Citations Affected: IC 4-2-7-6; IC 4-6-3-2; IC 5-11; IC 12-23-14-16; IC 33-23-16;
IC 34-6-2-44.8; IC 33-23-16; IC 33-34-8; IC 33-37.
Synopsis: Courts, inspector general, and pro bono legal services fees. Conference committee report for EHB 1049. Provides that the cap on the fees for program services provided to a person participating in a court established alcohol and drug services program does not apply to fees for education or treatment and rehabilitation services. Provides that a person may participate in a problem solving court program as a condition of an informal adjustment program in a child in need of services proceeding. Eliminates an individual's agreement to the conditions of participation in the program if the case for which the individual is referred to the problem solving court involves a nonsuspendible sentence as a precondition to the placement of the individual in a problem solving court program. Allows a problem solving court to collect program fees. 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. Imposes until July 1, 2017, a pro bono legal services fee of $1 on parties who file certain civil actions, small claims actions, and probate actions. Requires the pro bono legal services fees to be transferred to the Indiana Bar Foundation as the entity designated by the Indiana supreme court to organize and administer the interest on lawyers trust accounts (IOLTA) program. Requires the Indiana Bar Foundation to: (1) deposit in an appropriate account and otherwise manage the fees the foundation receives in the same manner it deposits and manages the net earnings the foundation receives from IOLTA accounts; and (2) use the fees the foundation receives to assist or establish approved pro bono legal services programs. Specifies that the handling and expenditure of the pro bono legal services fees received by the Indiana Bar Foundation are subject to audit by the state board of accounts. Changes the definition of "family or house hold member" to include a person who adopts a child of the other person. (This conference committee report: (1) changes the sunset date for the language concerning pro bono legal services fees to July 1, 2017; (2) changes the definition of "family or house hold member" to include a person who adopts a child of the other person; (3) conforms language to SEA 287; and (4) removes language concerning the victims of serious crimes protection orders.)
MADAM PRESIDENT:
Your Conference Committee appointed to confer with a like committee from the House
upon Engrossed Senate Amendments to Engrossed House Bill No. 1049 respectfully reports
that said two committees have conferred and agreed as follows to wit:
that the House recede from its dissent from all Senate amendments and that
the House now concur in all Senate amendments to the bill and that the bill
be further amended as follows:
Delete everything after the enacting clause and insert the following:
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 a person who has failed to pay civil penalties imposed by
the ethics commission under IC 4-2-6-12.
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.
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.
program under IC 11-12-1.
(F) A condition of participation in a forensic diversion
program under IC 11-12-3.7.
(G) A condition of a community transition program under
IC 11-10-11.5.
(H) A condition of parole.
(I) An order in a dispositional decree under IC 31-34-20 to
participate in a family dependency drug court if the individual
is a parent, guardian, or another household member of a child
adjudicated a child in need of services.
(J) A condition of an informal adjustment program under
IC 31-37-9.
(K) Involvement in:
(i) a child support proceeding;
(ii) a mental health commitment; or
(iii) a civil protection proceeding.
(L) A condition of an informal adjustment program under
IC 31-34-8.
township general fund of the township in which the court is located.
The county auditor shall deposit fees distributed under subdivision (2)
into the clerk's record perpetuation fund under IC 33-37-5-2.
(c) The court semiannually shall pay to the township trustee of the
township in which the court is located the remaining forty percent
(40%) of the court administration fees described under subsection
(b)(1)(C) to fund the operations of the small claims court in the
trustee's township.
fees collected under IC 33-37-4-1(b)(7).
(4) One hundred percent (100%) of the domestic violence
prevention and treatment fees collected under IC 33-37-4-1(b)(8).
(5) One hundred percent (100%) of the highway work zone fees
collected under IC 33-37-4-1(b)(9) and IC 33-37-4-2(b)(5).
(6) One hundred percent (100%) of the safe schools fee collected
under IC 33-37-5-18.
(7) The following:
(A) For a county operating under the state's automated judicial
system, one hundred percent (100%) of the automated record
keeping fee (IC 33-37-5-21) not distributed under subsection
(a).
