Tuesday, December 30, 2014

Flashback: Lawrence County Judge Ordered City Of Mitchell To Pay Salary To Council Member Who Never Lived In City

If you don't believe Charlie White got a raw deal, then let me remind you of the recent case of a Mitchell city council member in Lawrence County who sued city officials who withheld his pay because he did not reside in the council district to which he had been elected in 2007. Everett Ferrel not only never lived in his council district, he wasn't even a resident of the city.

Ferrel mistakenly believed he lived in the city limits and successfully ran and got elected to the council without anyone challenging his residency. As a council member, he earned a salary of $4,900 a year. After the council learned Ferrel didn't live in his district well into his four-year term, the remaining members voted to withhold his salary. Ferrel never resigned, and the city never took formal action to remove him from office. He also wasn't charged with vote fraud for voting and running for office in a municipal election in which he wasn't legally permitted to participate.

Ferrel sued the city for his unpaid salary under Indiana's Wage Payment statute, which entitles an employee to recover up to double the amount of their wage claim as damages, plus their attorney's fees. Judge Andrea McCord ruled in Ferrel's favor and ordered the city to pay the $12,250 of salary the city withheld from him. Judge McCord followed the reasoning of a long line of cases holding an officeholder duly elected and sworn into office holds that office under color of law until legally removed from office.

In Charlie White's case, the Town of Fishers never challenged his residency. Rather, he voluntarily resigned from his town council seat to which he had been duly elected after questions were raised about his residency. Even though he attended all town council meetings and otherwise performed his duties, he returned the salary he earned during a several month period in question. Yet he was still charged and convicted of a felony theft charge. The Court of Appeals' opinion yesterday rejected White's argument that he legally held the office until removed through a formal civil proceeding and, therefore, could not be found guilty of theft. The Court of Appeals reasoned that the town was not required to take formal action to remove him under state law in order to find him guilty of theft. It also upheld his conviction for registering and casting a vote in the 2010 primary election using his ex-wife's home while he was in between homes.

Many readers will also recall the case of former Indianapolis City-County Councilor Patrice Abduallah, who claimed a residence at an uninhabitable, vacant home in the district at which he never resided during the more than three and a half years he served on the council and drew about $15,000 a year in salary. When I called him out on it in a blog post in August 2007, he abruptly resigned from the council. He was never charged with theft and vote fraud like White, and he never returned any of his salary. All of his votes as a council member, including his vote in favor of the 65% increase in the local income tax rate, were deemed valid because he had been duly elected and sworn into office. The Marion Co. Election Board had even discovered the fact that he had listed an address other than one located in his district when he filed for re-election in 2007 but still allowed his name to be placed on the Democratic primary ballot.

The Marion Co. Election Board also opted against recommending criminal charges against Sen. Richard Lugar and his wife, Charlene, after it found the couple had been voting at a precinct in Wayne Township for 35 years in which he had no claim of legal residency after he sold the home he owned there in 1977 and moved his family to Virginia. Lugar was allowed to move his voting residence to an old farmhouse he owned in Decatur Township where he doesn't physically reside. When he lost re-election in 2012, he never returned home to Indianapolis. He kept his home in Virginia but continues to cast absentee ballots using that same farmhouse.

Evan Bayh, an attorney like White, is no better. He voted in multiple elections years after leaving the state of Indiana while he worked full-time for a law firm in Washington, D.C. where he and his wife resided, registered their automobile, obtained a driver's license and paid their taxes. That didn't stop him from running for Secretary of State and getting elected, or running for governor two years later when he was challenged for meeting the state's five-year residency requirement. The Supreme Court enunciated the infamous Bayh residency rule that afforded leniency in its interpretation of the state's residency law to permit him to legally run for governor. It built upon a similar lenient residency interpretation it announced in the case of Judge David Evrard, who was allowed to file and run for judge in Perry County while working full-time as a patent lawyer in Washington, D.C. where he and his wife lived, and his step-children attended school. Evrard had the added twist of marrying a woman he was not legally permitted to marry because she was still married to her first husband.

The Indiana Constitution required Gov. Mitch Daniels to reside in Marion County. He built a luxury home in Hamilton Co. to keep his wife happy where the couple lived during his two terms as governor. Nonetheless, he registered and voted using the governor's residence on North Meridian Street in Indianapolis despite the fact he never resided there. He had the audacity to demand White's resignation from office over questions of his voter residency. The same media which castigated White made light of Daniels' fictional residency. Was Daniels prosecuted for vote fraud? Of course not.

All of you Charlie White haters can hate on him all you want, but there is no mistaking the fact that the laws of this state were unfairly applied to prosecute and persecute him. He faced seven felony charges for his actions. The trial court jury found him not guilty of mortgage fraud, but found him guilty of the six remaining felony counts. He lost the statewide office to which he had been overwhelmingly elected by the state's voters and the salary it paid, along with his reputation. The Court of Appeals agreed that two of the four vote fraud-related charges of which he was convicted constituted double jeopardy. It also agreed to toss a felony perjury charge for allegedly lying on his marriage application about his address. Yet he remains convicted of three felony charges, two for vote fraud and one for theft, more than enough to justify the Indiana Supreme Court to strip him of his law license at least temporarily. If that's equal treatment under the law, I learned nothing in law school.


Pete Boggs said...

Has White exhausted his legal options?

Anonymous said...

I wonder if there are federal remedies available to Charlie White. Its obvious he can't get a fair trial in the State of Indiana. Dirty Judges are nothing new. But we certainly seem to have more than our fair share. As a businessman with 30 years of experience around here, I think we have a problem with crooked lawyers and bought and paid for Judges. Too bad. Its a stain on our reputation. And a cost of doing business. If you have enough money or enough political heft you can get things done. Everybody else loses. Its just the way it is in Central Indiana.