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COA affirms damages award to state, but reduces total amount

February 28, 2017

The state of Indiana was entitled to more than $1 million in costs and treble damages after a township auditor criminally misappropriated funds, the Indiana Court of Appeals held Tuesday, though it reduced the total amount of damages owed to the state.

In 2010, Alan Mizen, chief financial officer for Center Township in Marion County, deposited a check for nearly $350,000 into an account held by “Alan S. Mizen DBA Attorney’s General Clearing Tr.” He transferred the funds into his personal accounts and used the money to make various personal purchases. The check was supposed to be made payable to the treasurer of the state of Indiana, but instead was made payable to “Attorney’s General Clearing Tr.”

A routine audit of the township in 2014 revealed discrepancies related to the check, and Mizen was subsequently charge with theft in the U.S. District Court for the Southern District of Indiana. He pleaded guilty and agreed to pay restitution in the full amount of the check.

Then in June 2015, the state filed a complaint to recover public funds against Mizen, seeking nearly $55,000 in costs related to the State Board of Accounts’ special investigation into the township, as well as roughly $1 million in treble damages, court costs, attorney fees and other costs under the Crime Victims Relief Act.

Both parties moved for summary judgment, which was granted to the state in April 2016. The Indiana Court of Appeals affirmed that decision in part Tuesday, with Judge Patricia Riley first noting that, despite Mizen’s argument to the contrary, the state’s CVRA claims were filed within a two-year statute of limitations because they earliest the state could have known of the criminal misappropriation was January 2014.

Further, Riley wrote that the attorney general had specific authority to recover the nearly $55,000 because Indiana Code 5-11-5-1(a) gives his office authority to recover public funds that are diverted as a result of a public employee’s malfeasance.

Finally, Riley wrote that the state is entitled to recovery treble damages that equal no more than three times its actual damages. But because Mizen has already paid the nearly $350,000 in restitution, the case was remanded for the $1 million treble award to be reduced to roughly $687,000, plus attorney fees and costs.

The case is Alan Mizen v. State of Indian ex rel. Gregory F. Zoeller, Attorney General of Indiana, 40A02-1605-PL-1132.

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