and the town council
approved the proposal.
[7] Hartman Williams’s goal was to come in and rectify the Town’s books for
2011–2015 with an initial cost of $20,000 approved by the Town. Hartman
Court of Appeals of Indiana | Opinion 18A02-1708-IF-1933 | May 11, 2018 Page 4 of 19
Williams’s employee Donna Vinson3 (“Donna”) began working with Neff on
the Town’s books in November 2016. After Donna began working on the
Town’s books, the Town council was notified that “the problem was somewhat
more substantial and significant than they thought,” Tr. Vol. 2, p. 178, and the
cost to remedy the problems increased.
[8] After several months, Donna was able to get the Town’s 2011–2015 books
reconciled to within $2324 at a cost to the Town of over $67,000. As part of her
work, Donna had to conduct a bank reconciliation for every month from
January 2012 through December 2015 because they had not been performed.
Moreover, Donna discovered when reviewing the Town’s books that: (1)
$16,190.55 of the $57,752.92 in adjustments Wade and Vinson provided to Neff
in 2013 had not been corrected on the Town’s records; (2) over one-hundred
and fifty posting errors; (3) thirty-four of the Town’s funds required adjustment;
and (4) net errors totaling $346,340.82. See generally Ex. Vol., State’s Ex. 10; Tr.
Vol. 2, pp. 218–234. Donna’s report filed on June 16, 2017, discussed eighteen
separate findings of errors with the Town’s financial records.5
3
Donna Vinson is Bill Vinson’s wife, but there is no allegation of a conflict of interest. Donna explained
during the proceedings how her firm was independently hired and that she was assigned to help the Town.
See Tr. Vol. 2, pp. 204–05.
4
Richard Lee, the Yorktown town council president at the time, testified that the council decided it was not
worth thousands of extra dollars for Donna to balance the Town’s funds to $0. Tr. Vol. 2, pp. 178–79.
5
At the time of the proceedings, Donna had entered into a new open-ended contract with the Town at a per-
hour cost to reconcile the books from January 1, 2016, through the date of the hearings. Tr. Vol. 2, pp. 179–
80.
Court of Appeals of Indiana | Opinion 18A02-1708-IF-1933 | May 11, 2018 Page 5 of 19
[9] On July 12, 2017, the State filed a complaint for Neff’s removal from office
based on her alleged negligent failure to perform her statutory duties as the
Town’s clerk-treasurer. The three-count complaint alleged in relevant part:
Count 1
[. . .] For the last 24 months the Defendant herein has on more
than one occasion refused or neglected to perform the official
duties of the Clerk-Treasurer of Yorktown in that she has failed
to reconcile at least monthly the balance of public funds, as
disclosed by the records of the local officers with balance
statements provided by the respective depositories, all pursuant
to the requirements of Indiana Code §§ 5-8-1-35(2) and 5-13-6-
1(e).
Count 2
[. . .] The Defendant herein, being a public officer, i.e. Yorktown
Clerk-Treasurer during the last 24 months has failed to follow the
direction of the state examiner (Indiana State Board of Accounts)
in keeping the accounts of the Yorktown Clerk-Treasurer all
pursuant to I.C. § 5-11-1-10, a class B infraction; [. . .]
Count 3
[. . .] The Defendant herein being a public officer, i.e. Yorktown
Clerk-Treasurer during the following 24 months, has failed to
adopt and use the systems of accounting and reporting adopted
by the State Board of Accounts (SBOA) all pursuant to the
Accounting and Uniform Compliance Guideline Manual for
Cities and Towns (SBOA Manual) as directed by the SBOA, and
as such commits a class C infraction which shall result in a
forfeiture of office all pursuant to I.C. 5-11-1-21. [ . . .]
Appellant’s App. pp. 25–28 (emphasis in original).
Court of Appeals of Indiana | Opinion 18A02-1708-IF-1933 | May 11, 2018 Page 6 of 19
[10] On July 17, 2017, Neff filed a motion to dismiss the complaint, which the trial
court denied on July 27. On July 28, the trial court held a summary evidentiary
proceeding on the complaint. And on August 1, the court issued an order
finding that “[t]he State proved beyond a reasonable doubt that Neff failed to
reconcile the Town’s books for forty-eight consecutive months.” Appellant’s App.
p. 13 (footnote omitted) (emphasis in original). But the court entered a
judgment on the merits in favor of Neff and found that removal was not
warranted because “Neff is making mistakes and not performing up to the
standards expected by the State Board of Accounts for Town Clerks. This is
misfeasance and not nonfeasance.” Id. at 16. The State now appeals the trial
court’s decision, and Neff cross-appeals the trial court’s decision denying her
motion to dismiss.
