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Official misconduct statute focus of Hardy appeal

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Whether Indiana’s official misconduct statute is unconstitutionally vague was the question before an appeals court panel Monday that heard the state argue that criminal charges should be reinstated against the fired head of the Indiana Utility Regulatory Commission.

Charges against former IURC chairman David Lott Hardy were dismissed last August. Former Gov. Mitch Daniels fired Hardy, who had been charged with four counts of official misconduct in 2011. Hardy was accused of allowing former IURC administrative law judge and general counsel Scott Storms to work on a number of Duke Energy cases pending before the commission at the same time Storms was trying to land a job with Duke.

Ellen Meilaender of the attorney general’s office argued that the charges against Hardy should be reinstated. She said the trial court rejected arguments that the official misconduct statute, I.C. 35-44-1-2, was unconstitutionally vague. She said official misconduct requires a nexus – “it had to be something done in connection with official duties.”

Attorney David J. Hensel urged the panel to affirm dismissal of the charges against Hardy on the basis of statutory vagueness. He argued that the Legislature acted quickly to amend the statute after Hardy was charged in order to clarify that the charge applies to a public servant who “knowingly or intentionally commits an offense” in the performance of duties.
   
The Legislature intended the amendment to be retroactive, Hensel argued, based on “the speed at which the legislature responded to notification of a defect in the law” in a report from the Inspector General. Lawmakers acted within five months, Hensel said.

Presiding Judge Paul Mathias and Judges Cale Bradford and Rudy R. Pyle III quizzed both sides on vagaries of the statute’s interpretation, whether the Legislature’s amendment was remedial and whether the statute requires a criminal act or if violations of agency policy may qualify as official misconduct.

Assuming the accusations against Hardy are true, Mathias said, “He’s not going to be nominated for public servant of the year anytime soon. … What’s the public to do?”

Hensel replied that Hardy has already been sanctioned by being fired, and he said three of the counts against him are based on communication that was brought to him but he didn’t initiate. “I don’t think the Legislature ever meant this to be a crime,” Hensel said. He also said no criminal violations may be based on violation of administrative rule.

Attorney General Greg Zoeller in a statement said the charges against Hardy should be reinstated and remanded to Marion Superior Court.

“For the public to have confidence in our laws there must be public accountability; and individuals who hold positions of public trust ought to be held to a very high standard.  My office, working with the prosecutor, maintains that the official misconduct statute that was on the books in 2010 should be enforced against this defendant, since the Legislature when it changed the law in 2012 did not make the change retroactive,” Zoeller said.



 

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  1. Im very happy for you, getting ready to go down that dirt road myself, and im praying for the same outcome, because it IS sometimes in the childs best interest to have visitation with grandparents. Thanks for sharing, needed to hear some positive posts for once.

  2. Been there 4 months with 1 paycheck what can i do

  3. our hoa has not communicated any thing that takes place in their "executive meetings" not executive session. They make decisions in these meetings, do not have an agenda, do not notify association memebers and do not keep general meetings minutes. They do not communicate info of any kind to the member, except annual meeting, nobody attends or votes because they think the board is self serving. They keep a deposit fee from club house rental for inspection after someone uses it, there is no inspection I know becausee I rented it, they did not disclose to members that board memebers would be keeping this money, I know it is only 10 dollars but still it is not their money, they hire from within the board for paid positions, no advertising and no request for bids from anyone else, I atteended last annual meeting, went into executive session to elect officers in that session the president brought up the motion to give the secretary a raise of course they all agreed they hired her in, then the minutes stated that a diffeerent board member motioned to give this raise. This board is very clickish and has done things anyway they pleased for over 5 years, what recourse to members have to make changes in the boards conduct

  4. Where may I find an attorney working Pro Bono? Many issues with divorce, my Disability, distribution of IRA's, property, money's and pressured into agreement by my attorney. Leaving me far less than 5% of all after 15 years of marriage. No money to appeal, disabled living on disability income. Attorney's decision brought forward to judge, no evidence ever to finalize divorce. Just 2 weeks ago. Please help.

  5. For the record no one could answer the equal protection / substantive due process challenge I issued in the first post below. The lawless and accountable only to power bureaucrats never did either. All who interface with the Indiana law examiners or JLAP be warned.

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