Court orders AG Rokita to release report on former job in private sector

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Indiana Attorney General Todd Rokita will have to make public the government’s advisory opinion on his former employment with Apex Benefits after a trial court rejected his argument that the document is confidential.

The Marion Superior Court issued the order Jan. 3 in Barbara Tully v. Theodore (“Todd”) Rokita, 49D06-2107-PL-025333. The ruling gave the attorney general 30 days to produce a redacted copy of the opinion written by the Indiana inspector general in January 2021.

Rokita’s office said it has not decided whether to appeal, but it warned the order would have far-reaching adverse consequences.

“We are reviewing the ruling, but as we have argued, this promotes bad public policy as there is significant value in state personnel seeking confidential advisory opinions before they act so good government can be maintained,” a spokesperson for the Attorney General’s Office wrote in an email to Indiana Lawyer. “This ruling, if it stands, will have a chilling effect on state employees and drive behavior underground, resulting in waste, fraud, and abuse to the taxpayer.”

William Groth of Bowman & Vlink, who represented plaintiff Barbara Tully, said the court’s ruling upholds Indiana’s “strong public policy” of transparency.

“(This lawsuit was) an attempt to enforce the requirements of the law which are designed to foster transparency of governmental actions,” Groth told Indiana Lawyer. “… Here, we have the state’s highest law enforcement official requesting an ethics opinion arising out of his employment, both before and after he was sworn in, in the private sector and asking for an ethics opinion as to the propriety of that.

“He gets the ethics opinion. He publicly claims that it exonerated him and then he refuses to release it,” Groth contined. “I think Ms. Tully was struck by the irony of that and decided she’d like to see it.”

Groth said he believes Tully will be “happy to share” the opinion once it is released.

Indiana Attorney General Todd Rokita

Rokita had asked for the advisory opinion shortly after he was sworn in as attorney general at the start of 2021. Although he was newly serving as the state’s top lawyer, he temporarily kept his employment with Apex Benefits, a private health care benefits company, before resigning in March 2021.

A spokeswoman for the Attorney General’s Office at the time told Indianapolis Business Journal that the opinion found Rokita’s outside employment was within the law and did not conflict with his official duties. However, when Barbara Tully, a resident of Marion County, requested a copy of the inspector general’s findings, the AG’s office declined to release the document, claiming “informal advisory opinions” are confidential under Indiana Code § 5-14-3-4(b)(6).

Marion Superior Judge Kurt Eisgruber was unconvinced by the argument Rokita made in his motion for summary judgment. The attorney general that claimed under Rule 8 of the Indiana Code of Ethics, 42 Indiana Administrative Code § 1-8-1(b)(1) and (2), the informal advisory opinions remain confidential unless the state employee who requested the opinion waives confidentiality.

Eisgruber agreed Rule 8 allows for advisory opinions. But the judge found the rule is “not harmonious” with Rule 5, 42 I.A.C. § 1-5-1, et seq., which puts the issue of outside employment under the purview of the Indiana Ethics Commission.

The judge concluded the commission’s authority would be undermined if the court followed Rokita’s reasoning that informal opinions from the IG are “for the purpose of deliberation and decision making” and, therefore, exempt under I.C. 5-14-3-4(b)(6).

“In matters of outside employment, the Defendant’s reasoning would allow a state employee to determine whether to request an informal advisory opinion under Rule 8, or be subject to a more public review by the Commission subject to the (Indiana Access to Public Records Act),” Eisgruber wrote. “Such a work around would allow the IG to promulgate rules which clearly exceed the IG’s statutory authority.”

During the proceedings, both parties agreed to allow the judge to review the report in camera. The order enables the attorney general to redact the opinion before submitting it to the court.

Groth interpreted that provision as only allowing Rokita to keep confidential information that is already exempt under the public transparency law, such as Social Security numbers. The attorney said his client may file a motion to correct error in the coming weeks to ask the court for clarification on what redactions will be permitted.

“We’ll see what Rokita does next,” Groth said. “Unlike private citizens, if he decided to take an appeal, the taxpayers foot the bill. So there’s not a lot of downside for him to pursue it into the appellate court, but we hope he won’t. And if he does, it’s just going to increase the curiosity level as well as increase the potential liability for additional (attorney) fees.”

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