The whistleblower alleging Indiana Treasurer Kelly Mitchell used illegal contracting to steer millions of dollars to campaign donors is urging the trial court to let the lawsuit continue, asserting that granting the motion to dismiss would “reward (Mitchell) and all Defendants for their failure to follow the law.”
James Holden, former chief deputy and general counsel in the Office of the Indiana Treasurer, accused Mitchell and six employees in her office, along with eight banks and the Indianapolis-based law firm of Ice Miller LLP, of all invoicing or paying claims under illegally executed state contracts. In his qui tam complaint, Holden alleges Mitchell conducted business with the other defendants either without getting the contracts approved or by using expired or unexecuted contracts.
The banks and Ice Miller argued Holden’s case should be dismissed because the documents on which he bases his allegations were publicly available. The Indiana False Claims and Whistleblower Protection Act requires whistleblower complaints to be based on original source information that is not known to the public.
Holden asserts the defendants are trying to use their alleged obfuscation to run around the state whistleblower statute. The defendants contend the complaint should be dismissed because the allegations are based on documents obtained through a public records request.
“… It is important to recognize the gravity of what Defendants are asking the Court to do,” Holden states in his response. “They are asking the Court to find that documents (to the extent written contracts even existed) released by the State Treasurer’s Office — that no other government agency or anyone else had access to because of Defendants’ failure to follow the state contracting statutes — constitute a ‘public disclosure,’ which should bar any suit to recover the amounts (illegally) paid by and to hold Defendants’ accountable.
“Ironically, it was the Individual Defendants’ failure to submit the various contracts for approval as required by (Indiana’s Financial Reorganization Act of 1947), that prevented the contracts from being posted online to the Indiana Transparency Portal,” the response continues. “It was this illegal action that necessitated Relator Holden’s use of the Indiana Access to Public Records Act request to obtain copies of the improper contracts.”
Marion Superior Court Judge John Chavis granted three motions filed by Holden asking for more time to respond. In the first motion, Holden’s lawyer, Christopher Wolcott, said he was a solo practitioner and he was having problems with his vision.
Holden originally filed his lawsuit, Holden v. Ice Miller et al., 349D05-2007-PL-022005, in July of 2020.
In his response, Holden also pushed the court to reject Mitchell’s argument that Indiana Code § 4-8.1-2-13 preempts the whistleblower claims against her. The statute holds that “any embezzlement or breach of trust” by the state treasurer shall be reported to the governor.
“Nowhere in her brief did the TOS attempt to argue that the legislature modeled IC 4-8.1-2.13 after the IFCA, nor can she,” Holden argues. “A comparison of the IFCA and the IC 4-8.1-2-13 easily demonstrates that the laws have dramatically different language, procedure, processes, and remedies. Moreover, there is nothing to indicate that in passing IC 4-81.-2-13 there was an intent to modify the IFCA in any manner.”