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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. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

  2. Seventh Circuit Court Judge Diane Wood has stated in “The Rule of Law in Times of Stress” (2003), “that neither laws nor the procedures used to create or implement them should be secret; and . . . the laws must not be arbitrary.” According to the American Bar Association, Wood’s quote drives home this point: The rule of law also requires that people can expect predictable results from the legal system; this is what Judge Wood implies when she says that “the laws must not be arbitrary.” Predictable results mean that people who act in the same way can expect the law to treat them in the same way. If similar actions do not produce similar legal outcomes, people cannot use the law to guide their actions, and a “rule of law” does not exist.

  3. Linda, I sure hope you are not seeking a law license, for such eighteenth century sentiments could result in your denial in some jurisdictions minting attorneys for our tolerant and inclusive profession.

  4. Mazel Tov to the newlyweds. And to those bakers, photographers, printers, clerks, judges and others who will lose careers and social standing for not saluting the New World (Dis)Order, we can all direct our Two Minutes of Hate as Big Brother asks of us. Progress! Onward!

  5. My daughter was taken from my home at the end of June/2014. I said I would sign the safety plan but my husband would not. My husband said he would leave the house so my daughter could stay with me but the case worker said no her mind is made up she is taking my daughter. My daughter went to a friends and then the friend filed a restraining order which she was told by dcs if she did not then they would take my daughter away from her. The restraining order was not in effect until we were to go to court. Eventually it was dropped but for 2 months DCS refused to allow me to have any contact and was using the restraining order as the reason but it was not in effect. This was Dcs violating my rights. Please help me I don't have the money for an attorney. Can anyone take this case Pro Bono?

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