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County official wants review of new ethics leader

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A Dearborn County commissioner alleges the county’s former attorney has wrongly accused two officials of violating federal law and has asked the Indiana Supreme Court Disciplinary Commission to launch an investigation of its soon-to-be leader who starts in that office June 21.
 

michael witte Witte

Acting as county attorney, former Dearborn Superior Judge G. Michael Witte on May 17 wrote a two-page letter to an attorney in the Hatch Act Unit of the U.S. Office of Special Counsel in Washington, D.C., asking that office to investigate possible county violations of the federal law. The 1939-enacted law is designed to prevent conflicts of interest in government, and it restricts political activity of some federal, state, and local employees who work in connection with federally funded programs.

But those who’ve been mostly intimately involved in recent cases involving the Hatch Act say the law is so complex that even those familiar with the language must seek advice from the federal officials overseeing those issues.

“It’s unfortunate that Mr. Witte got entangled in all this, but the Hatch Act is so very broad and it’s tough to understand what it does or doesn’t apply to,” said Indianapolis attorney Bryan Babb, who is not connected to the Dearborn County issue but has handled Hatch Act litigation that’s gone to the Indiana Supreme Court in recent years. “With what I’ve read on this, it sounds like a legitimate question to ask the Office of Special Counsel.”

In the Dearborn County situation, Witte wrote that he believes the county is out of compliance with the Hatch Act provisions on four grants totaling $327,112. At issue are two county employees: county commissioner candidate Shane McHenry, who is one of three sheriff’s detectives working in the county Special Crimes Unit that receives three grants; and county councilor Bryan Messmore, who was appointed and is now running for that spot while also working in the victims services area of the prosecutor’s office receiving federal grant money that partially pays for his salary and benefits.

Those dual roles of each individual could be Hatch Act violations and could result in the county losing federal grants or being fined. He wants the Washington, D.C., office to review the matter because it’s outside the county authority, Witte wrote. He raised the issue during county meetings May 17 and May 25. McHenry has responded that he hasn’t violated the Hatch Act and said he’ll remain a candidate for county commissioner.

Messmore said June 1 that he received a phone call from the Office of Special Counsel and was told he’s not in violation. The federal office didn’t return a phone message or e-mail from Indiana Lawyer to confirm that statement.

Looking at the issues, Babb said it doesn’t seem unreasonable to him that Witte raised these questions that might be a problem for the county, and that seeking advice or review from the federal office was not out of line.

“On one hand, it’s understandable that they’re upset with Mr. Witte, as they feel it doesn’t apply to them and they can’t imagine that they were somehow breaking the law,” Babb said. “Not knowing anything about these two people or instances, I can certainly see where Mr. Witte believed he had an ethical obligation as the county attorney to ask for the Office of Special Counsel to investigate this. He was protecting his client, and that’s what attorneys are supposed to do.”

But not everyone sees it that way.

Jeffrey Hughes, Dearborn County commissioner, said he’s “deeply troubled” by Witte’s handling of the situation and said those actions should be reviewed by Disciplinary Commission. Hughes said he filed a complaint with that state agency May 27.

“I am bringing this issue forward because of my concern and the concerns expressed by the citizens of Dearborn County regarding our attorney’s conduct,” Hughes wrote in a statement.

Hughes said that instead of raising the issue at a public meeting without any prior notice to commissioners or those individuals at issue, Witte could have brought this up in an executive session first or even brought it to their attention earlier so that more notice could have been served.

“This could have been done better. I know Mike was trying to look out for our best interests, but in my opinion it seems like something is amiss here with the timing,” Hughes said. “This was the next step … Even if I was uncomfortable with this, I wondered if there was anything done that shouldn’t have been done and (the commission) has a responsibility to look into it.”

Hughes’ request to the Disciplinary Commission raises an issue for the state agency and judiciary, as the Indiana Supreme Court in May named Witte as the commission’s new executive secretary responsible for handling day-to-day administrative duties. He starts that job in Indianapolis June 21, and the Dearborn County statement about potential Hatch Act violations came on the same day he announced his resignation as county attorney effective June 7.

Witte said he didn’t know that any county officials had taken an issue with his work as county attorney on this topic. Aside from his May 17 letter, Witte said he didn’t want to infringe on attorney-client privilege or court conduct rules by speaking publicly about the issue.

“I have full faith in the disciplinary process, which is designed to separate meritless claims from those with merit,” he said. “I will let the process work its due course with confidence that procedural safeguards are in place to attend to unique situations of this nature.”

Interim Executive Secretary Seth Pruden is unable to speak on the issue because possible investigations are confidential unless a verified complaint is filed. But he spoke about the procedural issues that would be in play if a complaint is lodged against someone directly involved with the Disciplinary Commission. If someone accuses a commission member, executive secretary, or staff attorney of possible misconduct, the matter is referred to the Supreme Court for another staff attorney to act as investigator on these complaints.

In the Division of State Court Administration, staff attorney and Trial Court Services Director Tom Carusillo acts as that special investigator. During the past five years, he recalled one or two complaints a year against a particular Disciplinary Commission member or staff employee. The complaint gets referred, and he contacts those involved and then makes a recommendation for the state justices to review for possible action, he said. Carusillo and Pruden both agreed they don’t recall any of those complaints reaching the verified complaint stage anytime in the past decade.•

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  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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