When the caucus to select a new Johnson County prosecutor was delayed last week, local Republican Party officials said that none of the candidates were eligible because none had filed a state-required declaration of candidacy form by the deadline.
The party leaders discovered that the form was necessary after further review of Indiana law in the final two days before the caucus, after the deadline to file all proper paperwork to be a candidate had passed, party chairwoman Beth Boyce told the candidates, the public and the more than 100 Republican precinct committee members who had gathered to vote on the new prosecutor.
Boyce did not disclose to the public and Republican precinct committee members that candidate James Ackermann had filed the form with her — not once, but twice. Boyce announced that none of them had filed it by the deadline. Boyce did not mean to misspeak, and should have indicated that the form was not filled out and signed by Ackermann after the vacancy occurred, which is why he was disqualified, county Republican Party attorney Bill Barrett said.
Boyce has always thought that the requirement for the declaration of candidacy could be met with a simple letter to her, she said after the caucus. Of the six candidates, Ackermann was the only one who filed both forms that the law calls for by the 72-hour deadline.
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Ackermann said he was told after the public announcement on Thursday night that he was disqualified because he filled out and signed the form before former prosecutor Brad Cooper was removed from office, even though the date the form is filled out and signed is not outlined in state law and flies in the face of the way the party leaders have conducted caucuses for years.
If Ackermann’s form had been accepted, he would have been the only eligible candidate for the caucus. State law says that the precinct committee members select the winner by majority vote of those casting a vote for a candidate.
The decision to disqualify Ackermann due to the date on his form was necessary because having a prosecutor with a taint of ineligibility is untenable, Barrett said.
"If one of those decisions errs on the side of caution, that’s far better than having a prosecutor whose legitimacy is subject to question," Barrett said.
Citing the importance of the job of prosecutor, Barrett said the party "would rather have a mistake in process than a mistake in outcome.” He spoke for Boyce in standing by the decision to disqualify Ackermann.
But an error in process would cause an error in the outcome of the caucus, Ackermann said.
His hope is that the party would re-evaluate its decision, based on the law, to disqualify him from the initial caucus. The party could reconsider its decision and fix its error, he said. Because no state law says that the form can’t be signed before the vacancy officially exists, he said the party leaders, through Barrett, appeared to be inserting their own conditions and terms in the requirement. His candidacy paperwork should be evaluated based only on the requirements outlined in the law, not additional requirements inserted by the party’s attorney, he said.
A review of public records from past caucuses shows that none of the candidates placed in local office by a caucus in recent years have complied with the state law that the party is now citing as a reason to disqualify prosecutor candidates.
Boyce said Tuesday the party realized when researching the prosecutor caucus issues that it had not been following the process correctly for many years.
"As chairman of this party, I take ownership of that mistake, and we move forward from that point," she said.
She said she had been continuing a practice that she thought was appropriate. She became party chairwoman in 2015.
"We take very seriously the magnitude of these decisions and the procedures that we oversee," Boyce said Tuesday. "That is our biggest priority, to fix it and move on, and when we hold this caucus next week to make sure there are no questions."
Ackermann said he was not implying any wrongdoing, malicious or intentional efforts to disqualify him by any of the party leaders, he wants to be involved in the county Republican Party and is not critical of it, but did not understand what compelled them to reject his candidacy form when, on its face, it appears to be valid.
He researched the requirements, worked in advance, followed the rules outlined in the law and resubmitted his candidacy declaration form, he said. If other candidates did not, he wonders why they would be rewarded with a do-over.
Another caucus is scheduled for 6:30 p.m. Aug. 29. Until then, acting prosecutor Joe Villanueva is running the office.
Ackermann said he was told by Boyce following the caucus that if he had submitted a new candidacy declaration form dated after the vacancy occurred, he would have been sworn in as prosecutor that night.
He wants to do the right thing, and believes Boyce had good intentions, but he was the only candidate with the correct paperwork filed by the deadline, he said.
“It’s very important to me that the county is healed, rules are followed and fair play is followed,” Ackermann said.
