Introduced Version






HOUSE BILL No. 1370

_____


DIGEST OF INTRODUCED BILL



Citations Affected: IC 4-2-7; IC 33-39-1-6.

Synopsis: Special prosecutors and inspector general. Permits the chief judge of the court of appeals to appoint a special prosecuting attorney to investigate or prosecute a matter within the competence of the inspector general if a conflict of interest, the appearance of impropriety, or the possible commission of a crime would disqualify the inspector general. Requires the special prosecuting attorney to be an elected prosecuting attorney or a chief deputy prosecuting attorney. Gives the special prosecuting attorney investigative and prosecutorial powers similar to those of the inspector general. Makes conforming amendments.

Effective: July 1, 2006.





Van Haaften




    January 12, 2006, read first time and referred to Committee on Government and Regulatory Reform.







Introduced

Second Regular Session 114th General Assembly (2006)


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 this style type.
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 this style type reconciles conflicts between statutes enacted by the 2005 Regular Session of the General Assembly.

HOUSE BILL No. 1370



    A BILL FOR AN ACT to amend the Indiana Code concerning state offices and administration.

Be it enacted by the General Assembly of the State of Indiana:

SOURCE: IC 4-2-7-9; (06)IN1370.1.1. -->     SECTION 1. IC 4-2-7-9 IS ADDED TO THE INDIANA CODE AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2006]: Sec. 9. (a) The chief judge of the court of appeals:
        (1) shall appoint a special prosecuting attorney if:
            (A) a person other than the inspector general files a verified petition requesting the appointment of a special prosecuting attorney to investigate or prosecute a matter described in section 3 of this chapter;
            (B) the verified petition asserts that it is inappropriate for the inspector general to investigate or prosecute the matter due to:
                (i) the appearance of impropriety; or
                (ii) an actual conflict of interest; and
            (C) the inspector general agrees that a special prosecuting attorney is needed;
        (2) may appoint a special prosecuting attorney if:
            (A) a person files a verified petition requesting the

appointment of a special prosecuting attorney to investigate or prosecute a matter described in section 3 of this chapter; and
            (B) the chief judge, after:
                (i) notice is given to the inspector general; and
                (ii) an evidentiary hearing is conducted at which the inspector general is given an opportunity to be heard;
            finds by clear and convincing evidence that the appointment is necessary to avoid the appearance of impropriety or an actual conflict of interest, or there is probable cause to believe that the inspector general has committed a crime; and
        (3) may appoint a special prosecuting attorney if:
            (A) the inspector general files a petition requesting the chief judge to appoint a special prosecuting attorney to investigate or prosecute a matter described in section 3 of this chapter;
            (B) the petition asserts that it is inappropriate for the inspector general to investigate or prosecute the matter due to:
                (i) the appearance of impropriety; or
                (ii) an actual conflict of interest; and
            (C) the chief judge finds that the appointment is necessary to avoid the appearance of impropriety or an actual conflict of interest.
    (b) Each person appointed to serve as a special prosecuting attorney under this section:
        (1) must consent to the appointment; and
        (2) must be the prosecuting attorney or chief deputy prosecuting attorney in a county other than the county in which the person is to serve as special prosecuting attorney.
    (c) The chief judge shall establish the length of the special prosecuting attorney's term. If the target of an investigation by the special prosecuting attorney is a public servant (as defined in IC 35-41-1-24), the court shall order the special prosecuting attorney to file a report of the investigation with the court of appeals at the conclusion of the investigation. The report is a public record.
    (d) If the special prosecuting attorney is not regularly employed as a full-time prosecuting attorney or full-time chief deputy prosecuting attorney, the compensation for the special prosecuting attorney's services:


        (1) shall be paid to the special prosecuting attorney by the inspector general; and
        (2) may not exceed:
            (A) a per diem equal to the regular salary of the prosecuting attorney of Marion County; and
            (B) travel expenses and reasonable accommodation expenses actually incurred.
    (e) If the special prosecuting attorney is regularly employed as a full-time prosecuting attorney or chief deputy prosecuting attorney, the compensation for the special prosecuting attorney's services:
        (1) shall be paid by the inspector general to the treasurer of the county in which the special prosecuting attorney regularly serves; and
        (2) must include a per diem equal to the regular salary of the full-time prosecuting attorney of Marion County, travel expenses, and reasonable accommodation expenses actually incurred.