(B) For a county not operating under the state's automated
judicial system, eighty percent (80%) of the automated record
keeping fee (IC 33-37-5-21) not distributed under subsection
(a).
(c) The clerk of a circuit court shall distribute monthly to the county
auditor the following:
(1) Seventy-five percent (75%) of the drug abuse, prosecution,
interdiction, and correction fees collected under
IC 33-37-4-1(b)(5).
(2) Seventy-five percent (75%) of the alcohol and drug
countermeasures fees collected under IC 33-37-4-1(b)(6),
IC 33-37-4-2(b)(4), and IC 33-37-4-3(b)(5).
The county auditor shall deposit fees distributed by a clerk under this
subsection into the county drug free community fund established under
IC 5-2-11.
(d) The clerk of a circuit court shall distribute monthly to the county
auditor one hundred percent (100%) of the late payment fees collected
under IC 33-37-5-22. The county auditor shall deposit fees distributed
by a clerk under this subsection as follows:
(1) If directed to do so by an ordinance adopted by the county
fiscal body, the county auditor shall deposit forty percent (40%)
of the fees in the clerk's record perpetuation fund established
under IC 33-37-5-2 and sixty percent (60%) of the fees in the
county general fund.
(2) If the county fiscal body has not adopted an ordinance
described in subdivision (1), the county auditor shall deposit all
the fees in the county general fund.
(e) The clerk of the circuit court shall distribute semiannually to the
auditor of state for deposit in the sexual assault victims assistance
account established by IC 5-2-6-23(h) one hundred percent (100%) of
the sexual assault victims assistance fees collected under
IC 33-37-5-23.
(f) The clerk of a circuit court shall distribute monthly to the county
auditor the following:
(1) One hundred percent (100%) of the support and maintenance
fees for cases designated as non-Title IV-D child support cases in
the Indiana support enforcement tracking system (ISETS) or the
successor statewide automated support enforcement system
collected under IC 33-37-5-6.
(2) The percentage share of the support and maintenance fees for
cases designated as Title IV-D child support cases in ISETS or the
successor statewide automated support enforcement system
collected under IC 33-37-5-6 that is reimbursable to the county at
the federal financial participation rate.
The county clerk shall distribute monthly to the department of child
services the percentage share of the support and maintenance fees for
cases designated as Title IV-D child support cases in ISETS, or the
successor statewide automated support enforcement system, collected
under IC 33-37-5-6 that is not reimbursable to the county at the
applicable federal financial participation rate.
(g) The clerk of a circuit court shall distribute monthly to the county
auditor the following:
(1) One hundred percent (100%) of the small claims service fee
under IC 33-37-4-6(a)(1)(B) or IC 33-37-4-6(a)(2) for deposit in
the county general fund.
(2) One hundred percent (100%) of the small claims garnishee
service fee under IC 33-37-4-6(a)(1)(C) or IC 33-37-4-6(a)(3) for
deposit in the county general fund.
(h) This subsection does not apply to court administration fees
collected in small claims actions filed in a court described in IC 33-34.
The clerk of a circuit court shall semiannually distribute to the auditor
of state for deposit in the state general fund one hundred percent
(100%) of the following:
(1) The public defense administration fee collected under
IC 33-37-5-21.2.
(2) The judicial salaries fees collected under IC 33-37-5-26.
(3) The DNA sample processing fees collected under
IC 33-37-5-26.2.
(4) The court administration fees collected under IC 33-37-5-27.
(i) The clerk of a circuit court shall semiannually distribute to the
auditor of state for deposit in the judicial branch insurance adjustment
account established by IC 33-38-5-8.2 one hundred percent (100%) of
the judicial insurance adjustment fee collected under IC 33-37-5-25.
(j) The proceeds of the service fee collected under
IC 33-37-5-28(b)(1) or IC 33-37-5-28(b)(2) shall be distributed as
follows:
(1) The clerk shall distribute one hundred percent (100%) of the
service fees collected in a circuit, superior, county, or probate
court to the county auditor for deposit in the county general fund.
(2) The clerk shall distribute one hundred percent (100%) of the
service fees collected in a city or town court to the city or town
fiscal officer for deposit in the city or town general fund.
