By Marilyn Odendahl
The Indiana Citizen
May 5, 2023
A 56-word provision authored by the Indiana Attorney General’s office and dropped late into the biennial budget bill appears to be an attempt to short circuit a lawsuit aimed at forcing Attorney General Todd Rokita to turn over a report about his former employment with Apex Benefits.
The provision states that informal advisory opinions from the Indiana Office of the Inspector General to current, former or prospective state employees and officials are confidential. The language then goes a step farther by including a retroactive clause that makes advisory opinions previously issued by the inspector general private.
The lawmaker who initially introduced the provision said he did not know the backward-reaching clause could potentially upend a lawsuit Rokita is fighting in state court. The attorney general is trying to keep from the public an inspector general’s report that he claims exonerates him of any ethical violations from continuing to work as a strategic policy advisor for Apex after he was sworn in as Indiana’s top lawyer.
Marion County Superior Court Judge Kurt Eisgruber has ordered Rokita to release the report, although the court did allow him to redact as much as he wanted. Instead, the attorney general appealed, and his office has recently contracted with Republican powerhouse attorney James Bopp to handle this matter.
Rep. Matt Pierce, D-Bloomington, said he agrees with the policy goal of making the inspector general reports confidential in order to encourage state workers to seek guidance on any moonlighting they do. However, he sees the retroactive language pretty clearly trying to void the lawsuit against Rokita.
“I think that’s unfair, and as I pointed out on the House floor, that only people with access to the legislature at a pretty high level are able to get those provisions into bills,” Pierce told The Indiana Citizen. “So your average people on the street litigating their issues, they don’t have the ability to come to the legislature and say, ‘Hey win my lawsuit for me by changing the law.’”
The attorney general’s office did not respond to a request for comment.
Senate President Pro Tem Rodric Bray’s office said the provision was needed to clarify the law that informal advisory opinions are confidential.
“This issue first came to light because of the situation involving the Attorney General, but legislators decided that clarifying the existing law was warranted because the legal questions potentially affect every single state government employee now and in the future,” Molly Fishell, spokeswoman for Bray, said in an email. “Until recently, there was never a question that the Inspector General’s informal advisory opinions were confidential – in fact, the IG Informal Advisory Opinion request page states that such opinions are confidential. Therefore, the language passed in the 2023 session is seeking to maintain the status quo that has existed for years.”
Not receiving all the facts
Sen. Ron Alting, R-Lafayette, offered the provision as an amendment to Pierce’s bill, House Enrolled Act 1256, which updates the requirements for the administration of state archives and records. Alting said the attorney general’s office crafted the amendment and asked him to carry it as a Senate sponsor of Pierce’s bill.
Along with the informal advisory opinion language, the amendment included two other sections. One allowed the attorney general’s office to retain and publish its advisory opinions in electronic format rather than printing and binding them in a book. The second section added a few standards for creating and revising state forms.
In introducing the amendment, Alting read from the talking points the attorney general’s office had provided. He told his Senate colleagues the provision would make informal advisory opinions confidential but did not mention the clause was retroactive and would possibly upend ongoing litigation.
Alting said the attorney general’s office did not tell him or his legislative assistant about the lawsuit against Rokita. If he had known, the senator said, he would not have offered the amendment.
“I had no idea of any consequences, pending or otherwise, what that amendment did or I would have never offered it,” Alting told The Indiana Citizen. “…Obviously, I feel like I did not receive all the facts from the AG’s office.”
The amendment passed on a voice vote in the Senate. When HEA 1256 returned to the House, Pierce filed a dissent and in conference committee was able to get the provision removed. Rep. Matt Lehman, R-Berne, chair of the committee, said while he agreed with the language of the provision, he thought it was better suited for “some other places.”
Next, the provision appeared in HEA 1001, the biennial budget bill. The language is not in the engrossed version of the budget indicating it was added through the conference committee report. Alting said he did not push to have the language inserted into the budget bill.
Sen. Ryan Mishler, R-Mishawaka, did not respond to a request for information about who inserted the provision into the budget.
Pierce called attention to the amendment during the House’s final debate shortly before the members voted to pass the budget bill. He explained Rokita was embroiled in a lawsuit and the retroactive clause, the representative said, would moot the litigation. Instead, he continued, the legislature should wait for the court to issue a final ruling then decide if the state law needs to be changed.
“I would not have objected to the provision if it was not retroactive – if it only applied from the passage of the bill forward – because I think that there is a policy argument for it,” Pierce told The Indiana Citizen. “This seems pretty clearly to me an attempt to block the lawsuit that might cause this opinion, which was issued to the attorney general, to become available to the public and then people could see what it had to say.”
However, Bray’s office asserted the state had to ensure the privacy of the informal advisory opinions.
“Confidential inquiries to the Inspector General are a key component of advising and guiding all current and former state employees to act in an ethical and legal manner,” Fishell said. “If the opinions weren’t confidential, it could result in fewer people seeking that guidance and therefore not have the benefit of that perspective as they make decisions that could be ethically complicated.”