MOONLIGHTING: ROKITA FIGHTS COURT ORDER TO RELEASE REPORT ON HIS PRIVATE EMPLOYMENT — EVEN THOUGH IT ALLOWS HIM TO REDACT AS MUCH AS HE WANTS.

The following report was written for The Indiana Citizen by veteran Indiana legal journalist Marilyn Odendahl.

March 9, 2023

One day after being sworn in as Attorney General in January 2021, Todd Rokita asked a state watchdog agency, the Office of the Inspector General, for an opinion on his continued employment by his latest employer, Apex Benefits.

Three days later, the IG issued its opinion, which Rokita said found no ethical violations with the private sector employment.  Rokita nevertheless quit the Apex job, and more than two years later, refuses to release the opinion and is using attorneys on his staff to fight litigation filed to force its disclosure.

His refusal continues despite a court order and even though it allows him to black out as much of the inspector general’s report as he chooses.

Rokita was ordered Feb. 27 by a Marion County Superior Court judge to make the report public. However, the final order in Tully v. Rokita, 49D06-2107-PL-025333 granted the state’s top attorney a free hand in redacting the report.

Now, the fight is poised to persist as both sides have indicated they are prepared to take the case to the Indiana Court of Appeals.

Speaking to The Indiana Citizen, Zachary Baiel, president of the Indiana Coalition for Open Government, questioned why the attorney general would make the effort to get the inspector general’s opinion and then not release it to the public. He speculated that although Rokita has said the report found no wrongdoing, the actual findings may be more nuanced by including some caveats or recommendations to ensure no ethical violations.

The purpose for making the report public is not for a “gotcha,” Baiel said but rather to allow the voters to know what their public officials are doing. He added that some voters may see private sector employment as a way for politicians to stay connected to their communities and better address their constituents’ needs.

“It helps inform people,” Baiel said of the report. “It’s important to have these inspector general opinions out there so voters have the knowledge and can apply whatever calculus they want in deciding if an elected official is worthy of their vote.”

Rokita’s request to moonlight

In February 2019, Rokita – then a private citizen – went to work for Apex Benefits, Indiana’s largest advisory firm focused on employee benefits, as general counsel and vice president of external affairs. Following his landslide victory in November 2020, Rokita was sworn in as attorney general on Jan. 11, 2021, but retained his job as a strategic policy advisor at Apex.

On Jan. 12, Rokita asked the Office of the Inspector General to review whether his job in the private sector posed any ethical problems. Rokita received the opinion January 15, three days after he requested it and one day after former Inspector General Lori Torres had joined Rokita’s office as chief deputy attorney general and chief of staff. The attorney general’s office claimed Torres “was not involved whatsoever” with the informal opinion.

Publicly, the attorney general’s office stated Rokita had received an opinion that indicated “his interests and outside employment are all squarely within the boundaries of the law and do not conflict with his official duties.”

Yet when asked for a copy of the opinion, Rokita repeatedly refused.

Enter Barbara Tully

Barbara Tully is a retired banker and founder of Indiana Vote By Mail, a nonprofit “dedicated to making sure all Hoosiers are represented equally during the voting process.”  She sent a letter to the attorney general’s office asking for a copy of the informal advisory opinion and when she received no reply, she filed a complaint with the Indiana Public Access Counselor Luke Britt.

Britt was not able to review the opinion but in taking a close look at the Indiana Administrative Code and state statute, he determined the report was covered under almost contradictory provisions. While the inspector general must keep the informal opinion confidential, Rokita has the discretion to make it public.

The attorney general continued to exercise his discretion by refusing to release the report.

Tully conferred with Indianapolis attorney William Groth, of counsel at Vlink Law Firm who has represented her in other cases, and they mutually agreed to file the lawsuit.

Tully’s lawsuit 

In her complaint filed in July 2021, Tully argued that since the attorney general’s office publicly disclosed the “essence of this alleged report,” the defendant has waived any privilege to keep it secret. The case wound through the Marion County Superior Court and eventually approached a conclusion when Tully filed a motion for summary judgment and Rokita responded with a cross-motion for summary judgment.

On Jan. 3, 2023, Judge Kurt Eisgruber found for Tully and ordered Rokita to submit a redacted copy of the report.

However, Eisgruber, who had reviewed the opinion in private, permitted the attorney general to practically redact at will. The court’s order did not include any limits on what and how much could be marked out from the inspector general’s report.

When Tully filed a motion to clarify, Rokita responded with an opposing motion, asking the court to deny the plaintiff’s request and to also reconsider the grant of summary judgment for the plaintiff.

Subsequently, Eisgruber held a hearing on the matter and then issued his final order on Feb. 27, reiterating his conclusions from the January ruling. The judge found, in particular, the code of ethics and state law require the Ethics Commission to review questions arising from a state employee’s request to moonlight.

