State v. Poindexter

• Decision Date: 22 December 1987
• Docket Number: No. 91A02-8612-CV-00424,91A02-8612-CV-00424
• Citation: 517 N.E.2d 88
• Parties: STATE of Indiana, Appellant (Plaintiff), v. Barbara A. POINDEXTER, Appellee (Defendant).
• Court: Indiana Appellate Court

Page 88

517 N.E.2d 88

STATE of Indiana, Appellant (Plaintiff), v. Barbara A. POINDEXTER, Appellee (Defendant).

No. 91A02-8612-CV-00424.

Court of Appeals of Indiana Second District.

Dec. 22, 1987.

Linley E. Pearson, Atty. Gen., Thomas D. Strodtman, Steven E. Fivel, Deputy Attys. Gen., Office of Atty. Gen., Indianapolis, for appellant (plaintiff).

E. Kent Moore, Donald Clementson-Mohr, Cooke, Bache, Moore, Laszynski and Yeager, Lafayette, for appellee (defendant).

BUCHANAN, Judge.

CASE SUMMARY

Plaintiff-appellant State of Indiana (the State) appeals the trial court's judgment in favor of Barbara A. Poindexter (Poindexter), the clerk-treasurer for the town of Wolcott, Indiana, in an action brought by the Attorney General for the recovery of misappropriated public funds, the State claiming the trial court erred in not holding Poindexter personally liable for repayment of additional compensation she paid to herself and for repayment of tax penalties and interest imposed upon the town which were paid from public funds, and that she is also personally liable in treble damages for alleged utility cash fund deficiencies.

We reverse in part and affirm in part.

FACTS

The facts most favorable to the judgment reveal that Poindexter was the clerk-treasurer of Wolcott, Indiana from December 4, 1979 through June 30, 1982. A new Town Board was in office during her tenure, which Board had been recently elected and received no cooperation from the previous Town Board.

When Poindexter began her term, the State Board of Accounts (State Board) was under a duty to audit the clerk-treasurer's office at least once a year. ¹ Shortly after taking office, Poindexter communicated with the State Board and expressed concern regarding her ability to properly maintain Wolcott's financial records because she had never held public office. Although Poindexter requested an audit, the State Board informed her that it did not have the time to conduct an audit, that she should do the best that she could, and that she should follow her predecessor's procedures. In January 1980, the Town Board president requested the State Board's assistance but he was also told that there was no time to perform an audit.

While in office, Poindexter followed the lead of her predecessor and regularly made adjustments to sewage bills after the customers complained that their monthly bill inaccurately reflected their actual sewage use. Additionally, the Town Board permitted Poindexter to supplement her $3,000 per year salary with additional compensation which was also consistent with past practice. The Town Board also authorized vacation pay and Christmas bonuses for Poindexter and permitted her to pay tax penalties and interest charges following her failure to pay Wolcott's federal withholding taxes as they became due. After Poindexter received notice of the penalties, the Town Board authorized her to pay those delinquent charges from public funds.

In December 1982, the State Board audited the clerk-treasurer's office and the results reflected a deficiency of $11,589.80. ² Poindexter was charged with official misconduct, ³ a class A misdemeanor, and she entered a guilty plea on March 9, 1984, for failing to properly maintain the records in the clerk-treasurer's office.

The State then initiated the present action against Poindexter pursuant to IC 5-11-5-1 ⁴ for the recovery of the amount of the deficiency. Following a trial by court, judgment was entered for Poindexter and the trial court issued the following order:

"ORDER

And now the Court, having heard the evidence and being duly advised in the premises, now finds as follows:

1. That Defendant, Barbara Poindexter, began her duties as Clerk-Treasurer of the Town of Wolcott, Indiana, December 4, 1979;

2. That a new Town Board was installed beginning January 1, 1980;

3. That shortly after taking office, Defendant requested help from the State Board of Accounts and was told to 'continue as your predecessor did;'

4. That in January, 1980, the President of the Town Board requested assistance from the State Board of Accounts, to no avail;

5. That Defendant did carry out her duties as Clerk-Treasurer in the same manner and fashion as her predecessor;

6. That there is no evidence or assertion by the State that Defendant received any money or funds alleged to be missing from the Water and Sewage Funds;

7. That the payment for extra help was made in the same manner as her predecessor;

8. That the fact that Defendant was not apprised of her statutory duties as prescribed by law until two and one-half (2 1/2) years after commencing office, is the primary factor in her being unable to account for the funds the State alleges to be missing;

9. That there is no showing of fraud, malice or wilfull [sic] misconduct on the part of Defendant;

10. That a claim was filed and approved by the Town Board for all funds alleged to have been misappropriated;

11. That the Court finds the law is with the Defendant, and that Plaintiff take nothing by its Complaint.

ALL OF WHICH IS ORDERED, ADJUDGED, AND DECREED by the Court this 7th day of August, 1986.

