Former IURC chair’s appeal raises questions on official misconduct law

Dave Stafford,  www.theindianalawyer.com

Did a former state utility regulator’s behavior that got him fired rise to official misconduct if he committed no crime? An Indiana Court of Appeals panel grappled with that question, as well as which version of the law applies, during oral arguments March 31.

The state is appealing the dismissal last August of four Class D felony official misconduct counts against David Lott Hardy in Marion Superior Court in a case with sharply differing arguments as to what constitutes a crime.

Hardy

Hardy was fired as chairman of the Indiana Utility Regulatory Commission by former Gov. Mitch Daniels after he was accused of allowing ex-IURC administrative law judge and general counsel Scott Storms to work on a number of Duke Energy cases pending before the commission at the same time Storms was trying to land a job with Duke. The basis of the four official misconduct charges include accusations that Hardy lobbied Duke officials on Storms’ behalf behind the scenes, and that Hardy received improper ex parte communications.

Hardy’s lawyer said the fact that his client lost his job was the ultimate punishment, because while his conduct violated state ethics rules, he broke no laws. An attorney for the state countered that laws don’t have to be broken for someone in a position of public trust to be charged with official misconduct.

Presiding Judge Paul Mathias and Judges Cale Bradford and Rudy R. Pyle III quizzed lawyers over whether the law in place at the time Hardy was charged should apply or whether the statute as amended governs. Judges also questioned whether the statute in place at the time Hardy was charged was unconstitutionally vague.

Ellen Meilaender of the attorney general’s office argued that the charges against Hardy should be reinstated. She said the trial court rejected arguments that the former official misconduct statute, I.C. 35-44-1-2, was unconstitutionally vague. Official misconduct requires a nexus, she said – “it had to be something done in connection with official duties.” Meilaender said that could include a violation of administrative rules or policies short of a crime.

Attorney David J. Hensel urged the panel to affirm dismissal of the charges against Hardy on the basis of statutory vagueness. He argued that the Legislature acted quickly to amend the statute as I.C. 35-44.1-1-1 after Hardy was charged. The amended law defines official misconduct as a Class D felony when a public servant “commits an offense in the performance of the public servant’s official duties.”

The Legislature intended the amendment to be retroactive, Hensel argued, based on “the speed at which the Legislature responded to notification of a defect in the law” in a report from the inspector general. Lawmakers acted within five months, Hensel explained.

Cynthia Baker, Indiana University McKinney School of Law director of the Program on Law and State Government, said the Legislature didn’t specify that its 2012 amendment was retroactive, so she doubts it would be applied remedially.

“The General Assembly does not recognize official legislative history, so the law is the words that the Legislature puts in the statute,” she said.

Even with the amended language, though, Baker believes the applicability of the law is open to interpretation, and she calls the statute “very aspirational.”

“In our hearts, we don’t want our public officials to do bad things,” she said. “In a court of law, for a prosecution, you have to have specific acts to demonstrate they committed a particular crime.”

Still, Baker said the revised statute leaves unsettled the question of whether someone may be charged with official misconduct for acts that are not crimes. She noted the statute’s language doesn’t specify a criminal offense.

During oral arguments, though, Pyle challenged the notion that someone could be charged with official misconduct as a result of acts like policy violations that are less than a crime. He asked Meilaender to cite such a case that had been upheld on appeal, and she could not.

Nevertheless, judges at times appeared to be looking for a middle ground.

Assuming the accusations against Hardy are true, Bradford said, “He’s not going to be nominated for public servant of the year anytime soon. … What’s the public to do?”

Hensel replied that Hardy has already been sanctioned as the law allows by being fired, and he said three of the counts against him are based on communication that was brought to him but he didn’t initiate. “I don’t think the Legislature ever meant this to be a crime,” Hensel said. He also said no criminal offenses may be based on violation of administrative rules.

Baker said issues in State v. Hardy, 49A02-1309-CR-756, seem to mirror a 2008 public intoxication case that wound up being decided by the Indiana Supreme Court in 2011, Brenda Moore v. State. Moore was convicted of public intoxication for being in the back seat of a parked car. While she unsuccessfully argued that the state had a public policy interest in encouraging intoxicated people not to drive, the Legislature revised the public intoxication statute shortly after her case was affirmed.

“That’s an example of a law that served us well for a while, and when (lawmakers) saw it in a particular light, they changed the law,” Baker said. “It didn’t change the outcome for Brenda Moore, but it changed the outcome going forward.”

Attorney General Greg Zoeller in a statement after oral arguments said the charges against Hardy should be reinstated and remanded to Marion Superior Court.

“For the public to have confidence in our laws there must be public accountability; and individuals who hold positions of public trust ought to be held to a very high standard.  My office, working with (Marion County Prosecutor Terry Curry), maintains that the official misconduct statute that was on the books in 2010 should be enforced against this defendant, since the Legislature when it changed the law in 2012 did not make the change retroactive,” Zoeller said.•