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Former IURC chair’s appeal raises questions on official misconduct law

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Did a former state utility regulator’s behavior that got him fired rise to official misconduct if he committed no crime? An Indiana Court of Appeals panel grappled with that question, as well as which version of the law applies, during oral arguments March 31.

The state is appealing the dismissal last August of four Class D felony official misconduct counts against David Lott Hardy in Marion Superior Court in a case with sharply differing arguments as to what constitutes a crime.
 

hardy-david-lott-mug Hardy

Hardy was fired as chairman of the Indiana Utility Regulatory Commission by former Gov. Mitch Daniels after he was accused of allowing ex-IURC administrative law judge and general counsel Scott Storms to work on a number of Duke Energy cases pending before the commission at the same time Storms was trying to land a job with Duke. The basis of the four official misconduct charges include accusations that Hardy lobbied Duke officials on Storms’ behalf behind the scenes, and that Hardy received improper ex parte communications.

Hardy’s lawyer said the fact that his client lost his job was the ultimate punishment, because while his conduct violated state ethics rules, he broke no laws. An attorney for the state countered that laws don’t have to be broken for someone in a position of public trust to be charged with official misconduct.

Presiding Judge Paul Mathias and Judges Cale Bradford and Rudy R. Pyle III quizzed lawyers over whether the law in place at the time Hardy was charged should apply or whether the statute as amended governs. Judges also questioned whether the statute in place at the time Hardy was charged was unconstitutionally vague.

Ellen Meilaender of the attorney general’s office argued that the charges against Hardy should be reinstated. She said the trial court rejected arguments that the former official misconduct statute, I.C. 35-44-1-2, was unconstitutionally vague. Official misconduct requires a nexus, she said – “it had to be something done in connection with official duties.” Meilaender said that could include a violation of administrative rules or policies short of a crime.

Attorney David J. Hensel urged the panel to affirm dismissal of the charges against Hardy on the basis of statutory vagueness. He argued that the Legislature acted quickly to amend the statute as I.C. 35-44.1-1-1 after Hardy was charged. The amended law defines official misconduct as a Class D felony when a public servant “commits an offense in the performance of the public servant’s official duties.”

The Legislature intended the amendment to be retroactive, Hensel argued, based on “the speed at which the Legislature responded to notification of a defect in the law” in a report from the inspector general. Lawmakers acted within five months, Hensel explained.

Cynthia Baker, Indiana University McKinney School of Law director of the Program on Law and State Government, said the Legislature didn’t specify that its 2012 amendment was retroactive, so she doubts it would be applied remedially.

“The General Assembly does not recognize official legislative history, so the law is the words that the Legislature puts in the statute,” she said.

Even with the amended language, though, Baker believes the applicability of the law is open to interpretation, and she calls the statute “very aspirational.”

“In our hearts, we don’t want our public officials to do bad things,” she said. “In a court of law, for a prosecution, you have to have specific acts to demonstrate they committed a particular crime.”

Still, Baker said the revised statute leaves unsettled the question of whether someone may be charged with official misconduct for acts that are not crimes. She noted the statute’s language doesn’t specify a criminal offense.

During oral arguments, though, Pyle challenged the notion that someone could be charged with official misconduct as a result of acts like policy violations that are less than a crime. He asked Meilaender to cite such a case that had been upheld on appeal, and she could not.

Nevertheless, judges at times appeared to be looking for a middle ground.

Assuming the accusations against Hardy are true, Bradford said, “He’s not going to be nominated for public servant of the year anytime soon. … What’s the public to do?”

Hensel replied that Hardy has already been sanctioned as the law allows by being fired, and he said three of the counts against him are based on communication that was brought to him but he didn’t initiate. “I don’t think the Legislature ever meant this to be a crime,” Hensel said. He also said no criminal offenses may be based on violation of administrative rules.

Baker said issues in State v. Hardy, 49A02-1309-CR-756, seem to mirror a 2008 public intoxication case that wound up being decided by the Indiana Supreme Court in 2011, Brenda Moore v. State. Moore was convicted of public intoxication for being in the back seat of a parked car. While she unsuccessfully argued that the state had a public policy interest in encouraging intoxicated people not to drive, the Legislature revised the public intoxication statute shortly after her case was affirmed.

“That’s an example of a law that served us well for a while, and when (lawmakers) saw it in a particular light, they changed the law,” Baker said. “It didn’t change the outcome for Brenda Moore, but it changed the outcome going forward.”

Attorney General Greg Zoeller in a statement after oral arguments said the charges against Hardy should be reinstated and remanded to Marion Superior Court.

“For the public to have confidence in our laws there must be public accountability; and individuals who hold positions of public trust ought to be held to a very high standard.  My office, working with (Marion County Prosecutor Terry Curry), maintains that the official misconduct statute that was on the books in 2010 should be enforced against this defendant, since the Legislature when it changed the law in 2012 did not make the change retroactive,” Zoeller said.•
 

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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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