(MITCHELL) - Mitchell's Board of Public Works and Safety voted to have Attorney Chris Burton represent the city when it seeks a declaratory judgment to settle residency concerns over Everret Ferrel's council seat.
The motion would ask a judge to determine if Ferrel was a legal member of the council during the 3-year debate that started after officials learned Ferrell did not live in the city limits. His property was later annexed into the city.
The decision was made after a letter surfaced drafted by city Attorney Byron Steele, giving legal advice to Ferrel over the councilman's annexation issue when the debate began.
Mayor Gary Pruett says it would be a conflict of interest for Steele to present the case. Pruett says he doesn't know when Burton will file the judgment, but expects it will be soon.
Ferrel was elected to the city council in 2003, served four years and was re-elected in 2007 and began serving his second four-year term when he found out that his property was never located within the city limits.
Upon learning of the issue, former Mayor Dan Terrell declared Ferrel's seat vacant, citing Indiana code that states a council member must forfeit the seat if he "ceases to be a resident of the district."
After the Jan. 12 meeting, a letter surfaced dated Feb. 22, 2008. It was addressed to Ferrel and signed by Steele.
The letter discusses whether or not Ferrel's property sits inside the city limits with Steele writing that he cannot find mention of Ferrel's property in annexation ordinances, but pointed the Mitchell man to several resources that may help him settle the issue.
In it, Steele wrote, "I had another thought, although I don't know how likely it would be to happen. It would take some extraordinary cooperation on the part of several parties.
"First we would need for Jerry Hancock and Chris Burton to agree that a mistake was made in Ordinance No. 8-1979 (copy enclosed) and that such description should have included the land as shown on the Gregory map.
"Then it would take the cooperation of the new city council to amend the ordinance 'nunc pro tunc.' Of course, this would also take the cooperation of the Mitchell city attorney.
"Nunc pro tunc means 'now as of then' and if it was amended nunc pro tunc it would mean the amendment goes back to the original passage of such ordinance, which would have been in November of 1979. That nunc pro tunc ordinance would have to be recorded."
The council passed the "nunc pro tunc" ordinance in January 2009, against the recommendations of then city attorney Bill Mullis. After a suit was filed, a special judge said the "nunc pro tunc" ordinance was invalid because he said he didn't believe a mistake was made in the 1979 ordinance.
The judge was never asked to rule on the legality of Ferrel's service as a councilman, only the ordinance. Later, the council legally annexed Ferrel's property into the city limits.
After the current suit is filed, if the judge finds Ferrel was legally serving, he likely will receive back pay, as it was withheld by the city while the matter was disputed. Council members in Mitchell receive $4,900 per year.
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