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Saturday, February 04, 2012

Ind. Gov't. - Some thoughts about replacing Charlie White [Updated]

Here is the Governor's press release from 2:51 AM this morning, February 4, 2012:

Message from Governor Daniels about the Office of the Indiana Secretary of State:

“Effective immediately, I have appointed Jerry Bonnet, a Secretary of State employee since 2005, and currently chief deputy, to serve as Secretary of State on an interim basis. This is an exceptionally busy time in the Secretary of State’s office as signatures for president, U.S. Senate and governor are being certified this month. Jerry, a Yorktown native, has agreed to serve until I either select someone else to serve the remainder of the current term or until the prior occupant is reinstated.

“I have chosen not to make a permanent appointment today out of respect for the judge’s authority to lessen the verdict to a misdemeanor and reinstate the elected office holder. If the felony convictions are not altered, I anticipate making a permanent appointment quickly.

“Jerry Bonnet is a longtime employee who absolutely knows what should be done to provide the effective supervision and oversight the office requires.”

A copy of the appointment letter may be found here: http://www.in.gov/gov/files/Press/020412letter.pdf

The appointment letter says simply:
Pursuant to Indiana code § 5-8-1-38 there is now a vacancy in the office for Secretary of State. Under the authority given to me by the Indiana Constitution and Indiana Code § 3- 13-4-3, I hereby appoint you Secretary of State for the State of Indiana, effective immediately.
Notice that although the press release states this is an interim appointment the appointment letter itself does not.

Did the Governor do the "right thing" in appointing a replacement and saying Charlie could resume office if the convictions are reduced to misdemeanors? It does appear the statute builds in contingencies such as reduction in sentence.

Here are applicable provisions of IC 5-8-1-38, in the Chapter headed: "Impeachment and Removal From Office." According to this statute, the office became vacant by operation of law upon White's conviction.

(b) Any public officer convicted of a felony during the public officer's term of office shall:
(1) be removed from office by operation of law when:
(A) in a jury trial, a jury publicly announces a verdict against the person for a felony;
(B) in a bench trial, the court publicly announces a verdict against the person for a felony; or
(C) in a guilty plea hearing, the person pleads guilty or nolo contendere to a felony; and
(2) not receive any salary or remuneration from the time the public officer is removed from office under subdivision (1).
(c) The subsequent reduction of a felony to a Class A misdemeanor under IC 35-50-2-7 or IC 35-38-1-1.5 after the:
(1) jury has announced its verdict against the person for a felony;
(2) court has announced its verdict against the person for a felony; or
(3) person has pleaded guilty or nolo contendere to a felony; does not affect the operation of subsection (b).
(d) If the conviction is:
(1) reversed;
(2) vacated;
(3) set aside;
(4) for a felony other than a felony arising out of an action taken in the public officer's official capacity, reduced to a Class A misdemeanor under IC 35-50-2-7 or IC 35-38-1-1.5; or
(5) not entered because the trial court did not accept the guilty plea; and the public officer's term has not expired, the public officer shall be reinstated in office and receive any salary or other remuneration that the public officer would have received had the public officer not been removed from office.
(e) If the conviction is reversed, vacated, or set aside and the public officer's term has expired, the public officer shall receive any salary or other remuneration that the public officer would have received had the public officer not been removed from office.

(f) A vacancy in a public office caused by the removal of a public officer under this section shall be filled as provided by law. If a convicted public officer is reinstated, the person filling the office during the appeal shall cease to hold the office.

Subsection (g) states in part: "The person who is required or permitted to fill the vacancy must comply with IC 3-13."

It seems like a good thing that the Governor has named an interim or acting Secretary of State to manage the office until everything is sorted out. However, it also appears that the Governor does not have authority to officially fill the vacancy yet. The Governor's appointment letter (which says nothing about interim) indicates that his appointment has been made pursuant to IC 3-13-4-3. Here is that provision, as it exists today:

Sec. 3. (a) This section applies to a vacancy that occurs in a state office other than governor, lieutenant governor, or a judicial office. * * *
(d) A vacancy that occurs in a state office other than by resignation or death shall be certified to the governor by the circuit court clerk of the county in which the officer resided.

(e) The governor shall fill a vacancy in a state office by appointment of a person of the same political party as the officer who held the vacated office.

(f) The person who is appointed by the governor holds office for the remainder of the unexpired term and until a successor is elected and qualified.

As added by P.L.5-1986, SEC.9. Amended by P.L.3-1987, SEC.430; P.L.119-2005, SEC.1; P.L.225-2011, SEC.84.

Re "shall be certified to the governor by the circuit court clerk of the county in which the officer resided," we know that Charlie White resides in Marion County, so that would be Marion Circuit Judge Rosenberg, not Judge Nation, who presided over the Hamilton County trial. Until the Governor receives the certification from Judge Rosenberg, Hamilton County, therefore, it appears he cannot appoint a permanent replacement under IC 3-13-4-3 until he receives a certification from the Hamilton County Clerk. [Updated]

This discussion is separate from the issues raised by the civil case decided by Judge Rosenberg, now pending emergency transfer to the Supreme Court, which dealt with whether White was eligible and qualified to participate in the election for Secretary of State. Judge Rosenberg found against White in that case.

[Updated] Sorry, strike that most interesting part! I had it in my head White resides in Marion County, in the "seat of government." Still, Daniels must wait for a the certification, which presumably will follow sentencing.

Posted by Marcia Oddi on February 4, 2012 02:40 PM
Posted to Indiana Government