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Thursday, May 11, 2006

Ind. Law - The status of executive orders in Indiana

The General Assembly makes law by enacting statutes; the Supreme Court makes law by writing opinions; the Governor makes law by issuing executive orders. The devil is in the details of the interactions between the three.

For the April 2006 issue of Res Gestae, I wrote a column about executive orders, signing statements and vetos at both the federal and state level. The focus was on what they are, why they are important, and their accessibility. My conclusion was that these important documents are often inaccessible at the Indiana state government level.

For the May 2006 issue of Res Gestae, I have written an in-depth column about the use of executive orders by Indiana governors. Two issues are examined:

(1) Does a governor’s executive order continue in effect when his term is over?

(2) Can the general assembly by passing a statute preempt an area – thereby invalidating an executive order on the same subject?

I was completing the article on May 2nd, the same day the story broke about the contract between a former high-ranking FSSA official and the agency. The first ILB entry on the FSSA issues was May 2, quoting from a Fort Wayne Journal Gazette story headed "State FSSA exec goes from public to private at twice the price."

In an ILB entry the following day, I concluded:

The applicable law here appears to be IC 4-2-6-11, which was amended this year by HEA 1397, SECTION 10 (pp. 13-14). Although the law at subsections (b) and (c) would appear to clearly prohibit this type of arrangement, subsection (e) and a new subsection (g) allow the law to waived by the ethics commission or the appointing authority. Also of interest here is Governor Daniel's Executive Order 05-12.
I was able to obtain copies of the opinion of the FSSA general counsel and two informal opinions of the director of the State Ethics Commission on the validity of the FSSA arrangement and analyzed them in this May 7th ILB entry. Near the end of the entry, I asked: What of Executive Order 05-12, paragraph 8, which appeared to be directly applicable.

I am posting the May Res Gestae column now, rather than waiting until the entire issue arrives in the mail, because the FSSA situation highlights important questions about the staus of executive orders in Indiana law. Here is a quote from the column (footnotes, which are well worth reading, have been deleted here). The entire article may be obtained here.

When Governor Daniels took office in January of 2005, he immediately put in place Executive Order 5-12, “establishing rules of conduct for state officers, employees, and special appointees.”

The relevant statutory provision then in effect, IC 4-2-6-11 , prohibited a former state employee who had had responsibility for any of a list of twelve items, including a contract, an enforcement proceeding, or a public works project, and excluding a legislative matter or administrative policy or rule, from representing a person on that matter for a one-year period, unless the agency involved waived the prohibition as “not in the public interest.”

Also in effect when Daniels took office was Executive Order 04-10, issued by Governor Kernan on April 27, 2004, which placed some limits on senior-level executive branch employees leaving state government for a year from attempting to influence their former agency on behalf of any other person – the “revolving door” prohibition.

Governor Daniels’ order expressly incorporates the terms of Governor Kernan’s prior order. Further, it specifically prohibits both legislative lobbying and executive branch lobbying by former state employees.

In short, Governor Daniels’ Executive Order 5-12 was more stringent that the then-existing statute law set out in IC 4-2-6-11. Was the Governor free to impose stricter requirements on executive branch employees, or did the prior existence of the statute pre-empt the area? [And what of subsequent amendments to the statute?]

The impact of legislative action on the effectiveness of Executive Orders has come up in at least two recent administrative rulings and one law suit filed this year. ***

[After several pages of analysis of the rulings and pending lawsuit, the column concludes]

These two advisory opinions and the pending lawsuit indicate that the legal implications of the interplay between executive orders and statute law have just begun to be explored in Indiana.

Posted by Marcia Oddi on May 11, 2006 11:12 AM
Posted to Indiana Government | Indiana Law