AG Rokita’s arguments in disciplinary case could hurt him in moonlighting dispute

By Marilyn Odendahl

The Indiana Citizen

October 23, 2023

To support her argument that the advisory opinion about Indiana Attorney General Todd Rokita’s previous employment should be made public, Barbara Tully is drawing from Rokita’s response to the disciplinary complaint against him.

Tully presented her arguments in a reply brief she filed Oct. 18 with the Court of Appeals of Indiana. Although Rokita has said the Indiana inspector general’s advisory opinion exonerates him, he is fighting its release by maintaining the document is confidential under state law.

However, Tully is recycling the attorney general’s defense to a disciplinary case he faces before the Indiana Supreme Court. Tully asserts confidentiality has been waived in her case, too, because Rokita gave details about the advisory opinion.

The attorney general has been charged with violating attorneys’ rules of professional conduct by breaching confidentiality and speaking publicly about his office’s ongoing investigation into Dr. Caitlin Bernard, an Indianapolis OB/GYN. Bernard caught Rokita’s attention in the summer of 2022, after The Indianapolis Star reported she had performed an abortion on a 10-year-old Ohio rape victim.

As a defense, Rokita asserted he did not break confidentiality. He said Bernard first violated patient privacy laws by speaking to the newspaper and he was just responding to her actions.

“In deciding the waiver question, this Court should take into consideration Rokita’s argument in the recent disciplinary complaint against him that a physician his office was investigating had waived her right to confidentiality under Indiana law by disclosing only limited information about her patient,” Tully states. “This Court should apply a similar broad waiver-of-confidentiality standard here that Mr. Rokita urges be applied to that physician.”

Tully asked that the appellate court uphold the trial court’s ruling in her favor and find that Rokita “abused his discretion by arbitrarily and capriciously refusing to allow Tully to inspect and copy the IG opinion even after claiming it exonerated him of violating the ethical obligations Indiana law imposes upon public officials related to their outside interests and employment.”

Filed in the summer of 2021, Tully’s lawsuit is tied to the controversy over a job Rokita had kept with Apex Benefits, after he was sworn in as attorney general in January 2021. When the media questioned Rokita’s moonlighting, the attorney general’s office said the inspector general had found no ethical wrongdoing.

 Before his election, Rokita had worked as a general counsel and vice president of external affairs at Apex. He continued working at the company after his inauguration and had requested that the inspector general’s office review any potential conflicts of interest. He didn’t leave the health care brokerage firm until several months after his swearing-in.

The Marion County Superior Court later found advisory opinions were public documents. While Rokita was ordered to release the report, the court allowed him to redact as much as he wanted.

Instead, Rokita took two steps to keep the report private. First, he appealed the trial court’s ruling. Second, he convinced the Indiana General Assembly to slip a provision into the law that explicitly stated advisory opinions from the inspector general were confidential.

In her reply brief, Tully argues Rokita waived confidentiality by making the “specific public announcement” that the opinion exonerated him. She acknowledges Rokita’s argument that his public statement did not contain any specifics about the opinion, but she counters by arguing that a public announcement cannot get any more specific than one that says “an opinion of an ethics watchdog agency completely exonerated him.”

Tully also asserts Rokita’s legal arguments in his brief directly contradict the legal position he had taken in response to the disciplinary complaint.

“It was Rokita who chose to go public with the IG’s opinion, and it was he who elected to characterize that opinion as a total exoneration,” Tully says in her reply brief. “This Court should hold that in doing so he waived any right to keep that opinion hidden from both Tully and the public at large.”

The case is Theodore Edward Rokita v. Barbara Tully, 23A-PL-705.

Dwight Adams, a freelance editor and writer based in Indianapolis, edited this article. He is a former content editor, copy editor and digital producer at The Indianapolis Star and, and worked as a planner for other newspapers, including the Louisville Courier Journal.

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