SOURCE: IC 4-2-7-10; (06)IN1370.1.2. -->     SECTION 2. IC 4-2-7-10 IS ADDED TO THE INDIANA CODE AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2006]: Sec. 10. (a) This section applies to a special prosecuting attorney appointed under section 9 of this chapter. This section applies if the special prosecuting attorney appointed under section 9 of this chapter finds evidence of misfeasance, malfeasance, nonfeasance, misappropriation, fraud, or other misconduct that resulted in a financial loss to the state or in an unlawful benefit to an individual in the conduct of state business.
    (b) If the special prosecuting attorney finds evidence described in subsection (a), the special prosecuting attorney 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 special prosecuting attorney, 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 special prosecuting attorney shall assist the attorney general in the investigation, preparation, and prosecution of the civil action.
        (2) Inform the special prosecuting attorney 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 special prosecuting attorney all documents and files initially provided by the special prosecuting attorney.
        (3) Inform the special prosecuting attorney 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 special prosecuting attorney 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 special prosecuting attorney all documents and files initially provided by the special prosecuting attorney.
    (c) If the special prosecuting attorney 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 special prosecuting attorney certified the report to the attorney general under subsection (b) and the attorney general has not filed a civil action;
the special prosecuting attorney may file a civil action for the recovery of funds misappropriated, diverted, missing, or unlawfully gained.
    (d) If the special prosecuting attorney has found evidence described in subsection (a), the special prosecuting attorney 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.

SOURCE: IC 4-2-7-11; (06)IN1370.1.3. -->     SECTION 3. IC 4-2-7-11 IS ADDED TO THE INDIANA CODE AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2006]: Sec. 11. (a) This section applies only to a special prosecuting attorney appointed under section 9 of this chapter.
     (b) If the special prosecuting attorney discovers evidence of

criminal activity, the special prosecuting attorney shall certify the following information to the appropriate prosecuting attorney:
        (1) The identity of any person who may be involved in the criminal activity.
        (2) The criminal statute that the special prosecuting attorney believes has been violated.
In addition, the special prosecuting attorney shall provide the prosecuting attorney with any relevant documents, transcripts, or written statements. If the prosecuting attorney decides to prosecute the crime described in the information certified to the prosecuting attorney, or any other related crimes, the special prosecuting attorney shall cooperate with the prosecuting attorney in the investigation and prosecution of the case. Upon request of the prosecuting attorney, the special prosecuting attorney may participate on behalf of the state in any resulting criminal trial.

     (c) If:
        (1) the prosecuting attorney to whom the special prosecuting attorney issues a certification under subsection (b):
            (A) is disqualified from investigating or bringing a criminal prosecution in the matter addressed in the certification;
            (B) does not file an information or seek an indictment not later than one hundred eighty (180) days after the date on which the special prosecuting attorney certified the information to the prosecuting attorney; or
            (C) refers the case back to the special prosecuting attorney; and
        (2) the special prosecuting attorney finds that there may be probable cause to believe that a person identified in a certification under subsection (b)(1) has violated a criminal statute identified in a certification under subsection (b)(2);
the special prosecuting attorney may prosecute the matter addressed in the certification.

     (d) Except as provided in subsection (f), a special prosecuting attorney appointed under section 9 of this chapter has the same powers as the prosecuting attorney of the county. However, the chief judge of the court of appeals shall:
        (1) limit the scope of the special prosecuting attorney's duties as a special prosecuting attorney to include only the investigation or prosecution of a particular case or particular grand jury investigation, including any matter that reasonably results from the investigation, prosecution, or

grand jury investigation; and
        (2) establish for a time certain the length of the special prosecuting attorney's term.
If the special prosecuting attorney's investigation or prosecution acquires a broader scope or requires additional time to complete, the chief judge of the court of appeals may at any time increase the scope of the special prosecuting attorney's duties or establish a longer term for the special prosecuting attorney.

