YES:
MR. SPEAKER:
Your Committee on Judiciary , to which was referred House Bill 1049 , has had
the same under consideration and begs leave to report the same back to the House with the
recommendation that said bill be amended as follows:
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.
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.
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.
and when so amended that said bill do pass.