CHAPTER 2. TOWN LEGISLATIVE BODY AND EXECUTIVE
IC 36-5-2
Chapter 2. Town Legislative Body and Executive
IC 36-5-2-1
Application of chapter
Sec. 1. This chapter applies to all towns.
As added by Acts 1980, P.L.212, SEC.4.
IC 36-5-2-2
Town council; president
Sec. 2. The town council elected under IC 3-10-6 or IC 3-10-7 isthe town legislative body. The president of the town council selectedunder section 7 of this chapter is the town executive.
As added by Acts 1980, P.L.212, SEC.4. Amended by P.L.5-1986,SEC.55; P.L.8-1989, SEC.97.
IC 36-5-2-3
Term of office of members
Sec. 3. (a) Except as provided in subsection (b), (c), (d), (e), or (f),the term of office of a member of the legislative body is four (4)years, beginning at noon January 1 after the member's election andcontinuing until the member's successor is elected and qualified.
(b) The term of office of a member of the legislative bodyappointed to fill a vacancy resulting from an increase in the numberof town legislative body members under section 4.2 of this chapter:
(1) begins when the ordinance increasing the number oflegislative body members takes effect, or when the member isappointed under IC 3-13-9-4, if the appointment is made afterthe ordinance takes effect; and
(2) continues until noon January 1 following the next municipalelection scheduled under IC 3-10-6-5 or IC 3-10-7-6 and untilthe member's successor is elected and qualified.
(c) The term of office of a member of the legislative body electedunder IC 36-5-1-10.1 following the incorporation of the town:
(1) begins at noon November 30 following the election; and
(2) continues until noon January 1 following the next municipalelection scheduled under IC 3-10-6-5 or IC 3-10-7-6 and untilthe member's successor is elected and qualified.
(d) The term of office of a member of the legislative body subjectto IC 3-10-6-2.5(d)(1) is three (3) years, beginning at noon January1 after the member's election and continuing until the member'ssuccessor is elected and qualified.
(e) The term of office of a member of a legislative body subjectto an ordinance described by IC 3-10-6-2.6 is one (1) year, beginningat noon January 1 after the member's election and continuing untilthe member's successor is elected and qualified.
(f) The term of office of a member of a legislative body subject toan ordinance described by IC 3-10-7-2.7 is:
(1) three (3) years if the member is elected at the next municipalelection not conducted in a general election year; and (2) four (4) years for the successors of a member of a legislativebody described in subdivision (1);
beginning noon January 1 after election and continuing until asuccessor is elected and qualified.
As added by Acts 1980, P.L.212, SEC.4. Amended by P.L.3-1993,SEC.272; P.L.4-1996, SEC.103.
IC 36-5-2-4
Repealed
(Repealed by Acts 1980, P.L.2, SEC.20.)
IC 36-5-2-4.1
Town legislative body districts; standards; crossing precinctboundaries; appeal; when division to be made; towns of less than3,500 abolishing districts; ordinances; towns within consolidatedcity
Sec. 4.1. (a) The legislative body may, by ordinance, divide thetown into districts for the purpose of conducting elections of townofficers.
(b) A town legislative body district must comply with thefollowing standards:
(1) The district must be composed of contiguous territory,except for territory that is not contiguous to any other part ofthe town.
(2) The district must be reasonably compact.
(3) The district must contain, as nearly as is possible, equalpopulation.
(4) The district may not cross a census block boundary exceptwhen following a precinct boundary line or unless the ordinancespecifies that the census block has no population and is notlikely to ever have population.
(5) The district may not cross precinct lines, except as providedin subsection (c).
(c) The boundary of a town legislative body district establishedunder subsection (a) may cross a precinct boundary line if:
(1) the legislative body provides by ordinance under section 5of this chapter that all legislative body members are to beelected at large by the voters of the whole town; or
(2) the district would not otherwise contain, as nearly as ispossible, equal population.
(d) If any territory in the town is not included in one (1) of thedistricts established under this section, the territory is included in thedistrict that:
(1) is contiguous to that territory; and
(2) contains the least population of all districts contiguous tothat territory.
(e) If any territory in the town is included in more than one (1) ofthe districts established under this section, the territory is includedin the district that:
(1) is one (1) of the districts in which the territory is described
in the ordinance adopted under this section;
(2) is contiguous to that territory; and
(3) contains the least population of all districts contiguous tothat territory.
