Indiana Utility Regulatory Commission and Coal and State Government and Utilities and Government & Economic Development and Government

AG won't appeal ruling clearing ex-utility chief

June 5, 2014

A court decision dismissing ethics charges against former Indiana Utility Regulatory Commission Chairman David Lott Hardy will stand.

Spokesman Bryan Corbin said Thursday that the Indiana Attorney General's Office has determined that an appeal to the state Supreme Court "is likely unwinnable."

Hardy deferred comment to his attorney, David Hensel, who said Hardy was gratified with the Court of Appeals decision that he did not engage in criminal conduct and "glad it's over with and glad to put it behind him."

The Indiana Court of Appeals ruled April 29 that state ethics law in effect at the time Hardy was indicted in 2011 only covered criminal behavior and did not apply to administrative misconduct such as that of which Hardy was accused.

The crux of the argument was whether Hardy, who was fired by then-Gov. Mitch Daniels as part of an ethical scandal that eventually also cost three Duke Energy officials their jobs, should be charged with felony misconduct when he did not commit a crime.

Daniels fired Hardy as commission chairman in 2010 for ethical violations including that Hardy failed to disclose private meetings he had with Duke Energy executives about cost overruns at a coal-gasification power plant that the utility was building in southwestern Indiana. The 618-megawatt plant that went online last summer had an original 2007 cost estimate of $1.9 billion, but that eventually ballooned to about $3.5 billion.

Hardy was indicted by a Marion County grand jury on four felony counts of official misconduct in 2011. A Marion County judge later threw out those charges, saying Hardy couldn't be charged under changes the Legislature made in 2012.

The attorney general's office appealed, but the appellate court sided with the lower court judge.

The court said the revised misconduct law applies only to specific criminal offenses by public officials in the performance of their duties, not to violations of ethical or administrative rules.

The General Assembly narrowed the statute after the state inspector general sought clarification as a result of the scandal. The appellate court said lawmakers clearly intended for the change to be retroactive.

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