Cooper was removed from office on July 17 when he was sentenced on felony convictions. Six candidates sought to complete the remainder of his term through the end of 2022. They are: Ackermann, Carrie Miles, Beckie St. John, Lori Torres, Mike Vertesch and Joe Villanueva.
State legislators give the authority to replace an office holder to the political parties, and the Johnson County Republican Party leaders are volunteers who are charged with preserving the integrity of the offices, Barrett said.
"She apologized for the delay," Barrett said of Boyce. "There you go. There’s nothing more to say. This was the right decision, this was the decision compelled by the law, and it had to be done."
He said Boyce explained the decision, but that she should have said that Ackermann had not executed the form by the deadline. Ackermann submitted the form on time, but he signed it before the vacancy existed.
"She’s not a lawyer, we weren’t in a court proceeding," Barrett said. "I’ve given you the reason it was rejected."
The party’s history of caucuses
According to public records available from caucuses conducted since 2017, the party has been using the candidacy declaration form during dozens of caucuses in recent years, although none of the paperwork is in compliance with state law.
The form was not recently discovered by party leaders when researching the legal issues regarding candidate eligibility in the final hours before the vote.
The Johnson County Republican Party central committee, led by Boyce, did not raise the issue of whether candidates had filed the declaration of candidacy form until faced with a lawsuit by Miles, one of two candidates who had been told after the filing deadline that she had not met the requirements to be a candidate because she did not file a statement of economic interest, which is also a requirement of the law for prosecutor candidates.
At issue is the state law that outlines the two forms that a prosecutor candidate must file by the 72-hour deadline before a caucus is conducted. The law says: "A person who wishes to be a candidate for pro tempore appointment to fill a vacancy under this chapter must file: (1) a declaration of candidacy with the chairman of the caucus; and (2) a statement of economic interests with the commission on judicial qualifications if the vacancy is in the office of prosecuting attorney."
The deadline to file those forms was 6:30 p.m. Aug. 12. The caucus was set for 6:30 p.m. Aug. 15.
On Aug. 13, the day after the deadline, Boyce contacted the state Office of Judicial Qualifications to confirm that all candidates had submitted the statement of economic interest. She made her inquiry after a candidate asked her if all candidates had filed, she said. Ackermann, Miles, St. John, Villanueva and Vertesch said they had not made the inquiry. Torres did not wish to discuss the process issues, she said.
The state could not tell Boyce which candidates had submitted the economic interests statement, so she contacted each candidate herself. Miles and Vertesch had not filed the form because they did not know it was a requirement, they said. Miles showed proof of communication where she had asked Boyce about the requirements, and Boyce had told her to submit a letter “and nothing further.”
Miles began researching the law, and discovered late Tuesday night that Indiana law also required the declaration of candidacy form, known as a CEB-5 form. When she located the form, she saw that it clearly stated that candidates for prosecutor must also file the statement of economic interests. Had she been told to file the candidacy form, she would have known to file the economic interests form. She takes responsibility for not conducting that research earlier.
The caucus was less than 48 hours away, and at that point, she had her own questions about whether all candidates had submitted both forms. She had not filed either, but when contacted by Boyce after the deadline, she was only questioned about the economic interests form, not the declaration of candidacy form. When the party leaders wouldn’t answer her, she felt forced to file a lawsuit on Wednesday evening to get answers or halt the caucus.
In her filing, she was seeking a temporary restraining order to delay the caucus, or a court order that would force the Johnson County Republican Party to allow all six candidates to participate.
She wanted the precinct committee members to know that the party was not uncovering its errors, but was intentionally mistreating a candidate by their public announcement that Miles and Vertesch had not filed the economic interests form, when the other candidates had not complied with the law either, she said.
She withdrew her lawsuit the morning of the caucus after the party leaders told her she could participate as a candidate, but she had already raised the issue of whether all candidates had filed both the declaration of candidacy and economic interests statement.
Miles wanted the party leaders to tell the truth about which candidates had complied with the entire law, she said. But she won’t take responsibility for the mess created by the Republican Party.
“I did not create this problem,” Miles said. “I am the one who brought it to the attention of the party and the public.”
