Bill Text: IN SB0168 | 2010 | Regular Session | Amended
Bill Title: Various ethics and inspector general matters.
Spectrum: Bipartisan Bill
Status: (Engrossed - Dead) 2010-02-09 - First reading: referred to Committee on Rules and Legislative Procedures [SB0168 Detail]
Download: Indiana-2010-SB0168-Amended.html
Citations Affected: IC 4-2; IC 4-6; IC 5-10.3; IC 5-10.4; IC 5-11.
Synopsis: Various ethics and inspector general matters. Authorizes the
inspector general to directly institute civil proceedings against persons
who have failed to pay civil penalties imposed by the state ethics
commission. Requires the state board of accounts to provide to the
inspector general (in addition to the attorney general) copies of certain
reports concerning: (1) malfeasance, misfeasance, or nonfeasance in
office by public officials or employees; (2) fraud or misconduct with
respect to public contracts; or (3) unlawful expenditure or diversion of
public money. Repeals or deletes provisions in the statutes governing
the following quasi-governmental entities that give those entities the
option of establishing a code of ethics for their employees or being
under the jurisdiction of the state ethics commission (the state ethics
commission statute provides that these entities are "agencies" for
purposes of the commission's jurisdiction): Indiana finance authority;
Indiana bond bank; public employees' retirement fund; Indiana state
teachers' retirement fund; board for depositories; Indiana housing and
community development authority; ports of Indiana; bureau of motor
vehicles commission; Indiana homeland security foundation; Indiana
natural resources foundation; Indiana White River state park
development commission; state fair commission; state student
assistance commission; Indiana grain indemnity corporation; Indiana
political subdivision risk management commission.
Effective: July 1, 2010.
January 5, 2010, read first time and referred to Committee on Rules and Legislative
Procedure.
January 26, 2010, reported favorably _ Do Pass.
PRINTING CODE. Amendments: Whenever an existing statute (or a section of the Indiana Constitution) is being amended, the text of the existing provision will appear in this style type, additions will appear in this style type, and deletions will appear in
Additions: Whenever a new statutory provision is being enacted (or a new constitutional provision adopted), the text of the new provision will appear in this style type. Also, the word NEW will appear in that style type in the introductory clause of each SECTION that adds a new provision to the Indiana Code or the Indiana Constitution.
Conflict reconciliation: Text in a statute in this style type or
A BILL FOR AN ACT to amend the Indiana Code concerning state
offices and administration.
(b) If the inspector general finds evidence described in subsection (a), the inspector general shall certify a report of the matter to the attorney general and provide the attorney general with any relevant documents, transcripts, or written statements. Not later than one hundred eighty (180) days after receipt of the report from the inspector general, the attorney general shall do one (1) of the following:
(1) File a civil action (including an action upon a state officer's official bond) to secure for the state the recovery of funds misappropriated, diverted, missing, or unlawfully gained. Upon request of the attorney general, the inspector general shall assist
the attorney general in the investigation, preparation, and
prosecution of the civil action.
(2) Inform the inspector general that the attorney general does not
intend to file a civil action for the recovery of funds
misappropriated, diverted, missing, or unlawfully gained. If the
attorney general elects not to file a civil action, the attorney
general shall return to the inspector general all documents and
files initially provided by the inspector general.
(3) Inform the inspector general that the attorney general is
diligently investigating the matter and after further investigation
may file a civil action for the recovery of funds misappropriated,
diverted, missing, or unlawfully gained. However, if more than
three hundred sixty-five (365) days have passed since the
inspector general certified the report to the attorney general, the
attorney general loses the authority to file a civil action for the
recovery of funds misappropriated, diverted, missing, or
unlawfully gained and shall return to the inspector general all
documents and files initially provided by the inspector general.
(c) If the inspector general has found evidence described in
subsection (a) and reported to the attorney general under subsection (b)
and:
(1) the attorney general has elected under subsection (b)(2) not to
file a civil action for the recovery of funds misappropriated,
diverted, missing, or unlawfully gained; or
(2) under subsection (b)(3) more than three hundred sixty-five
(365) days have passed since the inspector general certified the
report to the attorney general under subsection (b) and the
attorney general has not filed a civil action;
the inspector general may file a civil action for the recovery of funds
misappropriated, diverted, missing, or unlawfully gained.
(d) If the inspector general has found evidence described in
subsection (a), the inspector general may institute forfeiture
proceedings under IC 34-24-2 in a court having jurisdiction in a county
where property derived from or realized through the misappropriation,
diversion, disappearance, or unlawful gain of state funds may be
located, unless a prosecuting attorney has already instituted forfeiture
proceedings against that property.
(e) The inspector general may directly institute civil proceedings
against persons who have failed to pay civil penalties imposed by
the ethics commission under IC 4-2-6-12.