Removal from Office
[11] Here, the trial court issued both findings of fact and conclusions of law, and
very importantly, the factual findings are not in dispute. We will review the
court’s conclusions of law de novo. Citizens Action Coalition of Ind. v. Koch, 51
N.E.3d 236, 240 (Ind. 2016).
[12] Article VI Sections 7 and 8 of the Indiana Constitution provide the mechanism
and standards by which an officer of the State can be impeached. Section 7
states:
All State officers shall, for crime, incapacity, or negligence, be
liable to be removed from office, either by impeachment by the
Court of Appeals of Indiana | Opinion 18A02-1708-IF-1933 | May 11, 2018 Page 7 of 19
House of Representatives, to be tried by the Senate, or by a joint
resolution of the General Assembly; two-thirds of the members
elected to each branch voting, in either case, therefor.
And Section 8 provides that “[a]ll State, county, township, and town officers,
may be impeached, or removed from office, in such manner as may be
prescribed by law.” Our supreme court has explained that both sections should
be construed together. McComas v. Krug, 81 Ind. 327, 333 (1882).
[13] In accordance with both constitutional provisions, our legislature enacted
Indiana Code section 5-8-1-35 (the “Removal Statute”) which provides that an
elected official can be removed for “refusing or neglecting to perform the
official duties pertaining to the officer’s office.” Id. at (a)(2). The State sought
Neff’s removal under this statute.
[14] The duties of a clerk-treasurer are delineated in Indiana Code section 36-5-6-
6(a) which explains that a clerk-treasurer shall do the following:
(1) Receive and care for all town money and pay the money
out only on order of the town legislative body.
(2) Keep accounts showing when and from what sources the
clerk-treasurer has received town money and when and to
whom the clerk-treasurer has paid out town money.
(3) Prescribe payroll and account forms for all town offices.
(4) Prescribe the manner in which creditors, officers, and
employees shall be paid.
Court of Appeals of Indiana | Opinion 18A02-1708-IF-1933 | May 11, 2018 Page 8 of 19
(5) Manage the finances and accounts of the town and make
investments of town money.
(6) Prepare for the legislative body the budget estimates of
miscellaneous revenue, financial statements, and the
proposed tax rate.
(7) Maintain custody of the town seal and the records of the
legislative body.
(8) Issue all licenses authorized by statute and collect the fees
fixed by ordinance.
(9) Serve as clerk of the legislative body by attending its
meetings and recording its proceedings.
(10) Administer oaths, take depositions, and take
acknowledgment of instruments that are required by
statute to be acknowledged, without charging a fee.
(11) Serve as clerk of the town court under IC 33-35-3-2, if the
judge of the court does not serve as clerk of the court or
appoint a clerk of the court under IC 33-35-3-1.
(12) Perform all other duties prescribed by statute.
[15] The parties do not disagree that Neff failed to perform statutory duties required
by her office. Rather, the parties disagree as to the level of negligence in failing
to fulfill those duties necessary to remove a clerk-treasurer from office. The
State argues that “nonfeasance is not a failure to complete all duties all the
time, but that the total failure or neglect of a required duty may suffice.”
Court of Appeals of Indiana | Opinion 18A02-1708-IF-1933 | May 11, 2018 Page 9 of 19
Appellant’s Br. at 15. And Neff contends that “removal must be for a failure to
perform all of the duties, not for the failure to perform a specific duty or even
group of duties.” Appellee’s Br. at 14–15. Both parties cite to the same two
cases to support their respective positions.
[16] In State v. McRoberts, 207 Ind. 293, 192 N.E. 428 (1934), the State sought to
remove several Gibson County councilmen from office for failing to appropriate
$300 in traveling expense funds for the Gibson County School Superintendent.
Id. at 429–30. Our supreme court upheld the trial court’s dismissal of the State’s
complaint and explained:
Can it be said that because the council refused and neglected to
make an appropriation for this one specific item that the
members thereof are subject to be removed from office under the
statute in question? We do not think so. It is not alleged in the
petition that the appellees acted in bad faith or fraudulently when
they refused to make the appropriation. This is not a case where
an officer has refused and neglected to perform the official duties
of his office, as, for instance, where a sheriff closes his office and
remains away and refuses and neglects to discharge the duties
thereof, and has no one to perform his official duties. The latter
case would come squarely within the statute. In the instant case,
however, there is no allegation that the county council or any
member thereof has failed, refused, or neglected to perform the
duties of their office, other than the refusal or neglect to make
this one item of appropriation.