(k) The proceeds of the garnishee service fee collected under
IC 33-37-5-28(b)(3) or IC 33-37-5-28(b)(4) shall be distributed as
follows:
(1) The clerk shall distribute one hundred percent (100%) of the
garnishee service fees collected in a circuit, superior, county, or
probate court to the county auditor for deposit in the county
general fund.
(2) The clerk shall distribute one hundred percent (100%) of the
garnishee service fees collected in a city or town court to the city
or town fiscal officer for deposit in the city or town general fund.
(l) The clerk of the circuit court shall distribute semiannually to the
auditor of state for deposit in the home ownership education account
established by IC 5-20-1-27 one hundred percent (100%) of the
following:
(1) The mortgage foreclosure counseling and education fees
collected under IC 33-37-5-30 (before its expiration on January
1, 2013).
(2) Any civil penalties imposed and collected by a court for a
violation of a court order in a foreclosure action under
IC 32-30-10.5.
(m) This subsection applies to a county that is not operating under
the state's automated judicial system. The clerk of a circuit court shall
distribute monthly to the county auditor twenty percent (20%) of the
automated record keeping fee (IC 33-37-5-21) not distributed under
subsection (a) for deposit in the clerk's record perpetuation fund.
(n) The clerk of a circuit court shall distribute semiannually to
the auditor of state one hundred percent (100%) of the pro bono
legal services fees collected before July 1, 2017, under
IC 33-37-5-31. The auditor of state shall transfer semiannually the
pro bono legal services fees to the Indiana Bar Foundation (or a
successor entity) as the entity designated to organize and
administer the interest on lawyers trust accounts (IOLTA)
program under Rule 1.15 of the Rules of Professional Conduct of
the Indiana supreme court. The Indiana Bar Foundation shall:
(1) deposit in an appropriate account and otherwise manage
the fees the Indiana Bar Foundation receives under this
subsection in the same manner the Indiana Bar Foundation
deposits and manages the net earnings the Indiana Bar
Foundation receives from IOLTA accounts; and
(2) use the fees the Indiana Bar Foundation receives under
this subsection to assist or establish approved pro bono legal
services programs.
The handling and expenditure of the pro bono legal services fees
received under this section by the Indiana Bar Foundation (or its
successor entity) are subject to audit by the state board of
accounts. The amounts necessary to make the transfers required
by this subsection are appropriated from the state general fund.
fifty-five percent (55%) of the amount of fees collected under the
following:
(1) IC 33-37-4-1(a) (criminal costs fees).
(2) IC 33-37-4-2(a) (infraction or ordinance violation costs fees).
(3) IC 33-37-4-4(a) (civil costs fees).
(4) IC 33-37-4-6(a)(1)(A) (small claims costs fees).
(5) IC 33-37-5-17 (deferred prosecution fees).
(b) The city or town fiscal officer shall distribute monthly to the
county auditor as the county share twenty percent (20%) of the amount
of fees collected under the following:
(1) IC 33-37-4-1(a) (criminal costs fees).
(2) IC 33-37-4-2(a) (infraction or ordinance violation costs fees).
(3) IC 33-37-4-4(a) (civil costs fees).
(4) IC 33-37-4-6(a)(1)(A) (small claims costs fees).
(5) IC 33-37-5-17 (deferred prosecution fees).
(c) The city or town fiscal officer shall retain twenty-five percent
(25%) as the city or town share of the fees collected under the
following:
(1) IC 33-37-4-1(a) (criminal costs fees).
(2) IC 33-37-4-2(a) (infraction or ordinance violation costs fees).
(3) IC 33-37-4-4(a) (civil costs fees).
(4) IC 33-37-4-6(a)(1)(A) (small claims costs fees).
(5) IC 33-37-5-17 (deferred prosecution fees).
(d) The clerk of a city or town court shall distribute semiannually to
the auditor of state for deposit in the state user fee fund established in
IC 33-37-9 the following:
(1) Twenty-five percent (25%) of the drug abuse, prosecution,
interdiction, and correction fees collected under
IC 33-37-4-1(b)(5).
