Official misconduct statute focus of Hardy appeal

Whether Indiana’s official misconduct statute is unconstitutionally vague was the question before an appeals court panel Monday that heard the state argue that criminal charges should be reinstated against the fired head of the Indiana Utility Regulatory Commission.

Charges against former IURC chairman David Lott Hardy were dismissed last August. Former Gov. Mitch Daniels fired Hardy, who had been charged with four counts of official misconduct in 2011. Hardy was accused of allowing former 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.

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 official misconduct statute, I.C. 35-44-1-2, was unconstitutionally vague. She said official misconduct requires a nexus – “it had to be something done in connection with official duties.”

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 after Hardy was charged in order to clarify that the charge applies to a public servant who “knowingly or intentionally commits an offense” in the performance of 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 said.

Presiding Judge Paul Mathias and Judges Cale Bradford and Rudy R. Pyle III quizzed both sides on vagaries of the statute’s interpretation, whether the Legislature’s amendment was remedial and whether the statute requires a criminal act or if violations of agency policy may qualify as official misconduct.

Assuming the accusations against Hardy are true, Mathias 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 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 violations may be based on violation of administrative rule.

Attorney General Greg Zoeller in a statement 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 the prosecutor, 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.