“In matters of outside employment, the Defendant’s reasoning would allow a state employee to determine whether to request an informal advisory opinion under (Code of Ethics Rule 8), or be subject to a more public review by the Commission subject to the APRA,” Eisgruber wrote. “Such a work around would allow the IG to promulgate rules which clearly exceed the IG’s statutory authority.”

Eisgruber denied without explanation Tully’s request to clarify that the attorney general could redact only the information protected under Indiana Code section 5-14-3-4(a)(1)-(14) such as social security numbers, medical records and certain personal financial data.

Abraham Schwab, professor of philosophy at Purdue Fort Wayne and a member of the Allen County Ethics Commission, told The Indiana Citizen that context is important in these dual employment situations.

Public sector employees, he said, should not be prohibited from taking a job in the private sector but, especially for public officials like the attorney general who are in higher positions of authority, concerns arise over conflicts of interest between their responsibilities to the taxpayers and their moonlighting. Public servants could be compromised in doing their public job by their desire to protect their private salary.

“The ultimate question,” Schwab said, “is ‘Does the job conflict with (the official’s) ability to fulfill the responsibilities of the public office?’”

Legal arguments

The attorney general has asserted that requiring him to release the report would have wide-reaching implications.

After Eisgruber issued his January order, Rokita filed motions asking the trial court to reverse the “fundamentally flawed” decision and to stay the release of the advisory opinion for at least 30 days after the final order was entered. The state’s top attorney, citing to a letter from the inspector general, argued informal opinions are meant to be confidential in order to encourage public employees to seek guidance whenever they have questions about ethics.

“The Court’s decision in this APRA case over a single document threatens a sea change in the Inspector General’s role,” Rokita told the court in his response opposing Tully’s motion to amend or clarify. “By eliminating all confidentiality for informal advisory opinions, the Court has handcuffed the Indiana General Assembly and Inspector General (indeed, all of Indiana state government) in their mission to promote good government.”

However, Tully countered state statute does not grant the inspector general the authority to classify documents other than investigative reports as confidential. In fact, nowhere does the law recognize a record called an “informal advisory opinion.” Rather, Title 42 of the Indiana Administrative Code 1-8-1 cites to such informal opinions but cautions they are not binding on the Indiana Ethics Commission.

“Rokita’s decision to seek an informal opinion from the (Office of the Inspector General) rather than an opinion from the Commission conflicts with his statutory duty under (Indiana Code) section 4-2-6-9(b)(1) to seek an advisory opinion from the Commission,” Tully argued in her motion for summary judgment. “He has thus deviated from the existing statutory procedure a public official is required to use to determine his compliance with the state code of ethics.”

Schwab surmised the inspector general’s opinion would be more circumspect and shy away from imposing restrictions. Yet, he continued, the public might not need to read the IG’s findings to draw a conclusion about the attorney general’s private sector job. Even if the report states Rokita did not violate the letter of the law or regulation, voters may still see a conflict of interest.

Moreover, the public can see “at least a piece of the puzzle” if they are able to search other sources and learn the details of the private sector job like the responsibilities, hours required and compensation. “Details matter,” Schwab said, for voters to decide if a public official is compromised by moonlighting.

No attorney’s fees

Likely this case will now be moving to the Court of Appeals of Indiana.

Rokita stated in court documents that he would possibly be appealing if the court’s order remained unchanged. The Indiana Citizen has reached out with a request for comment on the court’s final ruling and if an appeal would be filed but the attorney general’s office did not respond.

Groth, Tully’s attorney, told The Indiana Citizen the case is headed to the appellate court. He said the plaintiff will either be appealing the ruling or cross-appealing if Rokita appeals.

Aside from the battle over the release of the report, the opposing sides are also fighting over money. In his ruling, Eisgruber also denied, without explanation, Tully’s request for attorney fees.

The plaintiff sought the award of attorney fees and costs under the Indiana Access to Public Records Act section 9(i)’s mandatory free-shifting provision. The provision holds if the plaintiff prevails in an open-records case, the court shall award attorney fees, court costs and reasonable expenses.

Rokita argued against the award. He contended attorney fees should not be covered because the Indiana public access counselor found the report was not a public record. He asserted in his opposition to Tully’s motion to clarify that reimbursing the plaintiff for the expenses of going to court “would make no sense” since the public access counselor ruled against her request to see the informal advisory opinion.

In her response to the attorney general’s motion to dismiss, Tully noted the public access counselor found Rokita had not responded in a timely manner to her request for the report.

Baiel noted the battle, itself, has the potential to cause a ripple effect. Other state and local employees might decide to keep quiet about their own private employment by reasoning, “If Todd Rokita can do it, so can I.”

Marilyn Odendahl has spent her journalism career writing for newspapers and magazines in Indiana and Kentucky. She has focused her reporting on business, the law and poverty issues.

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