(2) Twenty-five percent (25%) of the alcohol and drug
countermeasures fees collected under IC 33-37-4-1(b)(6),
IC 33-37-4-2(b)(4), and IC 33-37-4-3(b)(5).
(3) One hundred percent (100%) of the highway work zone fees
collected under IC 33-37-4-1(b)(9) and IC 33-37-4-2(b)(5).
(4) One hundred percent (100%) of the safe schools fee collected
under IC 33-37-5-18.
(5) One hundred percent (100%) of the automated record keeping
fee (IC 33-37-5-21) not distributed under subsection (a).
(e) The clerk of a city or town court shall distribute monthly to the
county auditor the following:
(1) Seventy-five percent (75%) of the drug abuse, prosecution,
interdiction, and corrections fees collected under
IC 33-37-4-1(b)(5).
(2) Seventy-five percent (75%) of the alcohol and drug
countermeasures fees collected under IC 33-37-4-1(b)(6),
IC 33-37-4-2(b)(4), and IC 33-37-4-3(b)(5).
The county auditor shall deposit fees distributed by a clerk under this
subsection into the county drug free community fund established under
IC 5-2-11.
(f) The clerk of a city or town court shall distribute monthly to the
city or town fiscal officer (as defined in IC 36-1-2-7) one hundred
percent (100%) of the following:
(1) The late payment fees collected under IC 33-37-5-22.
(2) The small claims service fee collected under
IC 33-37-4-6(a)(1)(B) or IC 33-37-4-6(a)(2).
(3) The small claims garnishee service fee collected under
IC 33-37-4-6(a)(1)(C) or IC 33-37-4-6(a)(3).
The city or town fiscal officer (as defined in IC 36-1-2-7) shall deposit
fees distributed by a clerk under this subsection in the city or town
general fund.
(g) The clerk of a city or town court shall semiannually distribute to
the auditor of state for deposit in the state general fund one hundred
percent (100%) of the following:
(1) The public defense administration fee collected under
IC 33-37-5-21.2.
(2) The DNA sample processing fees collected under
IC 33-37-5-26.2.
(3) The court administration fees collected under IC 33-37-5-27.
(h) The clerk of a city or town court shall semiannually distribute to
the auditor of state for deposit in the judicial branch insurance
adjustment account established by IC 33-38-5-8.2 one hundred percent
(100%) of the judicial insurance adjustment fee collected under
IC 33-37-5-25.
(i) The clerk of a city or town court shall semiannually distribute to
the auditor of state for deposit in the state general fund seventy-five
percent (75%) of the judicial salaries fee collected under
IC 33-37-5-26. The city or town fiscal officer shall retain twenty-five
percent (25%) of the judicial salaries fee collected under
IC 33-37-5-26. The funds retained by the city or town shall be
prioritized to fund city or town court operations.
(j) The clerk of a city or town court shall distribute
semiannually to the auditor of state one hundred percent (100%)
of the pro bono legal services fees collected before July 1, 2017,
under IC 33-37-5-31. The auditor of state shall transfer
semiannually the pro bono legal services fees to the Indiana Bar
Foundation (or a successor entity) as the entity designated to
organize and administer the interest on lawyers trust accounts
(IOLTA) program under Rule 1.15 of the Rules of Professional
Conduct of the Indiana supreme court. The Indiana Bar
Foundation shall:
(1) deposit in an appropriate account and otherwise manage
the fees the Indiana Bar Foundation receives under this
subsection in the same manner the Indiana Bar Foundation
deposits and manages the net earnings the Indiana Bar
Foundation receives from IOLTA accounts; and
(2) use the fees the Indiana Bar Foundation receives under
this subsection to assist or establish approved pro bono legal
services programs.
The handling and expenditure of the pro bono legal services fees
received under this section by the Indiana Bar Foundation (or its
successor entity) are subject to audit by the state board of
accounts. The amounts necessary to make the transfers required
by this subsection are appropriated from the state general fund.
(Reference is to EHB 1049 as reprinted February 28, 2012.)
S
igned by:
____________________________ ____________________________
Representative Koch Senator Bray
Chairperson
____________________________ ____________________________
Representative Pierce Senator Lanane
House Conferees Senate Conferees