Id. at 430. The McRoberts court clarified the difference between malfeasance and
nonfeasance and noted that the latter “is an omission to perform a required
duty at all or total neglect.” Id. It then identified two legitimate reasons why the
Court of Appeals of Indiana | Opinion 18A02-1708-IF-1933 | May 11, 2018 Page 10 of 19
council may have decided against approving the travel expenditure including:
(1) at the time, taxpayers across Indiana were urging county officers to cut all
useless and unnecessary expenses; and (2) that it was reasonable to believe that
the council believed it was not necessary to make a traveling expense
appropriation for the superintendent until the expense was actually incurred. Id.
at 431.
[17] In State ex rel. Ayer v. Ewing, 231 Ind. 1, 106 N.E.2d 441 (1952), the State sought
to remove Ayer, a Hammond Township trustee, for neglecting to perform
official duties pertaining to his office. Id. at 442. Specifically, the State alleged
that Ayer refused to consider the request and applications of two teachers for
Hammond schools unless each paid $100 to his political campaign. The Ayer
court framed the issue as follows:
The alleged reasons for the trustee’s refusal are unimportant. The
only question is: Did the trustee have a right to refuse to consider
the application either with or without reasons? If he had a right
to refuse to consider the application, his act in doing so cannot by
any flight of the imagination be construed as refusing or
neglecting to perform the official duties pertaining to his office[.]
Id. at 443. Our supreme court then explained that because Ayer “employed
qualified teachers for all the schools in his township he performed his duties in
full in that matter. It cannot be said that because he did not consider, appoint or
employ relator as a teacher, he neglected or refused to perform his official
duties.” Id. The Ayer court noted that “in any special statutory proceedings [],
all jurisdictional averments required by the statute under which the proceeding
Court of Appeals of Indiana | Opinion 18A02-1708-IF-1933 | May 11, 2018 Page 11 of 19
is based must be contained in the petition or the court in which it is filed[.]” Id.
at 446. And because the verified accusation levied against Ayer did not allege a
general failure to perform official duties, the State failed to properly allege the
jurisdictional facts required by statute. Accordingly, our supreme court made
permanent its temporary writ prohibiting the trial court from exercising further
jurisdiction. Id.
[18] The State argues that McRoberts and Ayer support its position that “the pervasive
and continued neglect of [Neff’s] duties as the financial manager of Yorktown
itself fit squarely within the Removal Statute.” Appellant’s Br. at 17. Neff
contends that the two cases stand for the proposition that a clerk-treasurer
cannot be removed from office for acts of misfeasance, and that nonfeasance
necessary to justify removal must be a total neglect to perform all duties. The
Removal Statute states, “refusing or neglecting to perform the official duties
pertaining to the officer’s office” can constitute removal. I.C. § 5-8-1-35(a)(2).
And we do not read our supreme court’s holdings in McRoberts or Ayer to
require the abandonment of all of an officer’s statutory duties in order to justify
removal from office.
[19] Although we recognize several alleged errors committed by Neff during her
time as clerk-treasurer, specifically from 2011–2015, we focus on the allegations
in Count I of the State’s complaint which alleged that Neff had “failed to
reconcile at least monthly the balance of public funds,” Appellant’s App. p. 25,
Court of Appeals of Indiana | Opinion 18A02-1708-IF-1933 | May 11, 2018 Page 12 of 19
for a period of forty-eight consecutive months.6 Indiana Code section 36-5-6-
6(12) requires a clerk-treasurer to “[p]erform all other duties prescribed by
statute.” And one of those statutory duties is to “reconcile at least monthly the
balance of public funds, as disclosed by the records of the local officers, with the
balance statements provided by the respective depositories.” Ind. Code § 5-13-6-
1(e). Moreover, section 2-7 of the Manual states that “[t]he record balance at
the end of every month shall be reconciled with the bank balance.” Ex. Vol.,
State’s Ex. 11.
[20] Neff was aware of her statutory duty to reconcile the Town’s books at the end
of each month. Wade’s report to Neff and the Town on the 2012 financials
noted, “Bank reconciliations were not complete at the time the Annual Report
was filed.” Ex. Vol., State’s Ex. 1, p. 24. During the exit interview, Wade went
over the bank reconciliation issue with Neff, and he testified that she “[s]eemed
to understand,” Tr. Vol. 2, p. 60, what he was saying and what he was showing
her. Wade also pointed Neff to the applicable Indiana Code sections and
Manual sections to prevent similar errors in the future.
