Commissioners take step to remove McFadden from Regional Sewer Board, board's attorney says they can't remove him

During the May 19^th meeting of the Marshall County Commissioners, they asked the county attorney to investigate the possibility of removing one of their appointments to the Marshall County Regional Sewer District Board. Specifically, they wanted to remove Tom McFadden, who serves as president of the sewer board.   

Attorney Surrisi said the language used in creating the county’s sewer board chose an appointed board over an elected board.  For an appointed board, the language includes a “for any cause” vacancy provision, which was discussed during the public hearing and recommended for approval to IDEM with the creation of the regional sewer district.  Surrisi said, “As the board sits today, based upon the language in the petition, you do have the authority to make 'at-will' removal of any of your appointees.” 

To be clear, the attorney created Ordinance 2025-16 that sets out the statutory authority and details on the petition filed by the county for the creation of the regional sewer board, IDEM’s approval, the law for “as-will” removal, and the Home Rule Act, which gives the presumption that local government can use their local power to dictate how they will handle their business.

The attorney also drafted a proposed letter to Tom McFadden, one of their appointees to the sewer board, whom the commissioner would like to remove. The letter advises him of the commissioner’s proposed action to remove him. It gives him an invitation to come to the next commissioner’s meeting to discuss the district and the commissioner's concerns.

Attorney Surrisi said the county could also ask IDEM to rehear or reconsider its final order to create the district. They would have to present newly discovered evidence that wasn’t available.  He said the feasibility or hardship wouldn’t be included because there was a chance for them to show that in the initial hearing. Surrisi noted that with some effort, the county could present information about changes in the landscape and the economic feasibility since 2022.  He highlighted property tax spikes, the impact of the new property tax reform, tariffs, and the increased costs of everything.   

Commissioner Jesse Bohannon motioned to consider the extremely lengthy ordinance as discussed in the public meeting on Monday, on first reading with further discussion.

Commissioner Adam Faulstich said by the time the commissioners can do a second and third reading, the sewer board could easily be over the million-dollar mark with the way they have been spending, and this action might expedite some of their spending. He asked Surrisi if he’d received any communication from Mr. McFadden. The county attorney said he and the attorneys for the Regional Sewer Board had a phone call. They provided some history and mentioned that if there were any questions, he would be available to assist.

Bohannon said, “Because of the massive public outreach that we’ve had, and I think this ordinance is noncontroversial, I move that we adopt ordinance 2025-16 as presented. 

After Commissioner President Stan Klotz called for the vote on first reading Bohannon said he wanted to suspend the rules and adopt it on all three readings. At that point, Klotz said, “I think that could get us in trouble.”   

Commissioner Faulstich said they should allow the opposing viewpoints to voice their opinion.  He said the commissioner needed to follow due diligence and procedural matters.  At that point, Bohannon withdrew his motion.

The ordinance was adopted on first reading, and the county attorney was authorized to send the letter to Mr. McFadden expressing their concerns and asking him to speak during a commissioner’s meeting.

During the Public Comment portion of the meeting, following the commissioner’s action, Chris Nusbaum from Carson LLP in Fort Wayne, one of the attorneys for the sewer board, said, “I look forward to reviewing the letter to Mr. McFadden and the ordinance in its current draft.”  He presented case law to the board and their attorney, who had left the meeting.  He said, “I believe there is a misunderstanding with regard to the manner in which the sewer district was formed.  There are stated term limits for each board member. They do not serve at the pleasure of the appointing committees. They’re appointed for a stated term, and as such, they cannot be removed during their stated term.”  Their attorney said he looks forward to reviewing the ordinance and wanted to share the case law on their plans to remove one of their appointees. 

Commissioner Bohannon commented to the Regional Sewer Board attorney, “Obviously, we disagree with your legal position. I would hope you would advise your board members that they are accountable to the people.  They are accountable to this board, and it would be wise for them, if they wanted to remain on that board, to start listening to public input.”