Friday, May 28, 2010

New Attorney Disciplinary Commission Executive Secretary Takes Little Hatch Act Seriously

The new incoming Executive Secretary of the Attorney Disciplinary Commission, Michael Witte, is facing a complaint filed with his new employer for pointing out at a recent public meeting that two Dearborn County employees are violating the Little Hatch Act before he even starts his new job. The complaint is made by Dearborn County Commissioner Jeff Hughes against Witte, who serves as the county's attorney. Here's what a press release put out by Hughes says:
Dearborn County Commissioner Jeff Hughes announced today that he is "deeply troubled" that County Attorney, G. Michael Witte accused two county employees of violating the Hatch Act.

"It appears that our Attorney acted completely on his own and without the authorization of his client, the Dearborn County Board of Commissioners. I feel that he may not have done an adequate job researching the issue before he acted on it," Hughes stated.

In a public meeting on May 17, 2010, Witte accused two county employees, Bryan Messmore, Victim Advocate Coordinator of the Dearborn-Ohio County prosecutor's Office and Detective Shane McHenry of the Dearborn County Sheriff's Department of violating the Hatch Act.

"I am bringing this issue forward because of my concern and the concerns expressed by the citizens of Dearborn County regarding our attorney's conduct. I heard this issue was even brought forward by several members of county Council at its May 25, 2010 meeting," Hughes continued.

Hughes further stated that he "believes Mr. Witte may have possibly engaged in behavior that is within the jurisdiction of the Disciplinary Commission of the Supreme Court. I have requested an investigation to be conducted by the Disciplinary Commission and understand that any final determination is up to the Supreme Court."
According to the Indiana Law Blog, a May 10th press release from the Indiana Supreme Court announced Witte's appointment as the Disciplinary Commission's Executive Secretary. Witte, the first Asian-American to serve as a judge in Indiana, served as a superior court judge in Dearborn County for 23 years before becoming the county's attorney. His new job begins in mid-June. I'm assuming that he had not yet stepped down as the county's attorney when he raised his concerns about the possible Little Hatch Act violations. Hughes believes Witte owed a higher duty to the county commissioners, who apparently wanted Witte to keep his powder dry on the possible violations of the Little Hatch Act by the two employees.

The Little Hatch Act prohibits certain state and local employees whose jobs are funded in whole or in part with federal funds from engaging in partisan politics, which includes becoming a candidate for a partisan office. The City of Terre Haute endured lengthy litigation that went all the way to the Supreme Court in its last municipal election after the losing candidate belatedly raised a Little Hatch Act problem. If these two employees are on the November ballot, it would be extremely important that the issue of their qualification be determined sooner rather than later. Although the Little Hatch Act is a federal law, its prohibition is incorporated into Indiana's election statute for qualfications of candidates for state and local offices.

In the past, I've pointed out how a number of City-County Councilors in Marion County have flaunted the Little Hatch Act without consequence. As many as one-third of our current council is comprised of state and local government employees, although not all of those councilors have jobs funded in whole or in part with federal funds. I applaud Witte for taking the law seriously. Afer all, as attorneys, we take an oath to serve as officers of the court. We aren't suppose to condone violationing the law, even if that's what our client wants to do. A few years back, my City-County Councilor, Patrice Abduallah, had to resign his seat and drop his bid for re-election on the council after I disclosed on this blog that he did not live in his district. Later, I learned that Marion Co. Clerk Beth White knew when he filed his candidacy for re-election that he didn't live in his district because his statement of candidacy listed an address outside his district. Nonetheless, White kept quiet and allowed Abduallah to continue serving as an electd councilor and to seek re-election. White is also an attorney. As an officer of the court, not to mention the oath she took to faithfully administer her office, she owed a duty to the public to disclose Abduallah's violation of the law. She said it wasn't her job to raise the issue; rather, someone else had to file a complaint. I'll take public servants who think like Witte over White any day.

UPDATE: The Indiana Legislative Insight is also reporting today that Witte also notified the Office of Special Counsel with the Justice Department of the possible violations. Quoting from Witte's letter to the OSC, the newsletter writes:

In my capacity as County Attorney for the Dearborn County Board of Commissioners, and on their behalf, I must advise you that Dearborn County, Indiana might be out of compliance with several federal grant contracts of which we are the recipient. Specifically, I believe we are non-compliant with the Hatch Act provisions of several grants. It is the intent of this self-reporting letter to notify you of our internal review and to let your office act accordingly.
The letter went on to detail those concerns according to ILI.

UPDATE II: Eagle Country 99.3 FM in Dearborn County has more on the story. That story reads in part:

County Attorney Mike Witte shocked everybody at the Dearborn County Commissioners meeting on Monday, saying that Republican county commissioner candidate Shane McHenry may be in violation of the Hatch Act of 1939. McHenry is a detective with the Dearborn County Sheriff's Office, but works under the Dearborn County Special Crimes Unit which receives federal funding.


Bryan Messmore, a county councilman who works with the Dearborn County Prosecutor's Office as a victim advocate coordinator, was a second name listed in a letter Witte submitted to the U.S. Office of Special Counsel on Monday.

That federal office's Hatch Act Unit may deliver an opinion once the matter has been investigated.
This story includes the full text of Witte's letter to the OSC, which reads as follows:

Ms. Carolyn S. Martorana

Attorney, Hatch Act Unit
U.S. Office of Special Counsel
1730 M Street, N.W. Suite 218
Washington, D.C. 20036

Re: Request for Hatch Act inquiry or advisory opinion

Dear Ms. Martorana:

In my capacity as County Attorney for the Dearborn County Board of Commissioners, and on their behalf, I must advise you that Dearborn County, Indiana might be out of compliance with several federal grant contracts of which we are the recipient. Specifically, I believe we are non-compliant with the Hatch Act provisions of several grants. It is the intent of this self-reporting letter to notify you of our internal review and to let your office act accordingly. I understand that the act of questioning election candidacies does not rest within our authority, but rather with the Office of Special Counsel and the U.S. Merit Systems Protection Board, or with our state election board and judicial review process.

