Commissioners declare Tom McFadden's Regional Sewer Board seat vacant

The Marshall County Commissioners accepted an ordinance on the second and third readings Monday morning regarding vacancies on the Board of Trustees of the Marshall County Regional Sewer District.  They also unanimously passed a motion to declare Tom McFadden’s seat on the Regional Sewer District vacant.    

County Attorney Sean Surrisi detailed in the 31-page ordinance the petition the commissioners filed in May 2022 to IDEM to create the appointed Regional Sewer Board and how they proposed handling vacancies.  The ordinance states, “Upon a vacancy on the Board of Trustees, for any reason, the appointing authority for that Trustee shall be required to appoint a replacement Trustee to complete the term of the Trustee who vacated his office within 45 days of the notification of the vacancy.”   

Surrisi explained that the Indiana General Assembly adopted the Home Rule Act, which applies to all “units” of government.  Home Rule abrogated the traditional rule that local governments possessed only those powers expressly authorized by statute. The county attorney stated in the ordinance, “As a unit of government, Marshall County enjoys powers under the Home Rule Act through this ordinance, the Commissioner intends to exercise such authority to define the scope of vacancies of members of the Board of Trustees of the MCRSD.” 

In layman’s terms, Surrisi said, “Basically, the commissioners are doing two things.  First, they are just declaring what they meant when the commissioners adopted the petition that was sent to IDEM to form this board back in 2022, was that they meant to create a board that had members that are appointed and serve at the will of the appointing authority.”  The attorney said it affirms that is what they meant and that they can remove members at will for any reason or no reason at all.  He said the ordinance goes on to say if anyone had any doubts, not just relying on what they did in 2022, but that they will exercise their Home Rule Authority and adopt this ordinance on Monday, saying this is what we meant they’ve passed a law stating so.

Commissioner Jesse Bohannon motioned to suspend the rules and pass the ordinance on second and third readings.  His motion was seconded by Commissioner Adam Faulstich and all three, including Commissioner Stan Klotz approved the motion. 

Commissioner Bohannon then made a motion to declare the seat currently filled by Tom McFadden on the Regional Sewer Board vacant.

While Commissioner Faulstich seconded his motion, he then asked the county attorney what position does that motion puts the county in, such as potential legal battles and the need to fill the seat.       

Surrisi said it’s what happens when you have conflicting legal opinions. His suggestion was that if you declare it vacant and it passes, then the commissioners should work on declaring a new appointee in a future meeting. The attorney said it would be a “wait and see” how Mr. McFadden and the Regional Sewer Board react to your decision.  He went on to say, if the board continues to feel like the commissioners don't have the authority to declare the seat vacant, McFadden will try to continue in office.   The commissioner would be presented with the choice of going to court seeking a judicial declaration that the commissioners had the power and that the seat was vacated. Surrisi said this action could prompt the board to go to court themselves.  Thirdly, McFadden vacates the seat and respects our decision.

Bohannon said if both appointees show up for a meeting, the board will have to decide on who has authority.  

After many more comments from the commissioners, they finally unanimously voted to declare McFadden's seat vacant.