Daniels Seeks To Cover A_ _ In Wake Of Duke Hiring Of IURC's Top Lawyer

After the State Ethics Commission reached an untenable position that the state's one-year cooling off period for state employees doesn't apply to the hiring of the state's top utility lawyer at the Indiana Utility Regulatory Commission by Duke Energy, Goveror Daniels' office has sent a letter to the IURC expressing his view Scott Storms should have no communications with IURC during the next one-year period on any matter on behalf of Duke Energy. A letter authored by the Governor's general counsel, David Pippen, was obtained by the Indiana Law Blog and reads:

The Governor has been made aware of your General Counsel's hiring by Duke Energy ofindiana. I informed him of the Formal Ethics Opinion and the particular matter restrictions contained in the September, 2010 opinion. While the opinion may be technically correct, the Governor intended the ethics laws to reassure the public that state employees would not trade influence for personal gain. This letter should be read to explain our understanding of that opinion and of the spirit and letter of the ethics laws in Indiana, as strengthened in 2005 by the Governor's Executive Order and later by statute.

The Formal Opinion, No.1 0-1-11, makes clear that Mr. Storms is precluded from representing Duke in certain "particular matters" for the entire life of those matters and not just three hundred and sixty-five days following his departure from state employment. Matters before the Commission such as smart grid, demand side management as well as IURC review of the Edwardsport IGCC project have specific cause numbers associated with them, but the restriction on representation or assistance may apply to other matters which necessarily must consider the outcomes and impacts of those "particular matters".

Further, in keeping with the spirit as well as the letter of the Governor's Executive Order on ethics and the ethics statutes, we question whether any issue Duke Energy ofindiana may bring before the IURC in the next three hundred and sixty-five days could be divorced from the particular matter restrictions outlined by the Ethics Commission. Indiana Code 4-2-6-11 specifically considers the "circumstances surrounding the employment" and only issues unrelated to the "particular matters" raised in the next year would be conflict free for Mr. Storms to represent Duke's interests before the IURC. The Governor has asked me to inform you that we don't see any issues unrelated to the "particular matters" which may come up in the next year and as such would expect Mr. Storms not to appear before or assist on matters before the IURC for the three hundred and sixty-five days following his departure.

We are certain the IURC intends to abide by the letter and spirit of the ethics laws and that it shares our view that the formal ethics opinion for Mr. Storms contains significant restrictions on his duties as counsel for Duke Energy of Indiana. Had Duke seen fit to assign him out of state, this would have been clear to all. To be certain that the spirit of the laws are fully honored, the Governor asks that the IURC not entertain communications or have contact with Mr. Storms for the next twelve months.

If Governor Daniels believes the opinion issued by his Ethics Commission is "technically correct," then perhaps he should be entertaining a new revolving door law that actually has some teeth to it.