That night, Boyce told the voters and candidates at the caucus that the Republican Party central committee and its attorney "started further analyzing the requirements of Indiana code 3-13-11-7 b, which requires a declaration of candidacy be filed with myself as the chairman of the caucus."
She had previously told the public and the candidates that a letter filed with herself as county chairwoman would suffice as a declaration of candidacy. In past caucuses, Boyce has also told candidates to send her a letter.
"However, upon further review of the other parts of section 3 of the Indiana code, and confirmation with the Indiana Election Division, we have confirmed that none of the candidates that sent me letters of candidacy are eligible to be a candidate tonight,” Boyce said while announcing that no caucus vote would be conducted on Thursday night.
"A candidate is required to file a CEB-5, declaration of candidacy form, with me, within the 72-hour deadline, after the vacancy occurs. Because no one did that, I am required to reject their filings."
But the party has used those forms, and is required by law to receive them by the filing deadline every time it has conducted a caucus for decades. The forms from dozens of past caucuses are filed at the county clerk’s office, making them public records.
Key state forms
After any caucus is conducted, the party chairperson or vice chairperson is required by law to file with the county clerk a state form certifying that a caucus was conducted and who was selected to fill the remainder of the term. The Republican Party has filed this form, labeled a CEB-4, 16 times since 2017 for caucuses conducted for vacancies on city and town councils, the Franklin mayor, township advisory boards, township trustee and clerk-treasurer seats.
The form states the party is attesting that the person selected in the caucus is a registered voter in the proper area, complies with all requirements to be a candidate, "and consents to this appointment by the declaration of candidacy (CEB-5 form), which was timely filed in accordance with Indiana Code 3-13-11-7, and is incorporated by reference in this certificate."
The law says the candidacy forms must be filed at least 72 hours before the caucus, and when the party leader signs the results certificate, he or she is certifying that the candidacy forms were filed by that deadline.
Attached to the result certificates filed in the courthouse are the CEB-5 candidacy forms filled out by all candidates in each caucus. A review of those records shows that many of the candidacy forms through the years are incomplete, not dated, or not notarized or signed by a public official as required.
In 15 of the most recent 16 caucuses, all the candidates for all the positions signed and dated their candidacy forms the day of the caucus, which is a violation of the law that requires they are filed by the 72-hour deadline, according to a review of the public records.
• In four caucuses conducted in recent years to fill a vacancy on the Franklin City Council, every candidate signed and dated the candidacy declaration form the date of the caucus. In one case, the form was not signed or dated by the candidate at all.
• In two caucuses conducted in recent years to fill a vacancy on the Greenwood City Council, all the candidate declaration forms are signed the date of the caucus.
• In the Franklin mayoral caucus in 2017, both candidates signed and dated their form the day of the caucus.
That means that none of the candidates placed in local office by a caucus in recent years have complied with the state law that the party is now citing as a reason to disqualify prosecutor candidates.
That also means that the party chairperson routinely has signed a form certifying that the candidacy forms were filed by deadline, even though the attached candidacy forms show they were not.
Boyce explained that state law says that candidates must submit a declaration of candidacy, but it doesn’t refer to the specific form, so the party leaders have always accepted a letter as the declaration.
For past caucuses, the county clerk has pre-printed the candidacy forms and brought them to the caucus for the candidates to sign, Boyce said.
"Once there was a hint, we realized there had been a problem with our process, that’s when we decided we could not move forward," Boyce said.
"We had asked these candidates to file these declarations incorrectly, as letters," Boyce said.
Ackermann was the only candidate who had filed his declaration on the proper form.
Ackermann, a Greenwood resident who has worked as a deputy prosecutor in Marion County and currently in Hendricks County, filed the declaration of candidacy form with Boyce twice. He provided proof of both filings to the Daily Journal.
He had the form notarized as required, and sent it to Boyce in early June through FedEx with tracking service so he could confirm it was delivered. She consulted with state election officials and sent it back to him, telling him that the vacancy did not exist yet, and to resubmit the form once Cooper was removed from office, Ackermann and Barrett said.