[21] Wade’s 2016 report on the Town’s financial records for 2013–2015 notes, “The
Town’s accounting records have not been reconciled to depository balances
since December 31, 2012.” Ex. Vol, State’s Ex. 2 Financial Statements
6
We recognize that the State’s complaint alleged Neff’s failure for the preceding twenty-four months because
of a statute of limitations concern. See I.C. 34-28-5-1(c)(2). However, for the purposes of our discussion, we
focus on Neff’s failure to reconcile the books as a whole once she was made aware of her error.
Court of Appeals of Indiana | Opinion 18A02-1708-IF-1933 | May 11, 2018 Page 13 of 19
Examination Report, p. 3. When Wade was asked about this during the
hearing, the following testimony took place:
[Prosecutor]: The second thing that you note there, that’s in
bold, is bank account reconciliations?
[Wade]: Right.
[Prosecutor]: That’s the same problem that occurred in 2012?
[Wade]: Yes.
[Prosecutor]: And, again, it continued throughout 2013?
[Wade]: Yes.
[Prosecutor]: 2014?
[Wade]: Yes.
[Prosecutor]: 2015[?]
[Wade]: Yes.
[Prosecutor]: Again, same issues as noted in the 2012 exit
interview?
[Wade]: Yes.
Court of Appeals of Indiana | Opinion 18A02-1708-IF-1933 | May 11, 2018 Page 14 of 19
[Prosecutor]: At the end of 2015, do you know how many
continuing or consecutive months the books had
not been reconciled?
[Wade]: Thirty-six.
[Prosecutor]: So, 36 consecutive months, the books of Yorktown
were not reconciled?
[Wade]: Correct.
Tr. Vol. 2, pp. 65–66. Vinson testified regarding Wade’s findings and explained,
“Well, we look at the bank reconciliation that the unit is to perform and [Wade]
went through all 36 months of the examination period, and the attempt to
reconcile never occurred. I mean, the actual reconciling of the records to the
bank never occurred through any of those months.” Id. at 126. Accountant
Donna Vinson also discovered in her examination of the Town’s records that
bank reconciliations had not been completed for forty-eight consecutive
months. Id. at 213–14.
[22] Unlike the councilmen in McRoberts or the trustee in Ayer, Neff’s failure to
reconcile the Town’s books was not an isolated incident explainable as a
discretionary function, but rather represented a total omission to perform a
required statutory duty for forty-eight straight months. See McRoberts, 192 N.E.
at 430. Moreover, distinguished from McRoberts, Neff did not have any
potential legitimate reason for neglecting to properly reconcile the Town’s
financial records on a monthly basis. And distinguished from Ayer, Neff did not
Court of Appeals of Indiana | Opinion 18A02-1708-IF-1933 | May 11, 2018 Page 15 of 19
have the discretion not to reconcile the Town’s financial records with or
without reason. Thus, we reject Neff’s reading of McRoberts and Ayer and hold
that an officeholder like Neff need not abandon each and every statutory duty
before removal from office may be warranted.
[23] The trial court here stated in its findings “[t]he State proved beyond a
reasonable doubt that Neff failed to reconcile the Town’s books for forty-eight
consecutive months.” Appellant’s App. p. 13 (footnote omitted) (emphasis in
original).7 Importantly, this is not a discretionary duty; rather this is a statutorily
required official duty for the clerk-treasurer of a town. See I.C. § 5-13-6-1(e).8
And a failure to reconcile the Town’s financial records for forty-eight straight
months is the precise egregious failure to exercise a statutory duty that our
supreme court identified in McRoberts and Ayer. The potential effect of Neff’s
inaction was explained by Donna during the hearing:
[I]n order to meet statutory requirements for expending funds,
you have to know how much money you have in the funds. If the
fund doesn’t have any money, then the statute prohibits more
7
We take this opportunity to agree with the State and hold that due to the quasi-criminal nature of the
removal proceedings, the proper standard for a trial court in finding its facts in these situations is for clear and
convincing evidence and not beyond a reasonable doubt. See, e.g., Tucker v. Marion County Dept. of Public
Welfare, 408 N.E.2d 814 (Ind. Ct. App. 1980); see also Matter of Boso, 231 S.E.2d 715, 718 (W. Va. 1977)
(quotation and citation omitted); State v. Manning, 259 N.W. 213, 216 (Iowa 1935); McMillan v. Diehl, 190
N.E. 567, 568 (Ohio 1934). But this had no effect on the outcome of the case before us because the
underlying facts are not in dispute, and the trial court still found the higher threshold was met.