(f) The ordinance may be appealed in the manner prescribed byIC 34-13-6. If the town is located in two (2) or more counties, theappeal may be filed in the circuit or superior court of any of thosecounties.
(g) This subsection does not apply to a town with an ordinancedescribed by subsection (h). The division permitted by subsection (a)shall be made:
(1) during the second year after a year in which a federaldecennial census is conducted, subject to IC 3-11-1.5-32; and
(2) when required to assign annexed territory to a municipallegislative body district.
The division may also be made in any other year.
(h) This subsection applies to a town having a population of lessthan three thousand five hundred (3,500). The town legislative bodymay adopt an ordinance providing that:
(1) town legislative body districts are abolished; and
(2) all members of the legislative body are elected at large.
(i) An ordinance described by subsection (h):
(1) may not be adopted or repealed during a year in which amunicipal election is scheduled to be conducted in the townunder IC 3-10-6 or IC 3-10-7; and
(2) is effective upon passage.
(j) A copy of the ordinance establishing districts under thissection must be filed with the circuit court clerk of the county thatcontains the greatest population of the town not later than thirty (30)days after the ordinance is adopted.
As added by Acts 1980, P.L.2, SEC.17. Amended by P.L.13-1988,SEC.20; P.L.5-1989, SEC.115; P.L.7-1990, SEC.62; P.L.4-1991,SEC.146; P.L.3-1993, SEC.273; P.L.2-1995, SEC.130; P.L.3-1997,SEC.464; P.L.1-1998, SEC.205; P.L.230-2005, SEC.88.
IC 36-5-2-4.2
Change in number of members in legislative body; resolution;implementation
Sec. 4.2. (a) This section applies to the alteration of the numberof members of a legislative body.
(b) The legislative body may adopt a resolution to submit a publicquestion on the number of legislative body members to the voters ofthe town. The resolution must state the following:
(1) The proposed number of legislative body members, whichmust be at least three (3) and not more than seven (7).
(2) The date of the general, municipal, or special election atwhich the public question will appear on the ballot.
(3) That the following question will be placed on the ballot inthe form provided by IC 3-10-9-4:
"Shall the number of town council members be increased (or
decreased, if applicable) from ___________ (insert thecurrent number of members provided for) to _________(insert the number of members proposed in the resolution)?".
(c) IC 3 applies to an election conducted under subsection (b). Ifthe county election board will conduct the election at which thepublic question will be submitted, the question must be certified tothe board under IC 3-10-9-3.
(d) If a majority of the votes cast on the question under subsection(b) are in the negative, the legislative body may not adopt aresolution under subsection (b) for at least one (1) year following thedate the prior resolution was adopted.
(e) If a majority of votes cast on the question under subsection (b)are in the affirmative, the legislative body shall adopt an ordinanceat its next regular meeting following the election altering the numberof legislative body members to the number specified in the publicquestion. The legislative body may also alter existing districts andestablish new districts in the manner prescribed by IC 36-5-1-10.1.An ordinance adopted under this subsection becomes effectiveJanuary 1 following its adoption.
(f) If the number of legislative body members is increased, thelegislative body shall fill any resulting vacancy under IC 3-13-9-4.The legislative body may fill the vacancy before the ordinancedescribed in subsection (e) takes effect. However, a town legislativebody member appointed under this subsection does not assume officeuntil the beginning of the term specified in section 3 of this chapter.
As added by P.L.11-1988, SEC.12. Amended by P.L.8-1989, SEC.98;P.L.1-1990, SEC.359; P.L.3-1993, SEC.274.
IC 36-5-2-4.5
Adoption of ordinances; elections
Sec. 4.5. (a) This section applies to a town if both of the followingapply:
(1) The town has a population of more than ten thousand(10,000).
(2) The town legislative body adopts an ordinance adopting theprovisions of this section. A town may not adopt an ordinanceunder this section during a year in which municipal electionsare held under IC 3-10-6-5.
(b) A town legislative body has the following members:
(1) Five (5) members, each elected by the voters of a district.The districts are established by ordinance by the townlegislative body as provided in this chapter.
(2) Two (2) members elected at large by all the voters of thetown.
(c) An ordinance adopted under this section must provide for thefollowing:
(1) Four (4) members of the legislative body are elected duringa year that municipal elections are held under IC 3-10-6-5.
