By Marilyn Odendahl

The Indiana Citizen

July 24, 2023

Indiana Attorney General Todd Rokita is arguing that an amendment crafted by his office and passed in the closing hours of the legislature’s 2023 session erases his loss and gives him the win in his ongoing court battle to keep a report about his previous moonlighting gig from the public eye.

Rokita has been fighting a lawsuit seeking the disclosure of an informal advisory opinion issued in early 2021 by the Office of the Indiana Inspector General. The opinion, according to Rokita’s office, found he was not violating any ethical standards by continuing to work as a consultant at Apex Benefits, a private company, while also serving as Indiana’s top lawyer.

However, the attorney general has resisted requests to make the opinion public, asserting the inspector general’s report is exempt from Indiana’s open records law. The Marion County Superior Court ordered Rokita to release the opinion but he responded by turning to the Court of Appeals of Indiana in March.

Between filing his notice of appeal and submitting his brief in Theodore Rokita v. Barbara Tully, 23A-PL-00705, to the appellate court Wednesday, Rokita was able to codify his argument. In April, the legislature inserted into state statute a provision his office had written which declared all informal advisory opinions, including previously issued ones like Rokita’s, are confidential.

“Recently, Indiana’s General Assembly passed a statute that categorically states the IG has the statutory authority to issue confidential IG Opinions on a retroactive basis,” Rokita argues in his brief. “…By making confidentiality retroactive, this statute also completely resolves this case in AG Rokita’s favor.”

During the debate in the Statehouse, Rep. Matt Pierce, D-Bloomington, raised concerns that the legislature was upsetting the balance of powers and stepping onto the judiciary’s territory. He saw the retroactive language as a clear attempt to end the lawsuit against Rokita.

The attorney general asserts the court may consider the newly-enacted statute while an appeal is pending. In his brief, he contends that decisions from the Indiana Supreme Court align with precedent from the Supreme Court of the United States that holds the separation of powers is not violated if the legislative branch acts before the highest authority issues a final ruling on the appeal.

 “Therefore, Indiana law permits courts to consider a retroactive statute that became effective during the pendency of an appeal, unless it would require a change in a final judgment,” the attorney general’s brief states.

Tully, a resident of Marion County, asked to see a copy of the inspector general’s opinion in February 2021 after the attorney general’s office claimed in a newspaper article that Rokita’s outside employment was found to be “squarely within the boundaries of the law and do not conflict with his official duties.” When Tully was turned down, she filed a lawsuit asserting Rokita was violating the Indiana Access to Public Records Act.

The trial court agreed the inspector general’s opinion is a public document but gave Rokita the option of redacting as much as he wanted before releasing it. After entering into a $250,000 contract with the nationally-known attorney James Bopp and The Bopp Law Firm, Rokita’s office assigned Bopp and his team to the Tully appeal.

Rokita’s brief, written by Bopp and his associates, argues upholding the lower court’s ruling would have an impact beyond the current case. Affirming the order from the trial court would undermine the inspector general’s “critical role” of advising state employees on questions of ethical conduct and policies.

“AG Rokita does not argue that he is exempted from complying with the ethics statute concerning outside employment,” his brief states. “To the contrary, AG Rokita respects the ethics requirements so much that he sought advice to help him make the best decision possible regarding his outside employment. This is exactly the type of behavior both the ethics statute and the IG’s Rules encourage.”

Questions of statutory authority

Before the Court of Appeals, Rokita also contends the Marion Superior Court erred and that even before the new language was amended into the statute, the inspector general’s informal opinions were confidential.

According to Rokita’s brief, the inspector general adopted rules establishing the Indiana Code of Ethics, 42 Indiana Administrative Code 1-8, in 2005. Rule 8 in the ethics code holds that informal advisory opinions shall be considered confidential under the deliberative-materials exception of the Indiana Access to Public Records Act.

“…confidentiality is critical to facilitate openness and to encourage state actors to seek ethics advice from the IG in real time,” Rokita’s brief argues. “Stripping informal advisory opinions of confidentiality would thus undercut the important work of the IG, be contrary to the General Assembly’s intent to foster good government, and run afoul of the plain language of APRA’s deliberative-materials exemption.”

In the trial court’s ruling, Judge Kurt Eisgruber held that Rokita’s reasoning would allow the inspector general to exceed its statutory authority and create a “work around” of the open records law for state employees.

Eisgruber found that while Rule 8 “expressly references” the confidentiality exception to the open records law, it is “not harmonious” with Rule 5 which recognizes the statutory authority of the Indiana Ethics Commission to address matters of outside employment. Consequently, the judge ruled, the commission has exclusive purview over questions about moonlighting and its opinions are subject to Indiana’s public records act.

Rokita counters that the commission has the authority to issue a conclusive opinion but it does not have exclusive authority to advise on questions regarding outside employment. Along with investigating wrongdoing in state government and creating policies to deter misconduct, the inspector general has been mandated by the legislature to provide advice to agencies to prevent wrongful acts.

“The plain language of this statutory authority does not exclude outside employment, and certainly, the IG’s ability to offer an informal advisory opinion to a state officer who asks for guidance on any ethical questions, including one concerning outside employment, is in line with carrying out its duty to deter wrongdoing and misconduct,” Rokita argues in his brief.

Judicial sneak peek

Rokita did not oppose Tully’s motion for the appellate court to see the unredacted inspector general’s opinion.

Tully, represented by Bill Groth of Vlink Law Firm in Indianapolis, cited precedent in asserting that an in camera review by the Court of Appeals is a requirement of due process.

Under the directions from the June order signed by Chief Judge Robert Altice, Jr., Rokita had to submit a copy of the opinion by July 19 in a sealed envelope marked, “Confidential. Cannot be accessed by the public or Appellee-Plaintiff Barbara Tully.” Also, the order prohibited the clerk of the appellate court from scanning the opinion or making it accessible in MyCase, the online docket system.

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