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Tuesday, April 01, 2014

Ind. Gov't. - Is David Lott Hardy immune from criminal prosecution despite violating state ethics rules?

Yesterday the Court of Appeals heard oral argument in the case of former Indiana Utility Regulatory Commission head, David Lott Hardy. Watch the argument here.

Here is coverage of the argument, from Jacob Rund, a reporter for TheStatehouseFile.com. Some quotes:

In August 2012, the state filed charges accusing David Lott Hardy of inappropriately assisting an IURC employee and holding secret meetings with Duke Energy executives. Last fall, Superior Court Judge William Nelson dismissed the charges and a month later, the office of the Attorney General filed a notice appealing the decision. * * *

During his trial in Marion Superior Court, Hardy faced four charges of official misconduct - all class D felonies. The first charge accused Hardy of talking to Duke Energy officials about a job for Scott Storms, who was then an IURC administrative law judge working on a case involving construction of a Duke power plant.

The second, third, and fourth charges claimed illegal acts of secret communication occurred among Hardy and Duke Energy officials between 2008 and 2010. The charges claimed Hardy violated his duty as a public servant by failing to disclose communication with various Duke Energy officials concerning pending proceedings involving the company's Edwardsport facility.

Nelson dismissed the charges against Hardy based on an amendment passed by the Indiana General Assembly to correct a poorly written law.

Before the amendment, the law allowed for any violation of procedure - even one noncriminal in nature - to be charged as official misconduct.

After Indiana Inspector General David Thomas filed a report in 2010 noting problems with the legislation, lawmakers quickly refined it to only include criminal behavior. * * *

The main question at hand is whether the amendment - which became effective in the summer of 2012 - could be viewed as retroactive and would then include Hardy's alleged violations during 2008-2010.

David Hensel, Hardy's defense attorney, argued the amendment is indeed retroactive and should lead to the subsequent dismissal of all charges.

Hensel pointed to the timely manner in which the legislature responded to the report of loose language in the law by the Inspector General as a main reason why the amendment should also apply to Hardy's situation.

"The speed... that seems to be the critical factor," he said. "The speed at which the legislature responds to notification of a defect in the law and a request to remedy that defect."

Hensel also cited a previous court ruling that contained language naming the speed of response by the legislature to a problem with a law as a determining factor of the lawmaker's original intent.

Ellen Meilaender, a deputy attorney general representing the state, argued there is no evidence that the General Assembly intended for the amendment to be retroactive.

"There is no evidence clearly showing an implicit intent by the legislature for retroactive application; in fact, the evidence supports the opposite conclusion," said Meilaender in a written argument.

Also in her written argument, Meilaender denounced the defendant's reasoning that the change by the legislature constitutes lawmakers' belief that the law is "defective."

"The fact that the Inspector General asked the legislature to "clarify" the law does not prove that the legislature agreed that the statute was defective as opposed to just a decision that the legislature no longer like the reach of the statute," she said.

Following Monday's Appeals Court hearing, Attorney General Greg Zoeller issued a statement affirming his belief that Hardy should be held accountable for his actions.

"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," said Zoeller. "My office, working with the prosecutor, maintains that the official misconduct statute that was on the books in 2010 should be enforce against this defendant, since the legislature when it changed the law in 2012 did not make the change retroactive."

From an unattributed AP story in the Bloomington Herald-Times:

Hardy's attorneys say the Marion County judge did the right thing. Lawyer David Hensel said the revised misconduct law applies only to specific criminal offenses by public officials, not merely to violations of ethical or administrative rules. He said the Indiana General Assembly made those changes in 2012 when the state inspector general sought clarification as a result of the Duke-related scandal.

"There was an ambiguity in the statute," Hensel said. "Once it became aware of it, it acted quickly."

But Deputy Attorney General Ellen Meilaender said the law wasn't vague as applied to Hardy, because it clearly prohibited officials from taking part in private discussions related to decisions in which they were involved.

"But aren't some communications permissible?" asked Judge Paul Mathias.

"Yes, but these weren't," Meilaender said.

Judge Cale Bradford asked Hensel what the state could do about cases like Hardy's if it couldn't bring charges.

"It feels like you ought to be able to do something about somebody who does something like this," Bradford said.

Hensel said the former regulator had already paid a harsh penalty. "Mr. Hardy lost his job," he said.

The ILB wrote about this issue in a Sept. 9, 2013 post, which included this ILB observation:
More credible might be an assertion that the lack of a retroactivity clause clearly indicates the General Assembly did NOT intend for it to apply retroactively.

And yesterday's ruling raises the question of whether not only this, but any statute the General Assembly enacts after having been urged to by the Inspector General (or by the Court), is intended to apply retroactively, unless the new law provides otherwise! -- which would be the direct opposite of the way statutes have been applied for decades...

Posted by Marcia Oddi on April 1, 2014 09:39 AM
Posted to Indiana Government