As newly elected officials take office in January, it is expected that they will go to work. But, if they don’t, there are few immediate options to remove the person from office.
Impeachment and elections are the most direct way to remove someone from office, officials said. Signing ethics codes, requesting state action and accusation through a grand jury or court action are other options as well, officials said.
In Lake County, at least three council members have not attended meetings or gone into work in recent years. In 2016, East Chicago Councilman Robert Battle was sworn in for a second term while behind bars on multiple felony charges. Most recently, the Lake County Council subpoenaed Lake County Recorder Michael Brown and three of his staff members to discuss why he had been absent for 18 months.
He stopped going into the office around the time the county faced a sexual harassment lawsuit against Brown.
Elected officials are not employees, said Jennifer Simmons, the chief operating officer of AIM, an Indiana municipal growth and leadership organization. The organization has seen situations where an elected official has had an extended illness or “for whatever reason could not make it into the office for extended periods of time,” she said.
Some elected officials spend little time in the office because they are traveling “to generate economic development, attend meetings at the statehouse” as well as other work, Simmons said. Elected officials “have employed capable staff to do the day-to-day responsibilities of the office,” Simmons said.
“Normally, if the community does not agree with the priorities of the elected officials in question they can exercise their disagreements via the election process,” Simmons said.
Northwestern University law professor Nadav Shoked said elected officials make the argument that they don’t always have to be in the office or even within the municipality boundaries because cellphones and email allow them to check in with their staff and other local leaders.
It is easier to tell if an elected official isn’t going into work if he or she has to attend public meetings, where attendance is recorded, Shoked said.
However, it is more common for elected officials to abuse the powers of their office instead of not coming into work, Shoked said.
“Whether you’re corrupt or not, the whole point of being an elected official (is) you want to be able to control whether it’s the zoning for your ward or who gets a liquor license. If you’re never around, you’re not answering your emails or phones, you’re not going to be able to do it. If anything, often the problem is that these people are too active,” Shoked said.
In Brown’s case, the county tentatively listed his salary for 2020 as $1 after learning that he hadn’t been coming into work for over a year. Brown started coming into work about a week before the budget was approved, so his salary was reinstated.
The council formed a committee, which is still open but not active, to investigate impeaching Brown, Lake County Council attorney Ray Szarmach said. The committee recommended passing on its information, including subpoenaed testimony from three of Brown’s employees who stated the office ran efficiently in his absence, to the Lake County prosecutor, he said.
If the prosecutor decided to move forward, then the case would move forward like a trial, Szarmach said.
But, the council agreed that Brown coming back into work was the purpose of tentatively decreasing his salary and the subpoena testimony.
Szarmach said the council relied on two statutes when considering how to move forward in Brown’s case.
One statute states that compensation has to be established on an annual schedule, so the council couldn’t change Brown’s salary for 2019 this year, Szarmach said. The other statute states a written accusation can be filed in superior or circuit court, he said.
In the accusation, one of three items that the elected official has to be found guilty of is “refusing or neglecting to perform the official duties pertaining to the officer’s office,” according to the statute.
Szarmach said current state statutes uphold due process.
“That’s pretty comprehensive. To get the legislature to change that statute, that you can’t set compensation based on hours worked, would be very difficult,” Szarmach said.
Shoked said local governments should separate elected officials and non-elected employee compensation, because it is easier to monitor the attendance of a non-elected employee.
The “basic problem in American law,” which isn’t done in Northeastern states like New Jersey or Massachusetts or anywhere else in the world, is that “we vote for everything,” Shoked said.
A position like recorder, Shoked said, is similar to a management position rather than an elected office.
“These people end up being elected, and then there’s no prerequisites for being elected to office, you just need to find enough people to vote for you. You don’t have to be qualified. I think this is really the result of that basic problem,” Shoked said.
Cynthia Baker, the director of the law and state government program at the Indiana University Robert H. McKinney School of Law, said that signing a code of ethics is another tool to hold elected officials accountable.
But, if someone “doesn’t take it seriously or makes a mockery of it” then the code of ethics won’t serve its purpose, Baker said.
“Anyone who signs it is putting out a promise,” Baker said. “It’s a lot of responsibility to hold public office.”