/s/ Karl Overbeck

Karl Overbeck, Judge

White Circuit Court"

Record at 149-50.

ISSUES

The only issues before us are: ⁵

1. Did the trial court properly conclude that Poindexter was not liable for repayment of additional salary, Christmas bonuses, and vacation pay that she paid herself while in office?

2. Is Poindexter personally liable for the repayment of tax penalties and interest charges imposed upon the town that she paid from public funds?

3. Is Poindexter personally liable for alleged public fund deficiencies due to customer utility bill adjustments she made while in office?

4. Did Poindexter's guilty plea to official misconduct for improperly maintaining Wolcott's official record books render her liable for treble damages?

DECISION

ISSUE ONE--Did the trial court properly conclude that Poindexter was not liable for repayment of additional salary, Christmas bonuses, and vacation pay that she paid herself while in office?

PARTIES' CONTENTIONS--The State maintains that Poindexter is liable for the repayment of $4,822.58 in additional salary, vacation pay and Christmas bonuses she paid herself while in office because the Town Board failed to pass an ordinance authorizing her to receive that compensation.

Poindexter responds that she is not under a duty to repay the additional compensation because the Town Board was unaware of the ordinance requirement and it expressly authorized the payments that she paid to herself from Wolcott's public fund.

CONCLUSION--Poindexter is liable for the repayment of additional salary, vacation pay, and Christmas bonuses that she paid herself while in office.

This was a bench trial in which the judge made findings of fact and conclusions of law, so we will not set aside the findings or judgment unless clearly erroneous. Craig v. ERA Mark Five Realtors (1987), Ind.App., 509 N.E.2d 1144; T.R. 52(A). We will disturb the trial court's findings only if the record is devoid of facts or inferences supporting those findings. Miller v. Indiana State Highway Dep't. (1987), Ind.App., 507 N.E.2d 1009; Mishawaka Brass Mfg. Inc. v. Milwaukee Valve Co. (1983), Ind.App., 444 N.E.2d 855, trans. denied. Parties asserting that a judgment is contrary to law must establish that the evidence is without conflict and leads to but one conclusion and the trier of fact reached the opposite conclusion. Miller, supra; Indiana-Kentucky Elec. Corp. v. Green (1985), Ind.App., 476 N.E.2d 141, trans. denied.

With these propositions in mind we turn to the pertinent statutes. Compensation for a clerk-treasurer is determined by ordinance. IC 36-5-3-2(a) (Supp.1987) provides that "[t]he town legislative body shall, by ordinance, fix the compensation of its own members, the town clerk-treasurer, and the town marshal." (Emphasis supplied). In conjunction therewith is IC 5-10-6-1 (Supp.1987) which reads in part: "[e]mployees of the political subdivisions of the state may be granted a vacation with pay, sick leave, paid holidays, and other similar benefits by ordinance of the common council of a city or by the controlling board of a municipally owned utility, board of county commissioners of a county, [or] town board of a town...." (Emphasis supplied).

It is undisputed that the Town Board failed to enact an ordinance authorizing Poindexter to be paid additional compensation. In fact, the Town Board was unaware of any ordinance requirement. Record at 786. Town Board member David Hall testified that:

"I find out now that our attorney should have informed us of a lot of this, but then that didn't happen so we basically went ahead with just what we were told, to proceed just like it was before. And then whenever the State Board of Accounts came in, why then we would get it all straightened out. So that's the way we proceeded. And we felt like that she was underpaid so we give [sic] her extra salary. The Christmas bonuses and this type of stuff, which again I don't consider a bonus, I feel like it was a gift, we done [sic] that on our own. I'm sure that all the Board Members will agree that it was all agreed upon. We all signed the claim forms and that type of stuff."

Record at 786-87 (emphasis supplied). Although the Town Board authorized Poindexter to pay herself additional compensation, IC 36-5-3-2(a) and 5-10-6-1 were violated as no ordinance was ever enacted.

But, Poindexter says a public official will not always be personally liable for improperly authorized disbursements of public funds. In State v. Newbern (1979), Ind.App., 398 N.E.2d 683, the Anderson, Indiana Common Council approved the city controller's payment of health insurance premiums for the city's retired policemen and firemen. The Attorney General sued Newbern personally for the recovery of those premiums when it was determined that the purchase of health insurance for retired city employees...