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ISBA panel still studying ALJ issues

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Indiana Lawyer Rehearing

Gov. Mitch Daniels fired the state’s top utility regulator recently, citing ethical concerns about how a now-former administrative law judge presided over cases involving a regulated energy company leading up to his taking a job there.

The governor’s actions told those serving as state agency ALJs that the spirit of a mandatory one-year cooling-off rule applies to them and they should be careful about considering outside employment while presiding as neutral parties over administrative matters. That also raised more questions for an Indiana State Bar Association Legal Ethics Committee task force that’s been studying ALJ-specific issues since January.

“We are still in the information-gathering process, and this is much bigger than we all had anticipated,” said Vicki Wright, an attorney at Krieg DeVault who chairs the specialized task force.

The group has been studying the scope of ALJ duties and ethical obligations and whether those individuals should be required to have law licenses. The plan was to issue a report at the ISBA board of governors meeting Oct. 15, but it isn’t ready, Wright said. She added that the governor’s recent actions have prompted more review.

In terminating attorney David Lott Hardy as Indiana Utility Regulatory Commission chairman, the governor specifically pointed to the reason being the recent departure of general counsel Scott Storms, who took a job in late September as a lawyer in Duke Energy’s regulatory division.

Storms, who was admitted to the bar in 1989, was the agency’s chief legal advisor and served as ALJ. The governor said his taking a job somewhere directly involved in cases he’d recently presided over raised the “appearance of impropriety.”

David Pippen, the governor’s general counsel, sent a memo to all agency heads outlining an internal review that found Storms had been communicating with Duke about a job even while he was presiding over administrative hearings concerning the energy company.

“Additionally, the agency head was aware of the communications and did not remove the lawyer from matters for which the lawyer was now conflicted,” Pippen said in his memo, noting that Daniels has directed that administrative opinions over which Storms presided be reopened and reviewed “to ensure no undue influence was exerted in the decisions.”

In the memo, Pippen wrote that the governor considers the one-year cooling-off period to apply to anyone at the ALJ level, and that this matter specifically has been referred to the Inspector General to determine if any laws were broken or whether misinformation was presented to the Indiana Ethics Commission.

Though it’s not outlined which Duke cases are at issue, Storms had presided over a handful of matters involving the company – most significantly one relating to cost overruns at Duke’s Edwardsport generating plant. After questions arose late last month about Storms’ departure and new position, Duke said that he and the company had previously sought an advisory opinion from the commission about whether Storms would be subject to that one-year cooling-off period before being allowed to take a job at Duke. The commission found it didn’t apply because Storms wasn’t involved in the direct decision-making, but the panel also found that he couldn’t be involved as an attorney at Duke in any matters he might have presided over while working as an ALJ.

Following the governor’s announcement, the fallout worsened as Duke said it was placing Storms on administrative leave “pending the completion of a full evaluation.” The company did the same with its president and chief executive officer of Indiana operations, Mike Reed, who had started with Duke in June after serving as commissioner of the Indiana Department of Transportation. Reed previously served as executive director of the IURC under Daniels from 2006 to 2009.

Pippen reiterated that no ALJ who presides over information-gathering or order-drafting matters should engage in communications with regulated industries regarding potential jobs without recusing him or herself from cases involving that company.

Daniels immediately appointed as the new IURC chairman Jim Atterholt, who serves on the commission and is the state’s former insurance commissioner.

Hearing about the IURC matter, Wright said the task force is now using that issue to examine what it should do on the ALJ front.

“We’re stepping a little out of our subject matter when talking about non-lawyers,” she said. “I’m not sure where the end-product will end up, but we’re meeting with and reaching out to the executive branch to brainstorm.”

Rehearing "Unique type of judging: State bar association exploring ethical concerns about ALJs" IL Dec. 23, 2009-Jan. 5, 2010
 

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  1. Indianapolis employers harassment among minorities AFRICAN Americans needs to be discussed the metro Indianapolis area is horrible when it comes to harassing African American employees especially in the local healthcare facilities. Racially profiling in the workplace is an major issue. Please make it better because I'm many civil rights leaders would come here and justify that Indiana is a state the WORKS only applies to Caucasian Americans especially in Hamilton county. Indiana targets African Americans in the workplace so when governor pence is trying to convince people to vote for him this would be awesome publicity for the Presidency Elections.

  2. Wishing Mary Willis only God's best, and superhuman strength, as she attempts to right a ship that too often strays far off course. May she never suffer this personal affect, as some do who attempt to change a broken system: https://www.youtube.com/watch?v=QojajMsd2nE

  3. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  4. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  5. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

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