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So, What Does Constitute Official Misconduct?

By Julia Vaughn on August 20, 2013 in Civic Blog

August 12 was a dark day for accountability in Indiana state government.  That was the day that Marion Superior Court Judge William Nelson dismissed four felony counts of official misconduct against former Indiana Utility Regulatory Commission Chairman David Hardy.  The charges were dismissed not because Hardy was innocent but because of a flaw in Indiana’s official misconduct law which has since been rectified.  All Hoosiers should be outraged that, according to John Russell’s story in the Indianapolis Star Charges dismissed against former Indiana utility regulator David Lott Hardy | Indianapolis Star | indystar.com, having secret meetings with Duke Energy and flouting state ethics rules regarding post-employment with regulated entities, does not, in and of itself, constitute official misconduct.  It’s outrageous that Hardy, after spitting all over the public trust, will slither off into the sunset unpunished.

Defense Secretary Robert M. Gates South America TripThis case raises a number of questions that deserve answers.   First, why did Judge Nelson break with standard practice and choose to apply an amended law retroactively?    He assumes the General Assembly must have meant for it to be applied that way because they quickly changed the law when its flaws were called to their attention but he may be assuming too much.  According to some experts (The Indiana Law Blog: Ind. Decisions – More on: “Charges related to Duke Energy ethics scandal dismissed against former Indiana utility regulator David Lott Hardy)”  the lack of a retroactivity clause in the new law indicates the legislature did not intend for it to be applied this way.

Further, this case raises questions about how other public officials accused of misconduct, like former Superintendent of Public Instruction Tony Bennett can be held accountable for unethical behavior if our official misconduct laws are so narrow.

Unfortunately, we’ll never have a clear explanation of what the General Assembly’s intent was because unlike many other states, Indiana does not require that legislation include a statement of intent.  I’ve been around the Indiana General Assembly for over 25 years and can attest that many of our statutes are garbled at best and incomprehensible at worst, so I understand Judge Nelson’s dilemma in trying to decipher intent.  Wouldn’t it be great if the legislature spelled its intent out in plain English as a preamble to the legislative language?  Sure would help the public, and in some cases, even judges, figure out exactly what our laws mean.

While this case shines a glaring light on several weaknesses in our law and in our legislative process, it underscores the importance of Indiana’s Access to Public Records statute.   Because of a journalist’s use of the Public Records Act, Hardy’s unethical behavior was exposed and he, along with his colleague Scott Storms and Duke Energy’s Jim Turner, lost their jobs in the ensuing scandal.  Without laws giving the public access to communication between regulators and the regulated it’s likely their wrongdoing would have gone undetected.

Still, it’s disappointing that losing his job is the only punishment Hardy has faced.  Let’s hope the Marion County Prosecutor in Indianapolis appeals the decision and keeps trying to hold him accountable for betraying the public trust.

Julia Vaughn is the policy director for Common Cause Indiana. She joined the organization in 1995 and is responsible for policy development, lobbying, grassroots organizing and coalition building. Julia has a degree in telecommunications from Indiana University. She previously served as director of health policy for the Citizens Action Coalition of Indiana, and as director of Count Us IN, a project sponsored by the Governor’s Council for People with Disabilities to increase political participation by Hoosiers with disabilities.

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