JULY 1, 2010]: Sec. 2. (a) The attorney general shall have charge of
and direct the prosecution of all civil actions that are brought in the
name of the state of Indiana or any state agency.
(b) In no instance under this section shall the state or a state agency
be required to file a bond.
(c) This section does not affect the authority of prosecuting
attorneys to prosecute civil actions.
(d) This section does not affect the authority of the inspector general
to prosecute a civil action under IC 4-2-7-6 for the recovery of either
or both of the following:
(1) Funds misappropriated, diverted, missing, or unlawfully
gained.
(2) A civil penalty imposed by the state ethics commission
under IC 4-2-6-12.
(e) The attorney general may bring an action to collect unpaid
registration fees owed by a commercial dog broker or a commercial
dog breeder under IC 15-21.
(1) Appoint a director, subject to the approval of the governor.
(2) Appoint an actuary and employ or contract with employees, auditors, technical experts, legal counsel, and other service providers as it considers necessary to transact the business of the fund, without the approval of any state officer.
(3) Fix the compensation of persons:
(A) appointed or employed by the board; or
(B) who contract with the board.
(4) Establish a general office in Indianapolis for board meetings and for administrative personnel.
(5) Provide for the installation in the general office of a complete system of books, accounts including reserve accounts, and records in order to give effect to all the requirements of this article and to assure the proper operation of the fund.
(6) Provide for a report at least annually, before June 1, to each member of the amount credited to
(7) With the advice of the actuary, adopt actuarial tables and compile data needed for actuarial studies which are necessary for the fund's operation.
(8) Act on applications for benefits and claims of error filed by members.
(9) Have the accounts of the fund audited annually by the state board of accounts.
(10) Publish for the members a synopsis of the fund's condition.
(11) Adopt a budget on a calendar year or fiscal year basis that is sufficient, as determined by the board, to perform the board's duties and, as appropriate and reasonable, draw upon fund assets to fund the budget.
(12) Expend money, including income from the fund's investments, for effectuating the fund's purposes.
(13) Establish personnel programs and policies for its employees.
(14) Submit a report of its activities each year to the governor, the pension management oversight commission, and the budget committee before November 1 of each year. The report under this subdivision must set forth a complete operating and financial statement covering its operations during the most recent fiscal year, including information on the following:
(A) Investment performance.
(B) Investment and administrative costs as a percentage of assets under management.
(C) Investment asset allocation strategy.
(D) Member services.
(E) Member communications.
(b) The board shall do all the following:
(1) Act on an application for benefits.
(2) Provide the necessary forms for administering the fund.
(3) Establish records and accounts, which:
(A) provide the necessary information for an actuary's examination; and
(B) are sanctioned by the state board of accounts.
(4) Maintain individual records for each member containing the member's:
(A) name;
(B) date of birth;
(C) age at beginning service;
(D) service record;
(E) address;
(F) contributions to the fund;
(G) amounts withdrawn; and
(H) benefits paid;
and other items considered necessary.
(5) Employ or contract with employees, auditors, technical experts, legal counsel, and other service providers as the board considers necessary to transact the business of the fund without the approval of any state officer, and fix the compensation of those persons.
(6) Make rules as required to administer the fund.
(7) Publish a summary of the fund's condition.
(8) Provide for a report for each member, at least annually before June 1, of the value of the amount credited to the member in the annuity savings account in each investment program under IC 5-10.2-2.
(9) Provide for the installation in the general office of a complete system of:
(A) books;
(B) accounts, including reserve accounts; and
(C) records;
to give effect to all the requirements of this article and to ensure the proper operation of the fund.
(10) Appoint an actuary.
(11) With the advice of the actuary, adopt actuarial tables and compile data needed for actuarial studies necessary for the fund's operation.
(12) Adopt a budget on a calendar year or fiscal year basis that is sufficient, as determined by the board, to perform the board's duties and, as appropriate and reasonable, draw upon fund assets to fund the budget.
(13) Expend money, including income from the fund's investments, for effectuating the fund's purposes.
(14) Establish personnel programs and policies for the employees of the board.
(15) Submit a report of the board's activities to the governor, the pension management oversight commission, and the budget committee before November 1 of each year. The report under this subdivision shall set forth a complete operating and financial statement covering the board's operations during the most recent fiscal year, including information on the following:
(A) Investment performance.
(B) Investment and administrative costs as a percentage of
assets under management.
(C) Investment asset allocation strategy.
(D) Member services.
(E) Member communications.
(16) Establish a code of ethics or decide to be under the
jurisdiction and rules adopted by the state ethics commission.
(1) Failure of the entity to observe a uniform compliance guideline established under IC 5-11-1-24(a).
(2) Failure of the entity to comply with a specific law.