(2) Three (3) members of the legislative body are elected either:
(A) during the year before the year described in subdivision
(1); or
(B) during the year after the year described in subdivision(1).
The year for elections under this subdivision must be chosen sothat during the elections held for the town legislative bodyunder subdivision (4), a member of the town legislative bodydoes not serve a term of more than four (4) years.
(3) The members of the legislative body elected at large maynot be elected at the same time.
(4) At the first two (2) elections after the ordinance is adopted,members are elected to serve the following terms:
(A) Two (2) members elected under subdivision (1) areelected to a four (4) year term and two (2) members electedunder subdivision (1) are elected to a three (3) year term.
(B) Two (2) members elected under subdivision (2) areelected to a four (4) year term and one (1) member electedunder subdivision (2) is elected to a three (3) year term.
The ordinance must provide a random procedure to determinewhich members serve four (4) year terms and which membersserve three (3) year terms.
(5) A member of the town council elected after the electionsdescribed in subdivision (4) serves a term of four (4) years.
(6) The term of office of a member begins at noon January 1after the member's election.
(d) An ordinance adopted under this section may provide thatbefore the first election after adoption of the ordinance, members ofthe town legislative body added to the legislative body by theordinance may be appointed to the legislative body by a vote of thecurrent members of the legislative body.
(e) After the first two (2) elections held as described in subsection(c)(4), the town legislative body may adopt an ordinance to do thefollowing:
(1) Divide the town into seven (7) districts.
(2) Provide that the members elected at large are each electedfrom a district.
An ordinance adopted under this subsection must comply with thischapter in establishing the districts and provide details to provide atransition from electing two (2) members at large to electing allmembers from districts.
(f) Subject to this section, members of the town legislative bodyare elected as provided in IC 3-10-6-4.5.
As added by P.L.38-1999, SEC.72. Amended by P.L.14-2000,SEC.81.
IC 36-5-2-5
Representation by district, at large, or both
Sec. 5. (a) The legislative body has:
(1) one (1) member for each district established under:
(A) IC 36-5-1-10.1; or
(B) section 4.1 or 4.2 of this chapter; or (2) the number of members provided for when the town adoptedan ordinance under section 4.1 of this chapter abolishing townlegislative body districts.
(b) The legislative body shall provide by ordinance that itsmembers:
(1) are to be elected by the voters of the district in which theyreside;
(2) are to be elected at large by the voters of the whole town; or
(3) are to be elected both by districts and at-large.
(c) If a town legislative body adopts an ordinance under thissection providing that its members are to be elected both by districtsand at-large, the ordinance must:
(1) specify which seats on the legislative body are elected bythe voters of a district and which are elected by the voters of thewhole town; and
(2) provide that the ordinance is effective on January 1following its adoption.
As added by Acts 1980, P.L.212, SEC.4. Amended by Acts 1982,P.L.33, SEC.27; P.L.11-1988, SEC.13; P.L.7-1990, SEC.63.
IC 36-5-2-6
Residency requirement
Sec. 6. (a) A member of the legislative body must reside within:
(1) the town as provided in Article 6, Section 6 of theConstitution of the State of Indiana; and
(2) the district from which the member was elected, ifapplicable.
(b) A member of the legislative body who is elected by the votersof a district forfeits office if the member ceases to be a resident ofthe district.
(c) A member of the legislative body who is elected by the votersof the entire town but is elected or selected as a candidate from adistrict forfeits office if the member ceases to be a resident of thedistrict.
(d) An at-large member of the legislative body forfeits office ifthe member ceases to be a resident of the town.
As added by Acts 1980, P.L.212, SEC.4. Amended by P.L.3-1987,SEC.561; P.L.3-1993, SEC.275.
IC 36-5-2-6.5
Circumstances creating a vacancy on the town council
Sec. 6.5. A vacancy on the legislative body is created wheneverany of the following circumstances occur:
(1) A member resigns.
(2) A member dies.
(3) A member ceases to be a resident of the town or district asset forth in section 6 of this chapter.
As added by P.L.174-2002, SEC.5.
IC 36-5-2-7 President of legislative body; selection; term
Sec. 7. The legislative body shall select one (1) of its members tobe its president for a definite term, which may not exceed his term ofoffice as a member of the legislative body.
As added by Acts 1980, P.L.212, SEC.4.
