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Monday, October 09, 2006

Ind. Decisions - Court of Appeals "clarifies conflict of interest law" in NFP opinion

Ed Feigenbaum of Indiana Daily Insight posts a list of "teasers" each Monday of items he has written about in his most recent weekly pay publication, Indiana Legislative Insight. This item caught my eye this morning: "Court of Appeals clarifies conflict of interest laws." I contacted Ed to see what the case was. It turns out it was this NFP from Oct. 4th:

In Mary Cox v. State of Indiana (NFP), a 9-page opinion, Judge Bailey writes:

I. Was Cox a Public Servant?

A public servant who knowingly or intentionally has a pecuniary interest in or derives a profit from a contract or purchase connected with an action by the governmental entity served by the public servant commits conflict of interest, a Class D felony. Ind. Code § 35-44-1-3(a). Public servant is defined as a “person who is authorized to perform an official function on behalf of, and is paid by, a governmental entity.” I.C. § 35-41-1-24(1).

On appeal, Cox argues that she was merely a public employee, not a “public servant,” as defined above. In so arguing, Cox emphasizes that the definition of “public servant” has two elements: performing an official function and being paid. If the statute were meant to apply to all state employees, she suggests, the only requirement of being a public servant would be receiving payment from a governmental entity. The legislature’s inclusion of “perform[ing] an official function” in the definition, she asserts, was intended to distinguish certain state employees from others.

We disagree with Cox’s interpretation of the statute. If the definition of “public servant” had the single element of being paid by a governmental entity, then vendors to governmental entities would qualify as “public servants.” This was apparently not the legislature’s aim in crafting the conflict of interest statute. * * * We find that Cox was a public servant for purposes of the conflict of interest statute. [ILB - This is the "clarification" - rejecting Cox's argument that the conflict of interest statute does not apply to all state employees]

II. Was Variance in Charging Information Fatal?

Here, Cox was charged with conflict of interest, an element of which is service to a governmental entity. I.C. § 35-44-1-3(a). The State filed charging information alleging that Cox was an employee of Marion County. The facts proved at trial, however, established that Cox was, in fact, an employee of FSSA, a state government department. In closing argument, Cox asserted without explanation that she was prejudiced by this variance. * * *

Essentially, the charging information misidentified Cox’s employer. We trust that she understood the true identity of her employer. Cox was not misled by the State’s charging information. Nor was she prejudiced. The State’s affidavit of probable cause, filed the same day as the charging information, stated repeatedly and accurately that Cox was an employee of FSSA. Indeed, in closing argument, Cox revealed that she had been waiting for the State to amend its charging information. Thus, Cox’s preparation of her defense was not harmed by the State’s original misidentification of her employer. * * *

In Madison v. State, the information stated that the defendant’s hand grenade was loaded with nitroglycerine, while the proof showed that it was filled with T.N.T. The Madison court found that, for the murder charge, language generally identifying the substance as an explosive would have sufficed. Madison v. State, 234 Ind. 517, 130 N.E.2d 35, 47 (1955). Several other cases have followed the reasoning in Madison.5 Where courts have reversed convictions, the variance either amounted to an entirely different crime,6 or the variance created ambiguity as to exactly which alleged criminal act was the subject of the charge.

Here, Cox was charged with conflict of interest as a public servant of a entity. Because Cox was not misled, prejudiced, or potentially subject to double jeopardy, it is not material whether that governmental entity was Marion County or the State of Indiana. The variance between the State’s charging information and its proof at trial did not constitute a fatal variance.

Conclusion. The trial court properly denied Cox’s motion to correct error. Affirmed.

Posted by Marcia Oddi on October 9, 2006 07:26 AM
Posted to Ind. App.Ct. Decisions