8
We reject Neff’s argument that she did not commit nonfeasance because she was attempting to reconcile the
books but consistently made errors. See Appellee’s Br. at 17–18. Neff was instructed by Wade and Davis at
their exit meeting in 2013 on how to properly perform reconciliations. Despite any attempt, Neff’s errors
caused the Town’s books to not be properly reconciled for a period of forty-eight consecutive months. Neff’s
duty as clerk-treasurer required her to properly reconcile the books “at least monthly.” I.C. 5-13-6-1(e).
Court of Appeals of Indiana | Opinion 18A02-1708-IF-1933 | May 11, 2018 Page 16 of 19
money from being expended. So, if you’ve got errors that you
haven’t identified, then you don’t really know what’s in those
funds. And without that, then you can’t make decisions about
whether or not, the clerk-treasurer’s responsibility is not spending
money if there’s no money there to spend. The town council’s
responsibility is to make decisions regarding how the town’s
going to use their money. If they don’t know exactly what’s
there, then they’re not making decisions based on good
information. The other, the other thing that comes into play is
that tax rates are, one of the things that goes into the budgetary
process is, what the June 30 balances are for a unit of
government for those property tax, or funds that receive property
taxes. If you are putting down that June 30 balance and it’s not
correct because you’ve got an accumulation of errors, then that’s
going to affect your tax rate. Either by raising it too much, if you
are showing a lower balance than you really have, or reducing it
by not, by showing more than you have in the fund.
Tr. Vol. 2, pp. 220–21.
[24] While Neff’s actions may not rise to the level of the hypothetical provided by
the McRoberts court “where a sheriff closes his office and remains away and
refuses and neglects to discharge the duties thereof,” 192 N.E. at 430, she
neglected to perform a critical, official, and mandatory duty of her office for an
extended period of time. Therefore, we hold that Neff’s failure, over a period of
years, to perform a critical, official and mandatory duty for a clerk-treasurer
falls squarely within the confines of Article VI Sections 7 and 8 of the Indiana
Constitution and our legislature’s response via the Removal Statute.
Court of Appeals of Indiana | Opinion 18A02-1708-IF-1933 | May 11, 2018 Page 17 of 19
Neff’s Cross-Appeal
[25] Neff also cross-appeals arguing that the trial court erred when it denied her
motion to dismiss the State’s complaint against her. Appellee’s Br. at 23–27;
Appellee’s Reply Br. at 6–8. We review a trial court’s denial to grant or a deny a
motion to dismiss for an abuse of discretion. State v. Thakar, 82 N.E.3d 257, 259
(Ind. 2017).
[26] Due to the summary nature of Neff’s proceeding, the State here had to meet a
higher standard of pleading in its complaint. See Ayer, 106 N.E.2d at 446. The
State’s complaint specifically alleged several ways in which Neff neglected to
perform her duties as clerk-treasurer including: (1) her failure to reconcile
monthly the Town’s financial accounts for twenty-four months; (2) eight
detailed examples of Neff’s failure to use and follow the Manual; and (3) five
detailed examples of Neff’s failure to follow and implement the
recommendations of the SBA. See Appellant’s App. pp. 25–28; Cf. Ayer, 106
N.E.2d at 442 (the State only alleged a single failure of Ayer’s official duties).
We agree with the trial court that the State’s complaint sufficiently alleged
specific facts necessary to fall under the trial court’s jurisdiction under Indiana
Code section 5-8-1-35(a)(2). See Appellant’s App. p. 78. Thus, the trial court did
not abuse its discretion when it denied Neff’s motion to dismiss.
Conclusion
[27] The Removal Statute does not require a town’s clerk-treasurer to refuse or
neglect to perform each and every official duty before removal from office is
Court of Appeals of Indiana | Opinion 18A02-1708-IF-1933 | May 11, 2018 Page 18 of 19
warranted. And based on the facts and circumstances before us, because Neff
neglected to properly reconcile the Town’s financial records for forty-eight
consecutive months, the trial court erred when it determined that her removal
was not warranted under the Constitution of Indiana and the Removal Statute.
Accordingly, we reverse the trial court’s decision not to remove Neff from
office, and we remand for proceedings consistent with this opinion. On Neff’s
cross-appeal, we affirm the trial court’s decision to deny Neff’s motion to
dismiss.
[28] Reversed in part, affirmed in part, and remanded.
Riley, J., and May, J., concur.
Court of Appeals of Indiana | Opinion 18A02-1708-IF-1933 | May 11, 2018 Page 19 of 19