ILNews

Official misconduct statute focus of Hardy appeal

Back to TopCommentsE-mailPrintBookmark and Share

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.



 

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. What is this, the Ind Supreme Court thinking that there is a separation of powers and limited enumerated powers as delegated by a dusty old document? Such eighteen century thinking, so rare and unwanted by the elites in this modern age. Dictate to us, dictate over us, the massess are chanting! George Soros agrees. Time to change with times Ind Supreme Court, says all President Snows. Rule by executive decree is the new black.

  2. I made the same argument before a commission of the Indiana Supreme Court and then to the fedeal district and federal appellate courts. Fell flat. So very glad to read that some judges still beleive that evidentiary foundations matter.

  3. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  4. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

  5. I will agree with that as soon as law schools stop lying to prospective students about salaries and employment opportunities in the legal profession. There is no defense to the fraudulent numbers first year salaries they post to mislead people into going to law school.

ADVERTISEMENT