The Law on Council Appointments; What is the Effect of a Council Vote Rejecting Frank Straub's Reappointment as Public Safety Director?

Mr. Frank Straub,
Director of Public Safety

It has been widely reported that the Indianapolis Council's vote on Mayor Ballard's reappointment of Public Safety Director Frank Straub is non-binding under Indiana law and has no practical effect, i.e. Mayor Ballard can reappoint him even if the Council does not go along.  That is important because it looks like Straub no longer enjoys a majority support on the council.  Reporters and other observers have simply accepted as true that the vote was "non-binding."  Only recently have I seen council Democrats question that presumption, saying it is an "open question" whether the Mayor can reappoint a director when the Council does not approve.

I did something radical today...I looked up the law.  There might be another statute that applies, but this one seems directly on point and it does not seem to suggest it is an open question at all. Rather it seems pretty clear that any appointment or reappointment by the Mayor of the Public Safety Director requires the approval of council.

The "non-binding" argument apparently refers to the suggestion that the Mayor could try appoint Straub as the "acting" director if the council rejects him thus making the office "vacant."  That though would be a ruse to get around the law and obviate the legislative intent in giving the council the power to approve appointments.  Judges tend not to like ruses and a calling Straub "acting" to get around the law would probably not be well-received in the event of a legal challenge.

Here is the statute.

IC 36-3-5-2
Deputies and directors; acting deputies and directors; controller and deputy controllers; corporation counsel
 (a) The executive shall, subject to the approval of the city-county legislative body, appoint each of the executive's deputies and the director of each department of the consolidated city. A deputy or director is appointed for a term of one (1) year and until a successor is appointed and qualified, but serves at the pleasure of the executive.
 (b) When making an appointment under subsection (a), the executive shall submit the name of an appointee to an office to the legislative body for its approval as follows:
        (1) When the office has an incumbent, not more than forty-five (45) days before the expiration of the incumbent's one (1) year term.
        (2) When the office has been vacated, not more than forty-five (45) days after the vacancy occurs.
(c) The executive may appoint an acting deputy or acting director whenever the incumbent is incapacitated or the office has been vacated. An acting deputy or acting director has all the powers of the office.