The purported non-compliance scenarios are outlined below. I ask for the Office of Special Counsel to conduct inquiries and/or issue advisory opinions.

I. Victims of Crime Act (VOCA), Grant #09VA023, $80,116.00

Recipient: Dearborn County Government
Beneficiary: Dearborn-Ohio Counties Prosecutor's Office
Hatch Act Employee: Bryan Messmore, Dearborn-Ohio Counties Prosecutor Victim Advocate Coordinator and Dearborn County Council member

Mr. Messmore's salary and benefits totaling $50,988.0 are funded by a VOCA grant awarded through the Indiana Criminal Justice Institute. In late 2009 or early 2010 Mr. Messmore was elected to the Dearborn County Council through a special election. The election was by a caucus of the Republican Party Central Committee to fill a mid-term vacancy caused by an incumbent councilman resigning his office. Mr. Messmore competed in a contested election with at least two other candidates, a Mr. Schmitts and a Mr. Baker.

During this election process, Mr. Messmore was a full-time employee of the Dearborn County Prosecutor's Office whose salary was funded by a federal grant. Mr. Messmore continues to serve the dual role of councilman and Victim Advocate Coordinator under VOCA funding. He is a local officer or employee whose principal employment is in connection with an activity which is financed in whole or in part by loans or grants made by the United States or Federal agency.

II. 2009 Recovery Act JAG Subgrantee, Grant #09-JRA-005, $174,673.00

2009 Recovery Act Edward Byrne JAG, Award #2009-SB-B9-0261, $57,951.00
2009 Edward Byrne JAG , Application #2009-H1473-DJ, $14,372.00
Recipient: Dearborn County Government
Beneficiary: Dearborn-Ohio Counties Prosecutor's Office Special Crimes Unit
Hatch Act Employee: Shane McHenry, Detective for Dearborn-Ohio Counties Prosecutor's Office Special Crimes Unit

In January of 2006, the Dearborn-Ohio Counties Prosecutor's Office in conjunction with the Dearborn County Sheriff's Department, the Lawrenceburg Police Department, and the Aurora Police Department formed a multi-jurisdictional task force to address serious felony crimes in Dearborn County, Indiana. Operating under the name of the Dearborn County Special Crimes Unit (SCU), it is comprised of three detectives from the Dearborn County Sheriff's Department, one detective from the Lawrenceburg Police Department, one detective from the Aurora Police Department, and two investigators from the Dearborn-Ohio Counties Prosecutor's Office.

Detective Shane McHenry is one of the three detectives of the Dearborn County Sheriff's Department assigned to this SCU. Although his pay is routed through the Sheriff's Department, he is assigned to the SCU and is viewed by many as the lead detective for the unit.

Mr. McHenry was a candidate in the May 4, 2010 Republican primary election for the office of Dearborn County Commissioner. Mr. McHenry won the election over two other candidates, a Mr. Thompson and a Mr. Rowland. He is now the Republican candidate for County Commissioner in the fall election. During this election process, Mr. McHenry was a full-time employee of the Dearborn County Sheriff's Office assigned to the SCU which was funded by at least $246,996.00 in federal grant money. Mr. McHenry continues to work for the SCU and act as the Republican candidate for County Commissioner for the November 2, 2010 general election. His campaign material referenced himself as a "Detective for ... Special Crimes Unit". He is a local officer or employee whose principal employment is in connection with an activity which is financed in whole or in part by loans or grants made by the United States or Federal agency.

After June 18, my contact information will change to the following:

G. Michael Witte, Executive Secretary
Indiana Supreme Court Disciplinary Commission
30 South Meridian Street, Suite 850
Indianapolis, IN 46204

I will no longer be serving as Dearborn County Attorney, but I will be available for any discussion on these issues if necessary. Attached to this letter is contact information if needed. Thank you for your attention to this matter.

Respectfully,

G. Michael Witte
Dearborn County Attorney

2 comments:

dcrutch said...

I agree with you most of the time, Gary. But, I think a majority of fed-up America would see an ethical murkiness in one aspect of this. How do attorneys reconcile counseling illegal immigrants (sometimes for profit), with: "White is also an attorney. As an officer of the court, not to mention the oath she took to faithfully administer her office, she owed a duty to the public to disclose Abduallah's violation of the law." What's the big ethical difference we're to see in what White did as an attorney versus counseling illegal immigrants?

Not everybody needs to hire cheap labor or receive government benefits, yet all working citizens pay for both in higher costs and taxation. The incensed majority that thought health care “reform” was too partisan and corrupt is also not happy with the abuse of our infrastructure- by citizens and non-citizens alike.

Believe me, I don't want to have to settle for a plumber when I need a lawyer- and would like an ethical one. I agree that illegal immigrants coming here seeking a better life are also preyed upon. But, how more or less "partisan politics" is not putting citizenry first?

Advance Indiana said...

There's nothing to be reconciled. Counseling illegal immigrants is no different than providing counsel to any criminal defendant. The line is drawn at aiding the client in breaking the law. Providing counsel to a criminal defendant is the job of the attorney. In White's case, she is the county's chief elections officer. You don't think she has an obligation to conduct fair and honest elections? She effectively aided Abduallah in breaking the law by not initiating action on her own. It wasn't her job to act as his personal lawyer. That was the problem we had with Aaron Haith. He was trying to act as Monroe Gray's personal attorney at the same time he served as the counsel's council when Gray served as its President.