A report that includes a finding that is critical of an examined entity must designate the uniform compliance guideline or the specific law upon which the finding is based. The reports shall immediately be filed with the state examiner, and, after inspection of the report, the state examiner shall immediately file one (1) copy with the officer or person examined, one (1) copy with the auditing department of the municipality examined and reported upon, and one (1) copy in an electronic format under IC 5-14-6 of the reports of examination of state agencies, instrumentalities of the state, and federal funds administered by the state with the legislative services agency, as staff to the general assembly. Upon filing, the report becomes a part of the public records of the office of the state examiner, of the office or the person examined, of the auditing department of the municipality examined and reported upon, and of the legislative services agency, as staff to the general assembly. A report is open to public inspection at all reasonable times after it is filed. If an examination discloses malfeasance, misfeasance, or nonfeasance in office or of any officer or employee, a copy of the report, signed and verified, shall be placed by the state examiner with the attorney general and the inspector general. The attorney general shall diligently institute and prosecute civil proceedings against the delinquent officer, or upon the officer's official bond, or both, and against any other proper person that will secure to the state or to the proper municipality the recovery of any funds misappropriated, diverted, or unaccounted for.
(b) Before an examination report is signed, verified, and filed as required by subsection (a), the officer or the chief executive officer of
the state office, municipality, or entity examined must have an
opportunity to review the report and to file with the state examiner a
written response to that report. If a written response is filed, it becomes
a part of the examination report that is signed, verified, and filed as
required by subsection (a).
(c) Except as required by subsections (b) and (d), it is unlawful for
any deputy examiner, field examiner, or private examiner, before an
examination report is made public as provided by this section, to make
any disclosure of the result of any examination of any public account,
except to the state examiner or if directed to give publicity to the
examination report by the state examiner or by any court. If an
examination report shows or discloses the commission of a crime by
any person, it is the duty of the state examiner to transmit and present
the examination report to the grand jury of the county in which the
crime was committed at its first session after the making of the
examination report and at any subsequent sessions that may be
required. The state examiner shall furnish to the grand jury all evidence
at the state examiner's command necessary in the investigation and
prosecution of the crime.
(d) If, during an examination under this article, a deputy examiner,
field examiner, or private examiner acting as an agent of the state
examiner determines that the following conditions are satisfied, the
examiner shall report the determination to the state examiner:
(1) A substantial amount of public funds has been
misappropriated or diverted.
(2) The deputy examiner, field examiner, or private examiner
acting as an agent of the state examiner has a reasonable belief
that the malfeasance or misfeasance that resulted in the
misappropriation or diversion of the public funds was committed
by the officer or an employee of the office.
(e) After receiving a preliminary report under subsection (d), the
state examiner may provide a copy of the report to the attorney general.
The attorney general may institute and prosecute civil proceedings
against the delinquent officer or employee, or upon the officer's or
employee's official bond, or both, and against any other proper person
that will secure to the state or to the proper municipality the recovery
of any funds misappropriated, diverted, or unaccounted for.
(f) In an action under subsection (e), the attorney general may attach
the defendant's property under IC 34-25-2.
(g) A preliminary report under subsection (d) is confidential until
the final report under subsection (a) is issued, unless the attorney
general institutes an action under subsection (e) on the basis of the
preliminary report.
(1) any public contract has been regularly and lawfully executed and performed; or
(2) any public work, building, or structure has been or is being performed, built, or constructed in accordance with the terms and provisions of the contract, and in compliance with the plans and specifications, if any.
Upon a written petition of twenty-five (25) taxpayers the state examiner may also require all plans, specifications, and estimates to be submitted to the state examiner for corrections and approval before a contract is awarded.
(b) The state examiner, deputy examiner, and any field examiner, when engaged in making an inquiry, test, examination, or investigation under subsection (a), is entitled to examine and inspect any public records, documents, data, contracts, plans, and specifications contained or found in any public office or other place pertaining or relating to the public contract or public work, building, or structure. In addition, subpoenas may be issued to witnesses to appear before the examiner in person or to produce books and papers for inspection and examination. The state examiner, deputy, field, and private examiner may administer oaths and examine witnesses under oath either orally or by interrogatories on all matters under examination and investigation. Under order of the state examiner, the examination may be transcribed, with the reasonable expense paid by the municipality in the same manner as the compensation of the field examiner is paid.
(c) The state examiner, the deputy examiner, and a field examiner may enforce attendance and answers to questions and interrogatories, as provided by law, with respect to examinations and investigations made by the state examiner, deputy examiner, field examiner, or private examiner of public offices.
(d) The state examiner, deputy examiner, any field examiner, and any private examiner, when making an examination or investigation under subsection (a), shall examine, inspect, and test the public works, buildings, or structures in the manner that the examiner sees fit to
determine whether it is being performed, built, or constructed
according to the contract and plans and specifications.
