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IDEM could fire employee for ethics violation

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The state's Ethics Commission correctly concluded an Indiana Department of Environmental Management employee violated a provision of the ethics code when he bought gas with a state-issued credit card at a gas station he partly owned. The Indiana Court of Appeals ruled today the amount of restitution the commission ordered him to pay wasn't supported by the evidence, so additional findings are necessary.

In Subhen Ghosh v. Indiana State Ethics Commission and the Office of the Inspector General, No. 32A01-0812-CV-601, Subhen Ghosh appealed the trial court's decision he was collaterally estopped from seeking reinstatement of his employment and the monetary sanction imposed by the Ethics Commission. IDEM dismissed Ghosh after discovering the misuse of his credit card; the State Employee Appeals Commission affirmed his dismissal, which was also affirmed by the Court of Appeals. The Ethics Commission investigated and sanctioned him to reimburse the department $456.96.

Ghosh appealed the Ethics Commission's decision, asking to be reinstated.

The Court of Appeals agreed with the trial court that Ghosh was collaterally estopped from asking for reinstatement because that issue had already been litigated during the Appeals Commission proceeding. The procedures outlined in Indiana Code Sections 4-15-2-34, -35, and -35.5 foreclose Ghosh's arguments that IDEM lacked authority to dismiss him for a violation of the Ethics Code and that the Appeals Commission lacked jurisdiction to review such a dismissal, wrote Judge Margret Robb.

Despite Ghosh's arguments, LTV Steel Co. v. Griffin, 730 N.E.2d 1251 (Ind. 2000), doesn't control the outcome in the instant case because the facts are substantially different and the case was decided prior to the amendments to the State Personnel Act, which required the Appeals Commission to review the propriety of a dismissal by the Ethics Commission for an ethics code violation, she wrote.

The Ethics Commission was able to sanction Ghosh based on I.C. 4-2-6-9(a). Ghosh argued the commission's interpretation was unreasonable because he didn't "participate in any decision" by using the credit card because participate implies more than one person is involved in the decision. Even though his argument of the meaning of participate is consistent in legal and general dictionaries, the appellate court rejected his argument.

"Because Ghosh unilaterally decided to use a state-issued credit card at a gas station in which he had a financial interest, he went well beyond the minimum of mere participation," she wrote. "Moreover, adopting Ghosh's interpretation would permit any single person to avoid violating the statute simply on the ground that the person acted alone."

The Court of Appeals found the monetary sanction to be unsupported by the evidence and remanded to the Ethics Commission to either make additional findings explaining how the sanction is consistent with I.C. 4-2-6-12(1) or to fashion a sanction that is consistent with the statute and supported by the evidence in the record.

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  1. Just an aside, but regardless of the outcome, I 'm proud of Judge William Hughes. He was the original magistrate on the Home place issue. He ruled for Home Place, and was primaried by Brainard for it. Their tool Poindexter failed to unseat Hughes, who won support for his honesty and courage throughout the county, and he was reelected Judge of Hamilton County's Superior Court. You can still stand for something and survive. Thanks, Judge Hughes!

  2. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  3. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  4. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  5. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

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