Case Summary and Issue
Walter Thompson sued Mark Hays, seeking a declaratory judgment that Hays was holding two lucrative offices and also seeking an order that Hays reimburse the county for the compensation he received for one of the offices during the time of dual office-holding, plus treble damages. Hays filed a motion to dismiss, which was
Facts and Procedural History
For some time prior to January 1, 2003, Hays was a Scott County Sheriff's Deputy. In the November 2002 general election, Hays was elected a Scott County Commissioner for District 3 and took office on January 1, 2003. He also continued to work as a deputy sheriff.
On March 22, 2006, Thompson, a resident of and property-holder in Scott County, filed a complaint against Hays alleging that in his positions as a Scott County Commissioner and Sheriff's Deputy, Hays was holding two lucrative offices.
Hays filed an answer, a counterclaim, and a motion to dismiss. In his motion to dismiss, Hays alleged that Thompson's complaint failed to state a claim on which relief could be granted. After a hearing, the trial court entered the following order:
Id. at 4. Thompson then initiated this appeal.
Discussion and Decision
I. Standard of Review
The standard of review of a trial court's decision on a motion to dismiss for failure to state a claim is de novo. Sims v. Beamer, 757 N.E.2d 1021, 1024 (Ind.Ct. App.2001). On appeal, we do not defer to the trial court's decision because deciding a motion to dismiss based upon failure to state a claim involves a pure question of law. Id. That is, the grant or denial of a motion to dismiss turns solely on the legal sufficiency of the claim and does not require determinations of fact. Id.
Because an Indiana Trial Rule 12(B)(6) motion to dismiss tests the legal sufficiency of a claim, and not the facts supporting it, we must view the allegations of the complaint and reasonable inferences therefrom in the light most favorable to the non-moving party and determine whether the complaint states any facts upon which the trial court could have granted relief. Weiss v. Indiana Parole
II. Two Lucrative Offices
Article II, section 9 of the Indiana Constitution provides, in part, that "no person may hold more than one lucrative office at the same time, except as expressly permitted in this Constitution." Thompson's complaint alleged that by being both a deputy sheriff and a county commissioner, Hays was holding two lucrative offices at the same time in violation of this provision.
A "lucrative office" is defined as "an office to which there is attached a compensation for services rendered." McCullough v. McCullough, 705 N.E.2d 190, 196 (Ind.Ct.App.1999) (quoting Book v. State Office Bldg. Comm., 238 Ind. 120, 149 N.E.2d 273, 289 (1958)). We have defined an office, as that term is used by Article II, section 9, as "a position for which the duties include the performance of some sovereign power for the public's benefit, are continuing, and are created by law instead of contract." Gaskin v. Beier, 622 N.E.2d 524, 528 (Ind.Ct.App.1993), trans. denied (quoting Mosby v. Bd. of Comm'rs of Vanderburgh County, 134 Ind.App. 175, 178-79, 186 N.E.2d 18, 20-21 (1962)). "An officer is also distinguished by his power of supervision and control and by his liability to be called to account as a public offender in case of malfeasance in office." Id.
The parties agree that county commissioner is a lucrative office. See Appellant's Brief at 6 ("The law in Indiana is longstanding that the office of County Commissioner is a lucrative office. . . ."); Appellee's Brief at 4 ("We are in agreement with Thompson in the fact that the office of County Commissioner is a lucrative office."). They part ways, however, on the issue of whether deputy sheriff is also a lucrative office.
In granting Hays' motion to dismiss, the trial court cited Gaskin v. Beier, in which this court considered whether a person who was both a deputy town marshal and a member of the town board of trustees was occupying two lucrative offices. Citing case law holding that city police officers are not "officers," but employees whose relationship with the city is strictly contractual, we concluded that the position and duties of a deputy town marshal are similar to those of a city police officer and therefore, a deputy town marshal is an employee and the defendant could hold both positions.
Hays contends that Gaskin is directly on point and supports the trial court's decision. Thompson contends that because Gaskin dealt with town/city government and this case deals with county government, Gaskin does not decide the outcome of this case. Given the factual differences between this case and Gaskin, we agree with Thompson that Gaskin is not controlling by itself.
Thompson contends that Rush v. Carter, 468 N.E.2d 236 (Ind.Ct.App.1984), trans.
Although neither Gaskin nor Rush are dispositive of the specific issue presented by this case, both are instructive. Based in part upon the reasoning in Gaskin and in part upon the statutes referenced in Rush, we conclude that a deputy sheriff is an employee rather than a public officer.
Our decision that deputy sheriffs are employees is consistent with both existing case law and legislative intent.
For the reasons stated herein, we hold that a sheriff's deputy is not the holder of
BAKER, C.J., and BAILEY, J., concur.
Murray v. Hamilton County Sheriff's Dep't, 690 N.E.2d 335, 341 (Ind.Ct.App.1997) (citing Ind.Code § 36-8-10-10). A deputy is on probation for a period of one year after appointment. Ind.Code § 36-8-10-10(b), and thereafter can only be disciplined or dismissed in accordance with the procedures described in Indiana Code section 36-8-10-11.