(e) The state examiner shall file a report covering any examination
or investigation that discloses:
(1) fraud, collusion, misconduct, or negligence in the letting or
the execution of any public contract or in the performance of any
of the terms and conditions of any public contract; or
(2) any failure to comply with the terms or conditions of any
public contract in the construction of any public work, building,
or structure or to perform, build, or construct it according to the
plans and specifications, if any, provided in the contract;
that causes loss, injury, waste, or damage to the state, the municipality,
taxing or assessment district, other public entity, or to its citizens, if it
is enforceable by assessment or taxation.
(f) The report must meet the following requirements:
(1) The report must be made, signed, and verified in
quadruplicate by the examiner making the examination.
(2) The report shall be filed promptly with the state examiner.
After inspection of the report, the state examiner shall file a copy of the
report promptly with the attorney general and the inspector general.
(g) The attorney general shall diligently institute and prosecute civil
proceedings against any or all officers, individuals, and persons in the
form and manner that the attorney general determines will secure a
proper recovery to the state, municipality, taxing or assessment district,
or other public entity injured, defrauded, or damaged by the matters in
the report. These prosecutions may be made by the attorney general and
the recovery may be had, either upon public official bonds, contractors'
bonds, surety or other bonds, or upon individual liability, either upon
contract or in tort, as the attorney general determines is wise. No action
or recovery in any form or manner, or against any party or parties,
precludes further or additional action or recovery in any other form or
manner or against another party, either concurrently with or later found
necessary, to secure complete recovery and restitution with respect to
all matters exhibited, set out, or described in the report. The suits may
be brought in the name of the state on the relation of the attorney
general for the benefit of the state, or the municipality, taxing or
assessment district, or other public entity that may be proper. The
actions brought against any defendants may be joined, as to parties,
form, and causes of action, in the manner that the attorney general
decides.
(h) Any report described in this section or a copy duly certified by
the state examiner shall be taken and received in any and all courts of
this state as prima facie evidence of the facts stated and contained in
the reports.
(i) If an examination, investigation, or test is made without a petition
being first filed and the examination, investigation, or test shows that
the terms of the contract are being complied with, then the expense of
the examination, investigation, or test shall be paid by the state upon
vouchers approved by the state examiner from funds available for
contractual service of the state board of accounts. If such a report
shows misfeasance, malfeasance, or nonfeasance in public office or
shows that the terms of the plans and specifications under which a
contract has been awarded are not being complied with, it is unlawful
to make the report public until the report has been certified to the
attorney general.
(j) If, during an examination under this article, a deputy examiner,
field examiner, or private examiner acting as an agent of the state
examiner determines that all of the following conditions are satisfied,
the examiner shall report the determination to the state examiner:
(1) A substantial amount of public funds has been
misappropriated or diverted.
(2) The deputy examiner, field examiner, or private examiner
acting as an agent of the state examiner has a reasonable belief
that the malfeasance or misfeasance that resulted in the
misappropriation or diversion of public funds was committed by
the officer or an employee of the office.
(k) After receiving a preliminary report under subsection (j), the
state examiner may provide a copy of the report to the attorney general.
The attorney general may institute and prosecute civil proceedings
against the delinquent officer or employee, or upon the officer's or
employee's official bond, or both, and against any other proper person
that will secure to the state or to the proper municipality the recovery
of any funds misappropriated, diverted, or unaccounted for.
(l) In an action under subsection (k), the attorney general may attach
the defendant's property under IC 34-25-2.
(m) A preliminary report under subsection (j) is confidential until
the final report under subsection (e) is issued, unless the attorney
general institutes an action under subsection (k) on the basis of the
preliminary report.
(1) malfeasance, misfeasance, or nonfeasance in office or of any officer or employee;
(2) that any public money has been:
(A) unlawfully expended, either by having been expended for a purpose not authorized by law in an amount exceeding that authorized by law, or by having been paid to a person not lawfully entitled to receive it; or
(B) obtained by fraud or in any unlawful manner; or
(3) that any money has been wrongfully withheld from the public treasury;
a duly verified copy of the report shall be submitted by the state examiner to the attorney general, who shall institute and prosecute civil proceedings as provided in section 1 of this chapter, and to the inspector general.
; (10)SB0168.1.8. --> SECTION 8. THE FOLLOWING ARE REPEALED [EFFECTIVE JULY 1, 2010]: IC 4-4-11-15.1; IC 5-1.5-2-10; IC 5-13-12-3.1; IC 5-20-1-4.1; IC 8-10-1-7.1; IC 9-15-2-2.2; IC 10-15-2-11; IC 14-12-1-10.1; IC 14-13-1-14.5; IC 15-13-2-13; IC 21-11-9-3; IC 26-4-3-10; IC 27-1-29-27.1.
