party was dismissed for a political, social, religious, or racial reason,
the appealing party shall be reinstated to the appealing party's position
without loss of pay. In all other cases, if the decision is favorable to the
appealing party, the secretary of state shall follow the findings and
recommendations of the board, which may include reinstatement and
payment of salary or wages lost. The hearing and any subsequent
proceedings or appeals shall be governed by the provisions of IC 4-15-2
and IC 4-21.5.
(c) Fees and funds of whatever character accruing from the
administration of this chapter shall be accounted for by the secretary of
state and shall be deposited with the treasurer of state to be deposited
by the treasurer of state in the general fund of the state. Expenses
incurred in the administration of this chapter shall be paid from the
general fund upon appropriation being made for the expenses in the
manner provided by law for the making of those appropriations.
However, costs of investigations recovered under sections 16(d) and
17.1(c) of this chapter shall be deposited with the treasurer of state to
be deposited by the treasurer of state in a separate account to be known
as the securities division enforcement account. The funds in the account
shall be available, with the approval of the budget agency, to augment
and supplement the funds appropriated for the administration of this
chapter. The funds in the account do not revert to the general fund at
the end of any fiscal year.
(d) In connection with the administration and enforcement of the
provisions of this chapter, the attorney general shall render all
necessary assistance to the securities commissioner upon the
commissioner's request, and to that end, the attorney general shall
employ legal and other professional services as are necessary to
adequately and fully perform the service under the direction of the
securities commissioner as the demands of the securities division shall
require. Expenses incurred by the attorney general for the purposes
stated in this subsection shall be chargeable against and paid out of
funds appropriated to the attorney general for the administration of the
attorney general's office.
(e) Neither the secretary of state, the securities commissioner, nor an
employee of the securities division shall be liable in their individual
capacity, except to the state, for an act done or omitted in connection
with the performance of their respective duties under this chapter.
(f) The commissioner, subject to the approval of the secretary of
state, may adopt rules, orders, and forms necessary to carry out this
chapter, including rules and forms concerning registration statements,
applications, reports, and the definitions of any terms if the definitions
are consistent with this chapter. The commissioner may by rule or order
allow for exemptions from registration requirements under sections 3
and 8 of this chapter if the exemptions are consistent with the public
interest and this chapter.
(g) The provisions of this chapter delegating and granting power to
the secretary of state, the securities division, and the securities
commissioner shall be liberally construed to the end that:
(1) the practice or commission of fraud may be prohibited and
prevented;
(2) disclosure of sufficient and reliable information in order to
afford reasonable opportunity for the exercise of independent
judgment of the persons involved may be assured; and
(3) the qualifications may be prescribed to assure availability of
reliable broker-dealers, investment advisers, and agents engaged
in and in connection with the issuance, barter, sale, purchase,
transfer, or disposition of securities in this state.
It is the intent and purpose of this chapter to delegate and grant to and
vest in the secretary of state, the securities division, and the securities
commissioner full and complete power to carry into effect and
accomplish the purpose of this chapter and to charge them with full and
complete responsibility for its effective administration.
(h) It is the duty of a prosecuting attorney, as well as of the attorney
general, to assist the securities commissioner upon the commissioner's
request in the prosecution to final judgment of a violation of the penal
provisions of this chapter and in a civil proceeding or action arising
under this chapter. If the commissioner determines that an action based
on the securities division's investigations is meritorious:
(1) the commissioner or a designee empowered by the
commissioner shall certify the facts drawn from the investigation
to the prosecuting attorney of the judicial circuit in which the
crime may have been committed;
(2) the commissioner and the securities division shall assist the
prosecuting attorney in prosecuting an action under this section,
which may include a securities division attorney serving as a
special deputy prosecutor appointed by the prosecuting attorney;
(3) a prosecuting attorney to whom facts concerning fraud are
certified under subdivision (1) may refer the matter to the attorney
general; and
(4) if a matter has been referred to the attorney general under
subdivision (3), the attorney general may:
(A) file an information in a court with jurisdiction over the
matter in the county in which the offense is alleged to have
been committed; and
(B) prosecute the alleged offense.
(i) The securities commissioner shall take, prescribe, and file the
oath of office prescribed by law. The securities commissioner, senior
investigator, and each deputy are police officers of the state and shall
have all the powers and duties of police officers in making arrests for
violations of this chapter, or in serving any process, notice, or order
connected with the enforcement of this chapter by whatever officer or
authority or court issued. The securities commissioner, the deputy
commissioners for enforcement, and the investigators comprise the
enforcement department of the division and are considered a criminal
justice agency for purposes of IC 5-2-4 and IC 10-13-3.
(j) Upon request of the attorney general, the securities
commissioner shall assist the attorney general in a securities fraud
investigation under IC 4-6-2-12 concerning securities owned by the
public employees' retirement fund (IC 5-10.3-2-1) or the Indiana
state teachers' retirement fund (IC 21-6.1-2-1). Expenses incurred
by the security commissioner in assisting the attorney general in an
investigation under IC 4-6-2-12 shall be paid by the secretary of
state from funds appropriated for the administration of this
chapter.
(j) (k) The securities commissioner and each employee of the
securities division shall be reimbursed for necessary hotel and travel
expenses when required to travel on official duty. Hotel and travel
reimbursements shall be paid in accordance with the travel regulations
prescribed by the budget agency.
(k) (l) It is unlawful for the secretary of state, the securities
commissioner, or the securities division's employees to use for personal
benefit information that is filed with or obtained by the securities
division and that is not made public. No provision of this chapter
authorizes the secretary of state, the securities commissioner, or the
employees of the securities division to disclose information except
among themselves, or when necessary or appropriate, in a proceeding
or investigation under this chapter. No provision of this chapter either
creates or derogates from a privilege that exists at common law or
otherwise when documentary or other evidence is sought under a
subpoena directed to the secretary of state, the securities commissioner,
or the securities division or its employees.
(l) (m) The commissioner may honor requests from interested
persons for interpretative opinions and from interested persons for
determinations that the commissioner will not institute enforcement
proceedings against specified persons for specified activities. A
determination not to institute enforcement proceedings must be
consistent with this chapter. A person may not request an interpretive
opinion concerning an activity that:
(1) occurred before; or
(2) is occurring on;
the date that the opinion is requested. The commissioner shall charge
a fee of one hundred dollars ($100) for an interpretative opinion or
determination.".
Renumber all SECTIONS consecutively.
(Reference is to HB 1165 as printed January 28, 2005.)