IC 36-5-2-8
Town clerk-treasurer as clerk; ex officio member for casting tiebreaking vote
Sec. 8. (a) The town clerk-treasurer is the clerk of the legislativebody.
(b) The clerk-treasurer is an ex officio member for the purpose ofcasting the deciding vote to break a tie.
As added by Acts 1980, P.L.212, SEC.4. Amended by P.L.34-1999,SEC.3.
IC 36-5-2-9
Powers of legislative body
Sec. 9. The legislative body may:
(1) adopt ordinances and resolutions for the performance offunctions of the town;
(2) purchase, hold, and convey any interest in property, for theuse of the town; and
(3) adopt and use a common seal.
As added by Acts 1980, P.L.212, SEC.4.
IC 36-5-2-9.2
Quorum
Sec. 9.2. A majority of all the elected members of the legislativebody constitutes a quorum.
As added by Acts 1980, P.L.73, SEC.14.
IC 36-5-2-9.4
Majority vote; two-thirds vote
Sec. 9.4. (a) A requirement that an ordinance, resolution, or otheraction of the legislative body be passed by a majority vote means atleast a majority vote of all the elected members.
(b) A requirement that an ordinance, resolution, or other action ofthe legislative body be passed by a two-thirds (2/3) vote means atleast a two-thirds (2/3) vote of all the elected members.
As added by Acts 1980, P.L.73, SEC.15.
IC 36-5-2-9.6
Majority vote to pass ordinance
Sec. 9.6. A majority vote of the legislative body is required topass an ordinance, unless a greater vote is required by statute.
As added by Acts 1980, P.L.73, SEC.16.
IC 36-5-2-9.8
Two-thirds vote with unanimous consent of members present Sec. 9.8. (a) A two-thirds (2/3) vote of all the elected members,after unanimous consent of the members present to consider theordinance, is required to pass an ordinance of the legislative body onthe same day or at the same meeting at which it is introduced.
(b) Subsection (a) does not apply to the following:
(1) A zoning ordinance or amendment to a zoning ordinanceadopted under IC 36-7.
(2) An ordinance to increase the number of town legislativebody members adopted under section 4.2 of this chapter, unlessthe ordinance also establishes new legislative body districts.
As added by Acts 1980, P.L.73, SEC.17. Amended by Acts 1982,P.L.33, SEC.28; P.L.335-1985, SEC.37; P.L.3-1993, SEC.276.
IC 36-5-2-10
Ordinance, order, or resolution adoption; requirements
Sec. 10. (a) An ordinance, order, or resolution passed by thelegislative body is considered adopted when it is signed by theexecutive. If required by statute, an adopted ordinance, order, orresolution must be promulgated or published before it takes effect.
(b) An ordinance prescribing a penalty for a violation must, beforeit takes effect, be published in the manner prescribed by IC 5-3-1,unless:
(1) it is published under IC 36-1-5; or
(2) it declares an emergency requiring its immediateeffectiveness and is posted in:
(A) one (1) public place in each district in the town; or
(B) a number of public places in the town equal to thenumber of town legislative body members, if the town hasabolished legislative body districts under section 4.1 of thischapter.
(c) This section does not apply to a zoning ordinance oramendment to a zoning ordinance, or a resolution approving acomprehensive plan, that is adopted under IC 36-7.
(d) An ordinance increasing a building permit fee on newdevelopment must:
(1) be published:
(A) one (1) time in accordance with IC 5-3-1; and
(B) not later than thirty (30) days after the ordinance isadopted by the legislative body in accordance with IC 5-3-1;and
(2) delay the implementation of the fee increase for ninety (90)days after the date the ordinance is published under subdivision(1).
(e) The legislative body shall:
(1) subject to subsection (f), give written notice to thedepartment of environmental management not later than sixty(60) days before amendment or repeal of an environmentalrestrictive ordinance; and
(2) give written notice to the department of environmentalmanagement not later than thirty (30) days after passage,
amendment, or repeal of an environmental restrictive ordinance.
(f) Upon written request by the legislative body, the departmentof environmental management may waive the notice requirement ofsubsection (e)(1).
(g) An environmental restrictive ordinance passed or amendedafter 2009 by the legislative body must state the notice requirementsof subsection (e).
(h) The failure of an environmental restrictive ordinance tocomply with subsection (g) does not void the ordinance.
