Marion County Judge Dismisses Criminal Charges Against Former IURC Chairman David Hardy

Marion Co. Superior Court Judge Bill Nelson dismissed official misconduct charges brought against former IURC Chairman David Hardy by Marion Co. Prosecutor Terry Curry. The charges stemmed from Hardy's failure to disclose secret meetings he conducted with Duke Energy executives concerning rate increase cases pending before the IURC and assisting the IURC's former chief legal counsel, Scott Storms, in obtaining a job with Duke Energy in violation of state ethics rules. The Indianapolis Star does not provide Judge Nelson's actual order dismissing the charges against Hardy, and the explanation provided in the story is not at all clear. Here's how the Star's John Russell described Judge Nelson's order dismissing the charges:

Superior Court Judge William Nelson scolded Hardy for “betraying the trust” of Indiana citizens and engaging in “reprehensible” conduct.

But he largely accepted Hardy’s defense that he was charged unfairly, because there were no underlying criminal charges, aside from the official misconduct charges.

Judge Nelson noted that the Indiana inspector general’s office found a defect in the official misconduct statute in September 2010 — three months before Hardy was charged — and recommended that the legislature clarify and amend the law.

The Indiana General Assembly changed the law effective July 1, 2012, to require it apply to a public servant who “knowingly or intentionally commits an offense” in the performance of his duties.

The original official misconduct statute made it a Class D felony for a public official to "knowingly or intentionally perform an act that the public servant is forbidden by law to perform." It was amended in 2012 to read: "A public servant who knowingly or intentionally . . . commits an offense in the performance of the public servant's official duties . . . commits a Class D felony. The term "offense" is defined elsewhere to mean a crime. Presumably, the change the legislature made last year got Hardy off the hook because the underlying acts that he performed, while prohibited by law, were not deemed a crime. If the public official committed an underlying crime, he could be charged under the statute; otherwise, the statute is toothless.

The legislature seems to be signaling to public officials that we don't care if you knowingly or intentionally violate the laws we pass in the performance of your duties, as long as you don't do it while you're committing some other crime. The only purpose it now serves is to escalate the underlying crime if it was performed during the official's "official duties." For example, it allowed the Hancock Co. Prosecutor to charge former Coroner Tamara Vangundy under the statute because she was performing her official duties as coroner when she was arrested for drunk driving. Curry filed the charges against Hardy under the old statute. It would seem that Judge Nelson chose to retroactively apply it to his benefit. It's not clear yet whether Curry's office will appeal the decision.

The legislator who authored David Hardy's get-out-of-jail free card was Sen. Richard Bray (R-Martinsville), an attorney by trade who retired from the legislature last year after serving one too many years in the Senate. The only lawmaker who voted against the bill in either house was Rep. John Bartlett (D-Indianapolis).

UPDATE: The Star has updated its story with this further explanation of why Judge Nelson chose to apply the law retroactively:

The judge ultimately ruled that because none of those allegations constituted a criminal act, Hardy could not be charged with the crime of official misconduct.

The issue of whether Indiana law allowed allegations of a noncriminal rules violation to be used as the basis for a criminal charge of official misconduct was first raised by the Indiana inspector general three years ago — before Hardy was charged with a crime.

At the inspector general’s urging, the General Assembly clarified the law, effective in 2012, to require charges of official misconduct to be based only on criminal acts . . .

But he said he put much weight in a report issued Sept. 7, 2010, by Indiana Inspector General David Thomas, who said he found a defect in the public misconduct law. The defect was that even noncriminal behavior, such as violating a noncriminal procedural rule, could amount to a violation of the law.

Thomas recommended that the General Assembly change the language, requiring that a charge for misconduct “must rest upon criminal behavior that is related to the performance of official duties.” The General Assembly changed the law, effective July 1, 2012, to reflect that.

Nelson said the legislature’s quick action to clarify the law “is indicative of the legislative intent to apply the amendment retroactively.”

The bottom line is that if you want corrupt public officials prosecuted, you require a federal prosecutor who is willing to use much stronger federal criminal statutes to bring them to justice. The Indiana legislature has written virtually every criminal statute which applies to public corruption matters in such a way that it renders them useless to prosecutors. Nobody expected U.S Attorney Joe Hogsett to go after IURC officials for hopping into bed with Duke Energy given his close relationship with several of its top executives and lobbyists. The question many are asking is when will Gov. Pence get rid of David Thomas as the state's inspector general. The man is quite clearly more interested in covering up public corruption than rooting it out.

UPDATE II: Here's an additional thought. The Supreme Court interprets the official misconduct statute to require some underlying criminal offense in connection with the public servant's official duties. In this case, Hardy is accused of aiding Scott Storms in violating the state's conflict of interest statute to obtain employment with Duke Energy while adjudicating cases involving the public utility. There is a separate criminal statute for conflicts of interest involving public officials. The state could have charged Hardy with aiding Storms in violating the criminal conflict of interest statute. The Supreme Court in Dugan v. State held that it was not necessary that the state bring criminal charges under the separate underlying criminal statute; rather, it could choose to bring the charge under the official misconduct statute as long as there was an underlying crime committed under another statute. I should add that, not only was Storms not charged with a crime, the Attorney Disciplinary Commission initiated no complaint against him despite the state ethics commission finding that he had violated the state's conflict of interest laws by negotiating a new job with Duke while acting as an adjudicative officer for the state's regulatory agency in matters pertaining to Duke. Quite remarkable when you think about it. Breaching a duty owed to one's client is typically considered a serious matter.