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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. For many years this young man was "family" being my cousin's son. Then he decided to ignore my existence and that of my daughter who was very hurt by his actions after growing up admiring, Jason. Glad he is doing well, as for his opinion, if you care so much you wouldn't ignore the feelings of those who cared so much about you for years, Jason.

  2. Good riddance to this dangerous activist judge

  3. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

  4. I want to post this to keep this tread alive and hope more of David's former clients might come forward. In my case, this coward of a man represented me from June 2014 for a couple of months before I fired him. I knew something was wrong when he blatantly lied about what he had advised me in my contentious and unfortunate divorce trial. His impact on the proceedings cast a very long shadow and continues to impact me after a lengthy 19 month divorce. I would join a class action suit.

  5. The dispute in LB Indiana regarding lake front property rights is typical of most beach communities along our Great Lakes. Simply put, communication to non owners when visiting the lakefront would be beneficial. The Great Lakes are designated navigational waters (including shorelines). The high-water mark signifies the area one is able to navigate. This means you can walk, run, skip, etc. along the shores. You can't however loiter, camp, sunbath in front of someones property. Informational signs may be helpful to owners and visitors. Our Great Lakes are a treasure that should be enjoyed by all. PS We should all be concerned that the Long Beach, Indiana community is on septic systems.

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