AG Hill to get witness statements; Selby declines to recuse in discipline case

Witness statements collected during the criminal investigation into Indiana Attorney General Curtis Hill must be turned over to the lawyers defending Hill against an attorney disciplinary action, a hearing officer has ruled.

Indiana Inspector General Lori Torres must turn over all witness statements, photos/videos and documents collected during the 2018 investigation into whether Hill could be criminally or ethically charged for allegedly groping four women at a March 2018 legislative party, hearing officer and former Indiana Supreme Court Justice Myra Selby ordered Friday. Meanwhile, Selby has declined to recuse herself as hearing officer due to an alleged potential conflict of interest.

Hill’s defense team subpoenaed Torres’ office for the investigative records as part of a disciplinary action stemming from his alleged sexual misconduct in March 2018, when four women — state Rep. Mara Candelaria Reardon and legislative staffers Niki DaSilva, Samantha Lozano and Gabrielle McLemore — say the AG inappropriately touched them without their consent. Though Torres and special prosecutor Daniel Sigler cleared Hill of criminal and official wrongdoing, the Indiana Supreme Court Disciplinary Commission has accused Hill of attorney misconduct.

Torres’ office partially responded to the subpoena, providing Hill’s legal team with the names and contact information for dozens of witnesses identified during the criminal investigation. However, the IG’s Office moved to quash a subpoena for the full witness statements and related documents, arguing they were privileged under Indiana Code §§ 4-2-7-8(b) and (c).

Hill responded with a court filing accusing Torres of overstepping in the investigation and setting out to publicly ridicule him. Following her investigation, which was conducted in concert with Sigler and the Indianapolis Metropolitan Police Department, Torres issued a report clearing Hill of wrongdoing, including clearing him of violations of Indiana’s ghost employment laws, but saying his “creepy” behavior at the 2018 sine die party was “well documented.”

“The IG Report tried to set the stage for this unsupported expansion of its authority by mischaracterizing its jurisdiction: ‘As the OIG has jurisdiction over wrongdoing in the executive branch of government, including criminal misconduct of state elected officials, the OIG opened an investigation into the allegations’ made by the legislators,” Hill’s legal team wrote, quoting a statement from Torres’ report and referencing the legislative leaders who asked her to investigate. “Contrary to the implication of this statement, the OIG does not have unrestricted jurisdiction to investigate ‘criminal misconduct of state elected officials’ without a nexus with the operations of state government. That investigative authority belonged to the special prosecutor, who discharged his responsibility, not the OIG.

“… The bulk of the IG report was a gratuitous and unauthorized take-down of the respondent (Hill) that fell outside the OIG’s legislative mandate.”

The bulk of Hill’s response to Torres’ motion to quash is based on the notion that the investigative records might be confidential, but they are not privileged. I.C. 4-2-7-8(b) says the IG’s investigative records “may” be kept confidential, but that provision is not equivalent to privilege, he argued.

“Public agency information that is confidential is off-limits to the general public, but not to parties in litigation unless it is also privileged,” he wrote. “Privileged information is off-limits not only to the general public, but to anyone not covered by the scope of the relevant privilege, including parties to litigation seeking relevant information through both party and non-party discovery.”

Similarly, Hill’s team said I.C. 4-2-7-8(c) “at most … purports to immunize the OIG from being subjected to discovery.” But the statute — which protects OIG documents from discovery absent a showing of particularized need and proof the information cannot be obtained elsewhere — “is merely a legislative declaration that the OIG’s resources should not be devoted unnecessarily to having to respond to non-party discovery in collateral litigation.”

“That is a very different consideration than protecting information as privileged,” Hill wrote.

What’s more, Hill’s defense argued the OIG has waived any protection to its investigative records through the release of its investigative report. Calling the report “an unauthorized foray into activity that is outside its legislatively created area of responsibility,” the defense noted the report disclosed the identities of the individuals who alleged wrongdoing.

“Just as any other non-party subject to discovery, the IG should not be able to pick and choose when to waive confidentiality and when to assert it,” the defense wrote. “If Subsection 8(c) protects the IG from discovery, she has waived it.”

Hill also used Subsection 8(c) to bolster his own argument, noting the provision “does not apply to ‘a person who is a party to an action brought by the inspector general.’” The public investigation report qualifies as an “action,” he argued.

Hill also submitted an affidavit from special prosecutor Sigler, who said he was in charge of the investigation and the “evidence gathered in the case and the witness statements taken were the work product of the Special Prosecutor investigation … .” Even so, Sigler said the Office of the Inspector General, not his office, holds the entire investigative record.

“As the duly appointed Special Prosecutor, I have no objection to the investigative file consisting of witness statements and interviews, recordings and notes of interviews and physical evidence that are part of the Inspector General’s file to be produced under discovery requests from any party in the disciplinary proceeding of Curtis Hill,” Sigler’s affidavit says.

Finally, Hill argued that even if Subsection 8(c) applied, he could overcome it. Specifically, he said the OIG provided a list of 60 witnesses — too many for his team to interview between now and his hearing in October. “Even if he could, he would never be able to know for certain what those witnesses told the investigators who assisted the OIG and the special prosecutor,” Hill’s defense team wrote.

Selby focused on this last point in her brief order denying Torres’ motion to quash.

“Respondent has made a showing of particularized need for the documents, information or objects and there has been no showing that the information cannot be obtained from another source,” she wrote. “Accordingly, the Inspector General is hereby ordered to produce the documents, information or objects set forth in Respondent’s Notice of Items sought from special prosecutor’s file held by the Office of Inspector General.”

Torres’ office released a statement Monday saying the office agreed with Selby’s decision because it aligned with Subsection 8(c).

“The court required compliance with the IG statute, which requires a third party to show a particularized need and proof they have no other source from which to obtain the information and requires a court to order disclosure,” the OIG said. “That was always our intent — to ensure that Attorney General Hill complied with the confidentiality statute.

“Our position is consistent with our history of holding investigative documents, including testimony, confidential,” the statement continues. “We are comfortable with this outcome.”

Indiana Lawyer has obtained a copy of the witness listed provided by the OIG. However, all of the names and contact information on the list have been redacted.

Selby also declined to recuse herself as hearing officer in Hill’s case despite the suggestion that she might need to do so to avoid a conflict of interest.

In another Friday order, Selby said an attorney involved with Hill’s disciplinary action expressed concern over the fact that a potential witness in the case works at Ice Miller, where Selby is a partner. That potential witness is David Long, the former president pro tem of the Indiana Senate, who was among the lawmakers who asked Torres to investigate Hill’s alleged misconduct. Long was also among the legislative leaders of both parties who called for Hill’s resignation.

Long left the Senate in November 2018 and took a position as a partner in Ice’s Public Affairs Group. Selby’s practice focuses on corporate internal investigations, appellate practice, compliance counseling, complex litigation, risk management, and strategic and other legal advice, according to the firm’s website.

“Based on this disclosure, the question of possible recusal or disqualification of the Hearing Officer based on this disclosure was discussed during a telephonic status conference on August 14, 2019,” Selby wrote. “No motion to recuse to disqualify was pending, however, the Hearing Officer indicated that she was considering the matter pursuant to applicable provisions of the Code of Judicial Conduct.

“The Hearing Officer set forth her analysis of the facts and circumstances involved, as well as the obligations and standards as set forth in Code of Judicial Conduct Rule 2.11. Counsel for both parties were heard,” she continued. “After due consideration, the Hearing Officer has determined that there is not a basis for disqualification or recusal.”

The disciplinary case is In the Matter of: Curtis T. Hill, Jr., 19S-DI-156.