                                                                             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
