One Treasury, Multiple Elected Officials – Things Get Murky

Marilyn Odendahl, writing for the Indiana Lawyer, has an article on the latest maneuverings in the Curtis Hill sexual harassment case. The Indiana House of Representatives and Senate have fi

led motions to use their own counsel and to intervene in the lawsuit. The Plaintiffs have sued the State of Indiana and the Attorney General to answer for their acts and omissions with respect to Hill’s alleged groping and the response by the various parts of state government. The Plaintiffs have sued the state as a whole which makes some sense but which also puts the House and Senate in a bind. They may or may not have done enough, but their culpability seems to be a lot less obvious than Hill’s based on what we know at the moment, and while there are some checks and balances, the General Assembly does not have the ability to directly alter the Attorney General’s behavior in an employment context. With a normal corporation, if one employee is mistreating another employee, there is going to be a Board of Directors or some ultimate authority who can take corrective action. With a governmental entity, you have multiple elected officials connected by one treasury but no ultimate authority to oversee them.

Additionally, the fact that the Attorney General is responsible for defending them under normal circumstances creates an obvious conflict in this case. Because Hill is personally involved, it could create a situation where short-changing the legislature’s defense strengthens his own. From the Indiana Lawyer article:

The briefs supporting the House’s motion and Senate’s motion argue that as the employers of [the plaintiffs, the legislative]  chambers are the proper defendants in the Title VII claims. . . . Also, in a footnote, the House and Senate claim they have Article III standing. They assert if the plaintiffs are awarded monetary and injunctive relief on their Title VII claims, they would suffer injury-in-fact because they would be responsible for the compensatory damages.

Relatedly, the House and Senate argue they have a sufficient interest and should be allowed to intervene since they could be liable under Title VII. However, both chambers seek to distance themselves from Hill’s alleged misconduct by maintaining they are liable only if they were negligent in responding to the harassment. Also, they assert they have no control over the Attorney General because he is an elected official of the executive branch and not an employee of the Legislature.

Having one defendant pointing fingers at another defendant can often be useful for a plaintiff. It’ll be interesting to see how much the legislative chambers’ motions to intervene are contested and how the court sorts it out.