HB 1002 – Inspector General

Since it has been cited as one of the main reasons for the Democratic walkout last week that killed a gross of bills (give or take), I thought I’d take a look at the inspector general portion of House Bill 1002.

As written, the Inspector General (IG) would be an attorney appointed by the Governor and serve entirely at his pleasure. The salary of the IG would be set by the Governor and approved by the budget agency, but could not be reduced while a particular IG was in office. He would be responsible for addressing fraud, waste, abuse, and wrongdoing in agencies; would be required to initiate, supervise, and coordinate investigations (presumably with regard to waste in the agencies of state government, but no limitation is specified) and recommend policies and carry out activities designed to “eradicate” fraud, waste, abuse, mismanagement, and misconduct in state government. He would also be required to receive complaints concerning the code of ethics he is required to create as well as complaints concerning bribery, official misconduct, conflict of interest, profiteering from public service, or violating executive branch rules or purchasing rules. (Again, one presumes that his purview would be limited to state government, but no such limitation is contained in that section of the statute.)

In the course of an investigation, he can take testimony, issue subpoenas and issue requests for production of documents. There is no indication as to whether these powers are limited by the Indiana Trial Rules as I believe most other subpoena power is — though the IG’s remedy is to apply to a court for a contempt citation if someone fails to comply with a subpoena. I don’t know if a recipient of a subpoena would be entitled to apply to the court for the subpoena to be quashed in appropriate circumstances (say, if the information is privileged or the request is unduly burdensome) or if the IG would be required to reimburse the recipient of the subpoena for the costs of complying with the subpoena.

If the IG decides, in his ultimate wisdom, that there has been a violation of the Code of Ethics he creates, he is supposed to file a complaint with the ethics commission. He can then either prosecute the ethics violation before the commission (for whom the IG provides rooms and staff, incidentally) or negotiate a settlement and apply to the ethics commission to rubber stamp its approval.

If the IG decides that there has been misconduct that has resulted in financial loss to the state or unlawful benefit for an individual in the conduct of state business, the IG can file a report with the Attorney General. If, after 180 days have passed, the Attorney General decides not to file a civil suit, then he is required to refer the matter back to the IG who gets a second crack at filing the civil suit himself. (Interestingly enough, the way the statute is written, if the Attorney General recovers the lost money without ever filing a civil suit, the IG is still permitted to proceed with suit. Obviously, the defendant would have a pretty good shot of prevailing in that circumstance.)

If the IG decides there has been criminal activity, he is required to file a report with “the appropriate prosecuting attorney.” I don’t see that the IG’s prosecutorial powers are limited to misconduct by state employees. I think public misconduct at the local level can be prosecuted by this appointee of the governor. If the prosecuting attorney decides to proceed with criminal charges, he can have the IG prosecute the case. If the elected prosecutor exercises his discretion and decides not to prosecute the case, the IG can then go to the governor and ask to be appointed as special prosecutor. If the governor agrees, he asks the Supreme Court to appoint an appellate court judge foreign to the district in which the crime was allegedly committed. The prosecuting attorney to whom the case was originally submitted must file a response either for or against the IG’s appointment as special prosecutor. The prosecutor is apparently not permitted to take no position on the issue. The appellate court judge is then required to determine whether the IG should be appointed as special prosecutor. The IG is required to get a grand jury indictment to bring charges. An attorney in the IG’s office can serve as a deputy prosecutor on the case. The identity of the person who files an accusation with the IG is required to be kept secret, even from the person being charged with wrongdoing.

The term “law enforcement agency” as used in parts of the Indiana Code is amended to include the IG’s office.

Just a thought, and I’m probably wrong, but I wonder if the IG’s prosecutorial powers are even Constitutional. Article 3, Section 1, specifies that the powers of government are divided into executive, legislative, and judicial and that no person charged with duties of one department shall exercise any of the functions of the others except as the Constitution specifically provides. Near as I can see, the prosecutorial function of government is set forth in the judicial section of the Constitution. (Article 7, Section 17 – 18.) The IG is very clearly a creature of the executive branch.