Ackermann sent the form back to Boyce on July 20, after Cooper was removed from office on July 17, complying with Boyce’s statement that the form be filed with her during the vacancy window.
He was not told that his form would not be accepted until the night of the caucus, when he and the candidates had gathered for the vote. Boyce told him that his form was rejected because he had signed it in May, and the vacancy did not exist at that time.
The law does not say that the form must be dated after the vacancy occurs, only that it must be filed by the 72-hour deadline before the caucus is conducted. Ackermann does not understand why the party is inserting a requirement that is not mentioned in the law.
The issue of when the candidacy form is signed, or executed, is not outlined in the law, nor has it ever been challenged in court, but the Republic Party leadership was using it as a reason to disqualify Ackermann for two reasons: they couldn’t be assured that Ackermann remained an eligible candidate just because he was in May when he first signed the form, and the importance of conducting a proper caucus, Barrett said.
The declaration of candidacy is an assertion of eligibility that the candidate made under oath, therefore it has to be made when the vacancy exists, he said. For example, a candidate could be eligible today, but not if a vacancy arose in the future, he said.
Ackermann should have submitted a new form that he signed after the vacancy existed, Barrett said.
Not only is that not a requirement of the law, it goes against common knowledge, Ackermann said. For example, he was clearly asserting that he was still eligible when he resubmitted the form, he said. And drivers do not have to trek to the license branch daily to reassert their ability to meet the requirements of having a driver’s license, he said.
The candidacy form says that the person wishes to be a candidate for a vacancy that exists “or will exist,” but that only applies to vacancies that are known to be coming due to a person being elected to another office or a retirement announcement, Barrett said.
Boyce said she learned this week that a candidate’s statement of economic interests form must also be filed with the state after the vacancy exists, which means not before July 17.
‘Not their chosen candidate’
When Miles was informed of the economic interests statement requirement, she began researching the law and saw that the specific declaration of candidacy form was required. She, as well as the other candidates, had been told by Boyce that a letter was all that was required.
If Boyce had told candidates to use the candidacy form state law requires, Miles would have seen the statement of economic interests form is also required, because it is outlined at the top of the candidacy declaration.
Miles believes Boyce was initially honest with her, and simply had a lack of knowledge about the candidacy form. Boyce had told her on July 12, before Cooper was removed, that she only needed to send a letter to become a candidate, and nothing more. If Boyce was not clear on the law, she should have directed Miles to state law and not given a definitive answer, Miles said. Boyce has since said she will make it clear that the party cannot legally advise candidates as to the requirements for eligibility.
But as Miles began raising other questions due to her research, she suspects the party’s decisions became politically motivated, she said.
At 10:30 a.m. Wednesday, the day before the caucus, Miles emailed Boyce and asked which candidates had fully complied with filing both forms that state law required, and asked for the name of the party’s attorney.
When Boyce didn’t answer her questions, Miles filed the lawsuit. She wanted an answer as to whether she would be allowed to participate as a candidate, and whether all candidates had filed both forms, she said.
Miles’s intention wasn’t to stop the caucus, she said, and she wanted to avoid a delay that would affect the public and the employees of the Johnson County Prosecutor’s Office. But, she wanted assurances that all candidates who had been treated like candidates would be permitted to speak at the caucus.
She didn’t want to be “squeezed out unfairly” when other candidates hadn’t met both requirements either, she said.
She prepared a new speech for the precinct committee members who would be selecting the next prosecutor, and planned to tell them that the party leadership wanted to squeeze her out “because I’m not their chosen candidate, and they aren’t complying with the law,” Miles said.
When Barrett told her he would tell the voters about the economic interest statement, but she would be allowed to speak, she filed a motion to dismiss the lawsuit. That step demonstrates her good intentions in wanting a fair caucus conducted correctly, Miles said.
At the close of the gathering on Thursday night, Boyce told the precinct committee members and public the party was 100 percent committed to restoring the public’s confidence in the prosecutor’s office. Those comments, which imply that the entire office lacks integrity, are offensive, Miles said.
“Maybe we should think about restoring integrity to the Republican Party,” she said.