Thursday, July 12, 2012

If Charlie White Had Only Been A Resident Of Lawrence County

Former Secretary of State Charlie White was charged and convicted of theft for drawing a salary as a Fishers Town council member for a several month period that a Hamilton County court determined that he had not been residing within the boundaries of his town council district despite the fact that White repaid all of the money, in addition to taxes he paid on the salary he returned to the Town of Fishers. A similar case out of Mitchell in Lawrence County yielded an entirely different result.

A Mitchell city council member, Everett Ferrel, was deemed not to be residing within the boundaries of the city of Mitchell despite his election to the council in 2007 so the city refused to pay him his council member's salary during most of the four-year term to which he was elected. Mitchell council members are paid an annual salary of $4,900. After Ferrel disputed the refusal of the city to pay him his council salary, the city hired a special counsel to file a declaratory judgment in the Lawrence Circuit Court to determine whether the city was obligated to pay Ferrel his salary. Because the city never took formal action to remove Ferrel from the council, Judge Andrea McCord determined that the city had to pay him all of the unpaid wages it had withheld from him, which amounted to $12,250, despite the fact that it was undisputed that Ferrel did not live within the city's boundaries.

Under Indiana's Wage Payment Statute, an employer is actually liable not only for the amount of any wages legally due to the employee, but it is also liable for double the amount of unpaid wages as damages, plus the attorney's fees incurred by the employee in seeking to recover his unpaid wage claim. Apparently the parties conducted a mediation at which Ferrel agreed to accept only the $12,250 owed to him and no damages.

So here you have two council members in different counties within the state of Indiana subject to the very same laws. Charlie White agrees to resign from his council seat and repay the wages he was paid for a several month period when he was no longer living within his district. He is still charged by a special prosecutor with felony theft. Hamilton Co. Superior Court Judge Steve Nation denied White's attorney's motion to dismiss the theft charge against him, and the jury found him guilty. In Lawrence County, a council member demands his full salary even though it is determined that he doesn't reside within the city limits. He refuses to resign from the council, and Lawrence Co. Circuit Court Judge Andrea McCord rules that he was entitled to his full salary despite not living within the city because the city did not take formal steps to remove him from the office to which he was elected. More importantly, Ferrel was under no pressure to resign from the council since the Lawrence Co. Prosecutor wouldn't file criminal charges against Ferrel like the special prosecutors did in White's case. It's all further fodder for the view that Charlie White got screwed up in Hamilton County big time no matter how you personally feel about him. White's only hope is that the Indiana Court of Appeals hearing his appeal agrees with that view.


varangianguard said...

Are the situations exactly the same? I'm not so sure. Did the Mitchell councilman intentionally mask his domicile (that being fraud)?

He wasn't ever paid, the Fishers guy was, and was found to be acquiring such pay by fraudulent means in a court of law (that being theft).

If every poor sap who got caught cheating (or breaking the law) was able to get a "Get Out Of Jail Free" card if they promised to pay back their ill-gotten gains, then would there be any need for white collar prisons today?

Lawyer said...

White was removed from his seat by law. The ordinance in Fishers stated that the council member was removed when he left the district.

Gary R. Welsh said...

First of all, White always resided in Fishers at all times, and he was elected at large. The question was whether he still resided in the district in which he was initially elected. Ferrel never lived within the municipal boundaries of the city. He was never eligible to hold the office. He was initially paid his salary until the problem was discovered and then the city started withholding his pay, apparently thinking that would cause him to quit. He wouldn't resign, and neither the city nor the prosecutor took legal action to officially remove him from office. The Fisher's city attorney took the position that White was not required to pay back salary he had already been paid, citing case law that he still held office under color of law up to the time he resigned from the council. That position is supported by long-standing case law in Indiana. White was not removed from his council seat; he voluntarily resigned. White was prosecuted nonetheless for theft, even after he repaid the salary that he was under no legal obligation to repay.

Paul K. Ogden said...

Gary Welsh is exactly right as was the Fishers city attorney. The worst charge of all the bogus charges against White was the "theft" charge. He did the have to pay him. Period. Indiana law is crystal clear on that subject. You don't pay him and you end up paying him his salary times three and his attorney's fees. I know...I litigated that issue with the Marion County Coroner when the Council thought they could choose not to pay him for work.

The theft charge against White should have been dismissed by the trial judge and never been allowed to go to trial.

varangianguard said...

C'mon Paul, saying a politician "did the work" is a bald-faced fantasy in most cases. Better perhaps to say "he showed up when he was supposed to", if he did, that is. If politicians "did the work", the various levels of government would most certainly perform better.