As added by Acts 1980, P.L.212, SEC.4. Amended by Acts 1980,P.L.73, SEC.18; P.L.335-1985, SEC.38; P.L.7-1990, SEC.64;P.L.100-2003, SEC.3; P.L.78-2009, SEC.26.
IC 36-5-2-10.2
Recording of adopted ordinance; presumptive evidence
Sec. 10.2. Within a reasonable time after an ordinance of thelegislative body is adopted, the clerk-treasurer shall record it in abook kept for that purpose. The record must include:
(1) the signature of the executive;
(2) the attestation of the clerk-treasurer; and
(3) the date of each recorded item.
The record or a certified copy of it constitutes presumptive evidenceof the adoption of the ordinance.
As added by Acts 1980, P.L.73, SEC.19.
IC 36-5-2-11
Bond issuance, purpose, payments, and procedure; short termloans
Sec. 11. (a) The legislative body may issue bonds for the purposeof procuring money to be used in the exercise of the powers of thetown and for the payment of town debts. However, a town may notissue bonds to procure money to pay current expenses.
(b) Bonds issued under this section are payable in the amountsand at the times determined by the legislative body.
(c) Bonds issued under this section are subject to the provisionsof IC 5-1 and IC 6-1.1-20 relating to the following:
(1) The filing of a petition requesting the issuance of bonds andgiving notice of the petition.
(2) The giving of notice of a hearing on the appropriation of theproceeds of bonds.
(3) The right of taxpayers to appear and be heard on theproposed appropriation.
(4) The approval of the appropriation by the department of localgovernment finance.
(5) The right of:
(A) taxpayers and voters to remonstrate against the issuanceof bonds in the case of a proposed bond issue described byIC 6-1.1-20-3.1(a); or
(B) voters to vote on the issuance of bonds in the case of aproposed bond issue described by IC 6-1.1-20-3.5(a). (6) The sale of bonds at public sale for not less than their parvalue.
(d) The legislative body may, by ordinance, make loans of moneyfor not more than five (5) years and issue notes for the purpose ofrefunding those loans. The loans may be made only for the purposeof procuring money to be used in the exercise of the powers of thetown, and the total amount of outstanding loans under this subsectionmay not exceed five percent (5%) of the town's total tax levy in thecurrent year (excluding amounts levied to pay debt service and leaserentals). Loans under this subsection shall be made as follows:
(1) The ordinance authorizing the loans must pledge to theirpayment a sufficient amount of tax revenues over the ensuingfive (5) years to provide for refunding the loans.
(2) The loans must be evidenced by notes of the town in termsdesignating the nature of the consideration, the time and placepayable, and the revenues out of which they will be payable.
(3) The interest accruing on the notes to the date of maturitymay be added to and included in their face value or be madepayable periodically, as provided in the ordinance.
Notes issued under this subsection are not bonded indebtedness forpurposes of IC 6-1.1-18.5.
As added by Acts 1980, P.L.212, SEC.4. Amended by P.L.37-1988,SEC.24; P.L.90-2002, SEC.471; P.L.219-2007, SEC.116;P.L.146-2008, SEC.708.
IC 36-5-2-12
Loans and notes; procedures; actions to contest validity
Sec. 12. (a) The legislative body may, by ordinance, make loansand issue notes for the purpose of refunding those loans inanticipation of revenues of the town that are anticipated to be leviedand collected during the term of the loans. The term of a loan madeunder this subsection may not be more than five (5) years. Loansunder this section shall be made in the same manner as loans madeunder section 11(b) and 11(c) of this chapter, except that:
(1) the ordinance authorizing the loans must appropriate andpledge to the payment of the loans a sufficient amount of therevenues in anticipation of which the loans are issued and outof which the loans are payable; and
(2) the loans must be evidenced by time warrants of the town interms designating the nature of the consideration, the time andplace payable, and the revenues in anticipation of which theloans are issued and out of which the loans are payable.
(b) An action to contest the validity of a loan made under thissection must be brought within fifteen (15) days from the day onwhich the ordinance is adopted.
As added by P.L.35-1990, SEC.45. Amended by P.L.40-1996,SEC.11.
IC 36-5-2-13
Removal of town employee Sec. 13. The town executive must have the approval of a majorityof the town council before the executive may discharge, reduce ingrade under IC 36-8-3-4, or remove a town employee.
As added by P.L.34-1999, SEC.4.