A Dearborn County commissioner alleges the county’s former attorney has wrongly accused two officials of violating federal law and has asked the Indiana Supreme Court Disciplinary Commission to launch an investigation of its soon-to-be leader who starts in that office June 21.
Acting as county attorney, former Dearborn Superior Judge G. Michael Witte on May 17 wrote a two-page letter to an attorney in the Hatch Act Unit of the U.S. Office of Special Counsel in Washington, D.C., asking that office to investigate possible county violations of the federal law. The 1939-enacted law is designed to prevent conflicts of interest in government, and it restricts political activity of some federal, state, and local employees who work in connection with federally funded programs.
But those who’ve been mostly intimately involved in recent cases involving the Hatch Act say the law is so complex that even those familiar with the language must seek advice from the federal officials overseeing those issues.
“It’s unfortunate that Mr. Witte got entangled in all this, but the Hatch Act is so very broad and it’s tough to understand what it does or doesn’t apply to,” said Indianapolis attorney Bryan Babb, who is not connected to the Dearborn County issue but has handled Hatch Act litigation that’s gone to the Indiana Supreme Court in recent years. “With what I’ve read on this, it sounds like a legitimate question to ask the Office of Special Counsel.”
In the Dearborn County situation, Witte wrote that he believes the county is out of compliance with the Hatch Act provisions on four grants totaling $327,112. At issue are two county employees: county commissioner candidate Shane McHenry, who is one of three sheriff’s detectives working in the county Special Crimes Unit that receives three grants; and county councilor Bryan Messmore, who was appointed and is now running for that spot while also working in the victims services area of the prosecutor’s office receiving federal grant money that partially pays for his salary and benefits.
Those dual roles of each individual could be Hatch Act violations and could result in the county losing federal grants or being fined. He wants the Washington, D.C., office to review the matter because it’s outside the county authority, Witte wrote. He raised the issue during county meetings May 17 and May 25. McHenry has responded that he hasn’t violated the Hatch Act and said he’ll remain a candidate for county commissioner.
Messmore said June 1 that he received a phone call from the Office of Special Counsel and was told he’s not in violation. The federal office didn’t return a phone message or e-mail from Indiana Lawyer to confirm that statement.
Looking at the issues, Babb said it doesn’t seem unreasonable to him that Witte raised these questions that might be a problem for the county, and that seeking advice or review from the federal office was not out of line.
“On one hand, it’s understandable that they’re upset with Mr. Witte, as they feel it doesn’t apply to them and they can’t imagine that they were somehow breaking the law,” Babb said. “Not knowing anything about these two people or instances, I can certainly see where Mr. Witte believed he had an ethical obligation as the county attorney to ask for the Office of Special Counsel to investigate this. He was protecting his client, and that’s what attorneys are supposed to do.”
But not everyone sees it that way.
Jeffrey Hughes, Dearborn County commissioner, said he’s “deeply troubled” by Witte’s handling of the situation and said those actions should be reviewed by Disciplinary Commission. Hughes said he filed a complaint with that state agency May 27.
“I am bringing this issue forward because of my concern and the concerns expressed by the citizens of Dearborn County regarding our attorney’s conduct,” Hughes wrote in a statement.
Hughes said that instead of raising the issue at a public meeting without any prior notice to commissioners or those individuals at issue, Witte could have brought this up in an executive session first or even brought it to their attention earlier so that more notice could have been served.
“This could have been done better. I know Mike was trying to look out for our best interests, but in my opinion it seems like something is amiss here with the timing,” Hughes said. “This was the next step … Even if I was uncomfortable with this, I wondered if there was anything done that shouldn’t have been done and (the commission) has a responsibility to look into it.”
Hughes’ request to the Disciplinary Commission raises an issue for the state agency and judiciary, as the Indiana Supreme Court in May named Witte as the commission’s new executive secretary responsible for handling day-to-day administrative duties. He starts that job in Indianapolis June 21, and the Dearborn County statement about potential Hatch Act violations came on the same day he announced his resignation as county attorney effective June 7.
Witte said he didn’t know that any county officials had taken an issue with his work as county attorney on this topic. Aside from his May 17 letter, Witte said he didn’t want to infringe on attorney-client privilege or court conduct rules by speaking publicly about the issue.
“I have full faith in the disciplinary process, which is designed to separate meritless claims from those with merit,” he said. “I will let the process work its due course with confidence that procedural safeguards are in place to attend to unique situations of this nature.”
Interim Executive Secretary Seth Pruden is unable to speak on the issue because possible investigations are confidential unless a verified complaint is filed. But he spoke about the procedural issues that would be in play if a complaint is lodged against someone directly involved with the Disciplinary Commission. If someone accuses a commission member, executive secretary, or staff attorney of possible misconduct, the matter is referred to the Supreme Court for another staff attorney to act as investigator on these complaints.
In the Division of State Court Administration, staff attorney and Trial Court Services Director Tom Carusillo acts as that special investigator. During the past five years, he recalled one or two complaints a year against a particular Disciplinary Commission member or staff employee. The complaint gets referred, and he contacts those involved and then makes a recommendation for the state justices to review for possible action, he said. Carusillo and Pruden both agreed they don’t recall any of those complaints reaching the verified complaint stage anytime in the past decade.•