     (e) A special prosecuting attorney may appoint one (1) or more deputies who are licensed to practice law in Indiana to serve as a special deputy prosecuting attorney. A special deputy prosecuting attorney is subject to the same statutory restrictions and other restrictions imposed on the special prosecuting attorney by the court of appeals, but otherwise has the same powers as a deputy prosecuting attorney.
     (f) A special prosecuting attorney may bring a criminal charge only after obtaining an indictment from a grand jury. A special prosecuting attorney may not bring a criminal charge by filing an information.

SOURCE: IC 33-39-1-6; (06)IN1370.1.4. -->     SECTION 4. IC 33-39-1-6, AS AMENDED BY P.L.222-2005, SECTION 38, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2006]: Sec. 6. (a) Special prosecutors may be appointed under this section or in accordance with IC 4-2-7-7. IC 4-2-7.
    (b) A circuit or superior court judge:
        (1) shall appoint a special prosecutor if:
            (A) any person other than the prosecuting attorney or the prosecuting attorney's deputy files a verified petition requesting the appointment of a special prosecutor; and
            (B) the prosecuting attorney agrees that a special prosecutor is needed;
        (2) may appoint a special prosecutor if:
            (A) a person files a verified petition requesting the appointment of a special prosecutor; and
            (B) the court, after:
                (i) notice is given to the prosecuting attorney; and
                (ii) an evidentiary hearing is conducted at which the prosecuting attorney is given an opportunity to be heard;
            finds by clear and convincing evidence that the appointment is necessary to avoid an actual conflict of interest or there is probable cause to believe that the prosecutor has committed a crime;
        (3) may appoint a special prosecutor if:
            (A) the prosecuting attorney files a petition requesting the court to appoint a special prosecutor; and
            (B) the court finds that the appointment is necessary to avoid the appearance of impropriety; and
        (4) may appoint a special prosecutor if:
            (A) an elected public official, who is a defendant in a criminal proceeding, files a verified petition requesting a special prosecutor within ten (10) days after the date of the initial hearing; and
            (B) the court finds that the appointment of a special prosecutor is in the best interests of justice.
    (c) Each person appointed to serve as a special prosecutor:
        (1) must consent to the appointment; and
        (2) must be:
            (A) the prosecuting attorney or a deputy prosecuting attorney in a county other than the county in which the person is to serve as special prosecutor; or
            (B) except as provided in subsection (d), a senior prosecuting attorney.
    (d) A senior prosecuting attorney may be appointed in the county in which the senior prosecuting attorney previously served if the court finds that an appointment under this subsection would not create the appearance of impropriety.
    (e) A person appointed to serve as a special prosecutor has the same powers as the prosecuting attorney of the county. However, the appointing judge shall limit scope of the special prosecutor's duties to include only the investigation or prosecution of a particular case or particular grand jury investigation.
    (f) The court shall establish the length of the special prosecutor's term. If the target of an investigation by the special prosecutor is a public servant (as defined in IC 35-41-1-24), the court shall order the special prosecutor to file a report of the investigation with the court at the conclusion of the investigation. The report is a public record.
    (g) If the special prosecutor is not regularly employed as a full-time prosecuting attorney or full-time deputy prosecuting attorney, the compensation for the special prosecutor's services:
        (1) shall be paid to the special prosecutor from the unappropriated funds of the appointing county; and
        (2) may not exceed:
            (A) a per diem equal to the regular salary of a full-time prosecuting attorney of the appointing circuit; and
            (B) travel expenses and reasonable accommodation expenses

actually incurred.
    (h) If the special prosecutor is regularly employed as a full-time prosecuting attorney or deputy prosecuting attorney, the compensation for the special prosecutor's services:
        (1) shall be paid out of the appointing county's unappropriated funds to the treasurer of the county in which the special prosecutor regularly serves; and
        (2) must include a per diem equal to the regular salary of a full-time prosecuting attorney of the appointing circuit, travel expenses, and reasonable accommodation expenses actually incurred.
    (i) The combination of:
        (1) the compensation paid to a senior prosecuting attorney under this chapter; and
        (2) retirement benefits that the person appointed as a senior prosecuting attorney is receiving or entitled to receive;
may not exceed the minimum compensation to which a full-time prosecuting attorney is entitled under IC 33-39-6-5.
    (j) A senior prosecuting attorney appointed under this chapter may not be compensated as senior prosecuting attorney for more than one hundred (100) calendar days in total during a calendar year.