Magistrates could face criminal charges, removal for inaction

If Whitley County Fiscal Court members don’t pass a budget by July 1 and the government has to shut down, then fiscal court members could be charged with malfeasance, and possibly could be removed from office. However, the department of corrections requiring the county to hire a jail administrator because they don’t feel the jailer has run the jail very well, probably wouldn’t meet the requirements for removing an elected official from office for malfeasance, according to Allen Trimble, who has served as Commonwealth’s Attorney for the last 18 years.
“It has to be an intentional act in violation of a statute, then we have malfeasance,” Trimble said.
If an elected county official willfully fails to carry out a duty, which is required by statute, then the offending party is subject to being charged with malfeasance or misfeasance of office.
Failing to implement a balanced budget by July 1, which is required by state law, could rise to the level of malfeasance of office, however, Trimble said he doesn’t think this will happen.
“I don’t suspect that would ever become an issue. I think that all the officials involved would take some action. I don’t think any of them would intend to intentionally violate the statute. I think before it comes to that they would take what action is required,” he added.
When asked whether someone should consider filing malfeasance charges against the fiscal court if the government shuts down, Whitley County Judge-Executive Mike Patrick said, “It will probably be something that could be considered. I’m not going to say that they wouldn’t have a little justification. I don’t think it is out of the realm of consideration.”
Trimble said he thinks fiscal court members will get a balanced budget passed before the July 1 deadline, and that if they don’t then the state would come in, and take over operation of the county.
Trimble said he thinks during that period of time, if the officials could be identified who didn’t implement a balanced budget, then they could be subject to being charged with malfeasance.
In order to charge someone with malfeasance of office, the matter would have to be brought to the grand jury. The grand jury would then have to issue an indictment, and the matter would be tried in district court, Trimble said.
If convicted, an elected official would be fined between $100 and $1,000, and the office would be declared vacant.
“I think anybody would have the right to come to the grand jury, and the grand jury would consider it,” Trimble said. “If they wanted to come to the grand jury, we would consider it. It doesn’t have to be a law enforcement officer. It could be a citizen, but it would have to be a specific provable violation of a county official not doing something he was required by statute to do.
“Most of the time, if you find one of those failures, it is one of these things that they neglected to do. It is an oversight, and is corrected shortly after it is found. It is not a common thing to have happen. Most things that are not done can immediately be corrected by the official, who is doing it. In my opinion, once they do that, then I think they are purged of the crime.
“I think the statute is designed for the county official who is recalcitrant. He knows what he is supposed to do, but he doesn’t do it, and refuses to do it, but the statutes clearly require him to do it.”
In the case of the state ordering Whitley County to hire a jail administrator to oversee the facility, Trimble said he doesn’t think this would rise to the level of malfeasance based on his understanding of the state’s allegations against the jailer.
“The reason why is, as I understand it, they have charged him with various failings in the way he has maintained the jail, or conducts the jail activity that is more of a critique in job performance which is always subject to argument. The jailer has his side, and corrections has their side. Civil courts are meant to make those decisions, not criminal courts,” Trimble said.
“From a criminal standpoint, it is very difficult to charge somebody with malfeasance because you claim they are not doing as good a job as they could be.”
Trimble said if you had an instance where a police officer took a prisoner to the jail, and the jailer refused to accept the prisoner, or intentionally violated a judge’s order, then that would be another matter.
“Then he would not be doing something that he was required to do, and that might be the subject of malfeasance, but because of the way he runs the jail and someone takes issue as to that, that is not really a malfeasance issue. It is when they intentionally fail to do something that the statutes require them to do that is where malfeasance comes into play,” Trimble said.
“Not all county officials are the same. Some are better than others. Some do their jobs better than others, and it is not designed to remove an official that someone thinks is not doing the best job, or doing as good a job as they could. It is not meant for that. This statute is meant to remove that recalcitrant official that refuses to carry out statutory prescribed duties,” Trimble said.
Trimble said state law is intentionally set up so that it is difficult to remove an elected official from office.
“It takes a lot to overcome the will of the people, so it takes a lot to remove a duly elected official from office,” Trimble said. “Otherwise, you would have something going all the time. This is not to say any of this is politics, but the statutes are meant to keep politics out of malfeasance of office.
“The constitution of this state wants every public official to do what the law requires them to do. Sometimes they make a mistake and neglect it, but they correct it. This statute is meant for those officials, who will just adamantly not comply with the statute when they know what they are supposed to do, and they refuse to do it.”