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Monday, February 04, 2013

Ind. Law - Lucrative Offices: "Confusing sets of rules govern those with dual public roles"

A long editorial in the Sunday Fort Wayne Journal Gazette, written by Tracy Warner, looks at:

... Indiana’s law on conflicts of interest, holding two government jobs and “double dipping” by government employees. The state’s legal approach is at best contradictory and confusing, and at worst – at least to a layperson – seemingly haphazard and nonsensical.
More:
[W]hile the Hatch Act is fairly clear for federal employees, Indiana’s law for local government employees is confusing, starting with the state’s constitutional ban, continuing with the convoluted and – to many Hoosiers – non-understandable definition of “lucrative office” and ending with hit-and-miss state laws.

For example, public school teachers are prohibited from serving on the school boards that govern the districts where they work (good policy), while legislators have conveniently allowed themselves to work for state-financed universities (bad policy). Ivy Tech, in particular, has taken great advantage of this giant loophole by liberally employing state legislators who, conveniently, have been quite generous in awarding tax dollars to the state college.

Think about it. The more money legislators give Ivy Tech, the better Ivy Tech can pay its employees, some of whom are legislators.

But conflict of interest is only one of the reasons the state constitution bans workers from holding more than one “lucrative office.”

“The concerns over fear of corruption in government as well as a fear of too much power and control falling into the hands of too few led the Framers to include” the ban on dual offices, Indiana Attorney General Greg Zoeller, then chief counsel to the A.G., wrote in an extensive Indiana Law Review article on the issue in 2004.

The framers were also concerned about the separation of powers among the legislative, executive and judicial branches. If one person serves in two branches, that can undermine the separation.

A helpful “Dual Officeholding Guide” the Indiana attorney general’s office issues cautions officeholders to consult with an attorney before taking a second government job, noting it can be a felony to hold two “lucrative offices.”

But just defining “office” and “lucrative” can be tortuous. Holding a government job isn’t the same as holding government office, and “lucrative” in this case doesn’t hold the common definition.

“An office is considered ‘lucrative’ when there is attached compensation for services rendered,” the guide explains, and “does not depend on the amount of compensation affixed to the office.”

Per diem payments are considered compensation, even though they are usually intended to cover expenses. * * *

Generally, a 1911 court opinion explains, a public officeholder in Indiana is someone “charged with duties delegated to them under the state government, with duties imposed upon them by statute, and are subject to legislative control.”

Clear? Hardly.

A long list of court decisions and state laws leaves much up to interpretation, and some of the inconsistencies can be difficult to explain. For example, a 1969 court ruling declares a city clerk-treasurer (the position in smaller cities) a “lucrative” office, but an 1876 ruling says a city clerk is not. The county highway engineer is lucrative, but a city civil engineer is not. Members of alcohol beverage boards hold lucrative positions, but city Board of Public Works members do not.

The editorial looks at the reasons behind the prohibition: concerns about consolidating power in too few hands and creating conflicts of interest is one, and double dipping is another. Sometimes the two rationales merge, such as when a legislator is also on the payroll of a state university. The article concludes:
To eliminate potential conflict, violations of separation of powers and double dipping, Indiana legislators could pass a simple law: Only one government job per person.

If they won’t go that far, legislators at the very least should recognize that a number of Hoosiers – university officials among them – clearly believe those lawmakers should not be working for institutions they finance with tax dollars. Credit Republican Rep. Bill Davis of Portland for authoring a bill (HB 1088) to prohibit the practice, though it is destined to go nowhere. The perception among some Hoosiers is that Ivy Tech “owns” legislators. It’s appalling.

A sidebar gives a few examples of double-dipping public officials, but certainly does not list all the legislators engaging in this practice.

Posted by Marcia Oddi on February 4, 2013 02:28 PM
Posted to Indiana Law