ILNews

IDEM could fire employee for ethics violation

Back to TopE-mailPrintBookmark and Share

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.

ADVERTISEMENT

Sponsored by
2015 Distinguished Barrister &
Up and Coming Lawyer Reception

Tuesday, May 5, 2015 • 4:30 - 7:00 pm
Learn More


ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. People have heard of Magna Carta, and not the Provisions of Oxford & Westminster. Not that anybody really cares. Today, it might be considered ethnic or racial bias to talk about the "Anglo Saxon common law." I don't even see the word English in the blurb above. Anyhow speaking of Edward I-- he was famously intolerant of diversity himself viz the Edict of Expulsion 1290. So all he did too like making parliament a permanent institution-- that all must be discredited. 100 years from now such commemorations will be in the dustbin of history.

  2. Oops, I meant discipline, not disciple. Interesting that those words share such a close relationship. We attorneys are to be disciples of the law, being disciplined to serve the law and its source, the constitutions. Do that, and the goals of Magna Carta are advanced. Do that not and Magna Carta is usurped. Do that not and you should be disciplined. Do that and you should be counted a good disciple. My experiences, once again, do not reveal a process that is adhering to the due process ideals of Magna Carta. Just the opposite, in fact. Braveheart's dying rebel (for a great cause) yell comes to mind.

  3. It is not a sign of the times that many Ind licensed attorneys (I am not) would fear writing what I wrote below, even if they had experiences to back it up. Let's take a minute to thank God for the brave Baron's who risked death by torture to tell the government that it was in the wrong. Today is a career ruination that whistleblowers risk. That is often brought on by denial of licenses or disciple for those who dare speak truth to power. Magna Carta says truth rules power, power too often claims that truth matters not, only Power. Fight such power for the good of our constitutional republics. If we lose them we have only bureaucratic tyranny to pass onto our children. Government attorneys, of all lawyers, should best realize this and work to see our patrimony preserved. I am now a government attorney (once again) in Kansas, and respecting the rule of law is my passion, first and foremost.

  4. I have dealt with more than a few I-465 moat-protected government attorneys and even judges who just cannot seem to wrap their heads around the core of this 800 year old document. I guess monarchial privileges and powers corrupt still ..... from an academic website on this fantastic "treaty" between the King and the people ... "Enduring Principles of Liberty Magna Carta was written by a group of 13th-century barons to protect their rights and property against a tyrannical king. There are two principles expressed in Magna Carta that resonate to this day: "No freeman shall be taken, imprisoned, disseised, outlawed, banished, or in any way destroyed, nor will We proceed against or prosecute him, except by the lawful judgment of his peers or by the law of the land." "To no one will We sell, to no one will We deny or delay, right or justice." Inspiration for Americans During the American Revolution, Magna Carta served to inspire and justify action in liberty’s defense. The colonists believed they were entitled to the same rights as Englishmen, rights guaranteed in Magna Carta. They embedded those rights into the laws of their states and later into the Constitution and Bill of Rights. The Fifth Amendment to the Constitution ("no person shall . . . be deprived of life, liberty, or property, without due process of law.") is a direct descendent of Magna Carta's guarantee of proceedings according to the "law of the land." http://www.archives.gov/exhibits/featured_documents/magna_carta/

  5. I'm not sure what's more depressing: the fact that people would pay $35,000 per year to attend an unaccredited law school, or the fact that the same people "are hanging in there and willing to follow the dean’s lead in going forward" after the same school fails to gain accreditation, rendering their $70,000 and counting education worthless. Maybe it's a good thing these people can't sit for the bar.

ADVERTISEMENT