MARTINSVILLE – As a crossroads of the nation, Indiana has been surprisingly oblivious, even impervious, to political and social changes. That resistance includes writing ethical standards for office holders, state and local. Dr. Maury Kramer once explained his observations about Hoosier resistance to change with a comparison between settlers and pioneers. Now, several years down the road, his observations applied to the public ethics in Indiana are spot on. 

Growing up with parents who participated in community activities, being a precinct committeemen and going to political rallies at the Indiana State Fairgrounds, l did not know about political corruption as a kid. It was not until I started practicing law in southern Indiana when I was told how $5 and a pint could vote. 

Even then, ever an optimist about honesty and inclusion, I worked for the Equal Rights Amendment in the 1970’s. I tried cases in the 1980’s that involved local officials profiting from bribery.  On the Court of Appeals, I saw cases from around the entire state that involved allegations of bribery and other official misconduct. 

Over the years, Indiana government officials, state and local, have been touted as increasingly more honest and more inclusive compared to other states. One might wonder who would report a lack of honesty in a credible way. 

Looking first at conflicts of interest and honesty, questions about honesty and ethics are not as simple as one might expect. When a friend asked when the “Profiteering from Public Service” section in the Indiana criminal code would apply to a local office holder, I was surprised by the language of the statute. Please join me in considering the language of the law.  

IC 35-44.1-1-5 Profiteering from Public Service:

Sec. 5. (a) As used in this section, “pecuniary interest” has the meaning set forth in section 4(a)(3) of this chapter. (b) A person who knowingly or intentionally:
(1) obtains a pecuniary interest in a contract or purchase with an agency within one year after separation from employment or other service with the agency; and; (2) is not a public servant for the agency but who as a public servant approved, negotiated, or prepared on behalf of the agency the terms or specifications of:

(A) the contract; or (B) the purchase; commits profiteering from public service, a Level 6 felony.
     
(c) This section does not apply to negotiations or other activities related to an economic development grant, loan, or loan guarantee.
     
(d) This section does not apply if the person receives less than two hundred fifty dollars ($250) of the profits from the contract or purchase.
     
(e) It is a defense to a prosecution under this section that:

(1) the person was screened from any participation in the contract or purchase;

(2) the person has not received a part of the profits of the contract or purchase; and

(3) notice was promptly given to the agency of the person’s interest in the contract or purchase.

As added by P.L.126-2012, SEC.54. Amended by P.L.158-2013, SEC.500.

But even if profiteering from economic development is permitted, weird though that seems, who would know if someone were profiting?  Indiana does not have a state statute that sets out any regular and routine financial disclosure requirements for local officials. There are some interesting (and disturbing gaps) for the state level as well but that may be a book for the future.  

As I looked at the statutes and asked some questions, I learned about a leadership approach in the Northwest corner of our state, known as the Region, that is aimed at increasing both the financial and ethical sunlight upon their officials. (Sunlight is the best known and most inexpensive disinfectant.) Because the rest of the state has lumped the Region into a caricature of shared values across communities (name source!) for many years, the Shared Ethics Advisory Commission provides an interesting contrast to the popular view of the area. It could be that the commission has potential to inform the rest of us.

The commission quotes Albert Schweitzer, “the first step in the evolution of ethics is a sense of solidarity with other human beings” and their preamble explains what they are doing: Because we value the public’s confidence and trust in our services and its decision-makers, our character and behaviors must meet the most demanding ethical standards and demonstrate the highest levels of achievement in following this code. 

The Shared Ethics Advisory Commission currently includes the cities of Crown Point, East Chicago, Gary, Hobart, Portage, Valparaiso and Whiting; the towns of Burns Harbor, Cedar Lake, Chesterton, Dyer, Hebron, Highland, Lake Station, Lowell, Merrillville, Munster, Ogden Dunes, Schererville, St. John and Westville; and the counties of Lake, LaPorte, and Porter. All commission participants promote ethical behavior in the workplace and have adopted the standards recognized by the commission. Click here to get more information about this voluntary program.

The volunteer approach has a healthy value in promoting community dialogue.  When people choose to identify and agree with ethics standards, they are more likely to live up to those standards. Some local units have adopted ordinances to require financial and conflict of interest disclosures to be made in a standard format pursuant at scheduled intervals after employment and on a yearly basis. But for the most part, Indiana has a lot of work to do to put common sense and workable requirements for ethical governance in place. 

The efforts of local governmental units to implement ethical standards voluntarily highlight the inadequacy of Indiana’s standards defining conflicts of interest and providing methods to have meaningful disclosure.  

Indiana has significant gaps in its requirements for ethical governance at both state and local levels. Beyond the fact that the articulation of ethical standards is incomplete and inadequate, it is particularly worrisome that most of the requirements for local government ethics are in the criminal code. For example, official misconduct is a Level 6 felony. Bribery is a Level 5 felony. Ghost employment is a Level 6 felony.

Ethical behavior is more than refraining from financial misdealing and criminal conflicts of interest. Indiana needs better defining of unethical behavior and that will be demanding work if we are to be respectful of culture and diversity. How should we treat social mores and interactions that present questions of civility? Do we want to make rudeness a crime even if it were constitutional to do so? Should poor judgment be a crime? Probably not, considering that Indiana, as a money-collecting strategy, chose to classify most traffic violations as simple civil infractions.  It might even be that not all unethical behavior should be a crime. 

We have communal differences across Indiana.  When we live in small communities where we know everyone, we tend to respect privacy and not demand a lot of documents. In larger communities, more detailed and demanding measures might be needed. The state agencies, units of large counties, and larger cities should be required to have the most structured reporting because they are more removed from the people.

Despite Indiana’s perceived resistance to change, the professionalism and investigative capacity and competence of the paid media has changed in the last 20 years. I respect the competence of a couple of reporters in Indiana; still, I believe that they are hobbled by their employers as to content, extent, and direction of their reporting. 

If we want more ethical government in Indiana, it is up to each of us to investigate and demand changes.  Reporters are not meeting our responsibility nor doing our work for us.   

Hopefully, Hoosiers will entertain new ideas and engage participants from diverse communities across the entire state as we discuss ethical and thoughtful leadership. A “Quick-Draw McGraw” approach to the discussions of ethical standards carries a risk of more exclusion and less trust.

Can Indiana have rational and civil discussions of ethical behavior? Or will Indiana be captive of shrill voices that insist on being me centered rather than for the good of the community? 

Chezem is a former Indiana appellate judge, practices law in Martinsville and writes for HPI on legal and agriculture issues.