Chesterton Tribune                                                                                   Adv.

Mary Powell case highlights shortcomings of Hoosier laws

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A sticker posted on the padlocked door of 267 Howe Rd. states, “This property was found vacant and (in accordance with mortgage agreement, H.U.D. or V.A. guidelines) has been secured.”

It certainly would appear Mary Powell, the missing Ward 5 Porter Town Council member who’s attended only a few meetings since March, doesn’t reside there and may have forfeited her elected office. But according to state officials, Indiana residency laws are open to interpretation.

According to Tom Morton, deputy director of the Indiana Association of Cities and Towns, “The definition of legal residency is pretty fuzzy. Just because she’s living somewhere else doesn’t mean she’s changed her legal residency.”

According to Indiana law, a person’s residence may be established by intent and conduct taken to implement the intent. In August, Powell told the Chesterton Tribune she would be gone “off and on traveling until my new job has stabilized,” and that she had not moved to Florida despite what some evidence may have indicated.

Dale Simmons, co-general counsel of the Indiana Election Division, said residency is not black and white. A person’s residence is where they lay their head down to sleep, but it doesn’t say how often, he added.

An example, said Simmons, are college students who live most of the year in another location but declare their home as their legal residence.

Unlike Powell, college students haven’t taken an oath to serve the public as an elected official and to discharge the duties of that office. But according to IACT’s Morton, nothing says a Town Council member must come to the town hall every day -- or at all.

Simmons said indicators of legal residency are where a person is registered to vote, where they have utilities listed in their name, where their name is listed in a telephone directory, or where they obtained a driver’s license.

“The upshot is, a person who maintains an apartment in a city but is on the road 90 percent of the time, as long as they say they intend their legal residence to be there when they’re not on business, it’ll be pretty tough (to dispute that,)” said Simmons.

Indiana law states a person who has a residence in a precinct retains residency in that precinct until the person abandons the residence by having the intent to abandon the residence; having the intent to establish a new residence; and acting as provided in this intent by establishing a residence in a new precinct.

No law says a person can’t move to a new residence, but in the case of elected Town Council members, Simmons said they may not move out of the district, or ward, from which they were elected. Powell certainly can move, he said, but she has to stay within Ward 5.

As of late last week, Porter officials had not been notified of a new address for Powell. As early as Sept. 19, a subscription renewal notice sent to the Powell home was returned to the Chesterton Tribune marked “Moved, left no address. Unable to forward.”

Indiana Code 36-5-2-6 states a member of a legislative body who is elected by the voters of the entire town but is elected or selected as a candidate from a district forfeits office if the member ceases to be a resident of the district. The same applies if voting were conducted within the districts as opposed to at-large election.

"It’s not an uncommon question we get,” said Simmons. “People move out of their elected district and they don’t understand they should resign.”

Simmons makes a distinction between technically forfeiting a public office and actually being removed from office. Despite private and public appeals that she do so, Powell so far has refused to resign.

In extreme cases, Simmons said state law provides two ways to attempt to remove an elected official from the office they hold.

Although the Town Council has taken no action publicly, Porter Town Attorney Valerie Hughs confirmed she has been researching the possibility of asking a judge to declare Powell’s seat vacant. “We can ask a judge for a declaratory judgment. That would settle the matter once and for all. A judge may be able to settle the residency issue.”

Either a registered voter or the Town Council could file the petition and would have to present sufficient evidence regarding Powell’s residency and intent to convince a judge to enter an order removing her from office, but the order could be appealed and the Ward 5 seat left in limbo while the litigation plays out.

State law also allows a separate cause of action to be filed by the county prosecutor, said Simmons, when a person unlawfully holds or exercises a public office within Indiana, or whenever a public officer does or allows an act which, by law, works a forfeiture of the officer’s office.

In either case, said Simmons, Powell would have to be found in order to be served with notice of the legal action brought against her.

Simmons also said if Powell no longer legally resides in Porter but continues to accept her payroll paycheck as a Porter town official, “It’s a fraud if it can be proved. You’d have to come up with the evidence.”

Efforts to reach Powell for this article were unsuccessful.


Posted 10/16/2001



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