Category Archives: Local Government

Leadership Versus Pandering

Let me begin with a disclosure: Michael Leppert–whose recent blog post I will be echoing/quoting–is a personal friend. I have friends with whom I disagree from time to time, but thus far, I’ve found myself in agreement with Mike about pretty much everything–at least, everything political. (The joys of golf, not so much…)

If you don’t subscribe to his blog, you probably should.

Mike’s recent essay, reprinted in the Capital Chronicle, made a point pundits all too often fail to emphasize: the positions candidates take during their campaigns for public office tell us a lot about how they are likely to perform if they are successful.

I’ve made this poiint, albeit not as explicitly, by noting that candidates’ stances on reproductive liberty tell us a great deal about their willingness to use the power of government to impose their preferred beliefs on individuals who don’t share those beliefs. (Or, in the alternative, their willingness to impose the beliefs of the base to which they are pandering.) That’s why I take such positions into account even when the office for which the person is running is unlikely to have any say in the issue–it’s an important insight into the world-view of that candidate.

Of course, there are situations that do call for the exercise of state authority over private behavior. An obvious one is public health, and Leppert’s essay focuses on recent pronouncements by our odious U.S. Senator, Mike Braun, who is vacating that office because he now wants to be Indiana’s governor.

Last week, U.S. Sen. Mike Braun announced that he has co-authored the “Freedom to Breathe Act.” The federal legislation will ban the federal government’s ability to implement mask mandates for domestic air travel, public transit systems and schools.

Casey Smith reported for he Indiana Capital Chronicle last week on the bill Braun authored with three other Senate Republican colleagues. He first said in his Wednesday statement, “We’re not going to go back to the top-down government overreach we saw during COVID.”

Now, here’s the difference between Mike Leppert and Sheila Kennedy. When I read something as asinine as this, I just want to beat my head against the nearest wall and scream about logic and respect for science. Mike, to his credit, unpacks it:

This gubernatorial candidate has some kind of issue with “top-down” leadership? Even when he adds “overreach” to his canned statement, he is signaling how he would have led in 2020, or more aptly, how he would have chosen not to lead. Senator, in a crisis, “top-down” leadership is the name of the game. It’s the job for which you are running. And it is unlike filing dead-on-arrival legislation with three other members of congress looking only to “own the libs.”

After explaining what the purposefully mischaracterized studies actually say–that masks have demonstrably worked, but failure to comply with mask mandates caused thousands of unnecessary deaths–Mike writes that

There’s more to Braun’s statement. He added, “Congress needs to say forcefully that these ineffective, unscientific mask mandates are not coming back in any way, shape, or form.” Again, it’s not the masking, it’s the mandates that failed. Newsflash: Americans routinely resist governmental mandates. If there is a negative sociological companion to our culture’s independence, it often is our collective selfishness. Again, it’s not the masking, it’s our refusal to see how the selfless act of wearing one could help someone else.

But the pronouncement that Braun will not support mask mandates “coming back in any way, shape, or form,” telegraphs that if he faces a public health crisis as governor, he simply won’t lead through it.

It’s hard to disagree with the post’s conclusion:

The world learned plenty from COVID-19. The biggest lesson is to expect the unexpected. The next pandemic could be worse. It will likely be different. And Indiana has a contender for the office of governor who doesn’t want government to lead if or when it comes.

Indiana’s governor is already constitutionally weak by comparison to most states. We certainly don’t need a new one who wants to make it weaker.

Of course, let’s be honest. Braun doesn’t want to be a weaker governor–he wants to appeal to the ignorance and anti-science prejudices of the GOP base, in order to win the right to use the power of government selectively–to advance his own agenda.

That said, I have no idea what Braun’s agenda is, since we’ve seen nothing even approaching thoughtfulness or rational policy prescriptions from him during his single Senate term.

Apparently, like so many of today’s politicians, he just wants to be someone important, rather than wanting to do something constructive or useful.

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Ex Post Facto Rokita

The Indiana Citizen is among a variety of sources trying to fill the void left by Indianapolis’ “ghost newspaper,” the Indianapolis Star. Unlike several other such efforts, the Citizen doesn’t purport to be a digital newspaper-it’s a nonpartisan, non-profit platform “dedicated to increasing the number of informed, engaged Hoosier citizens.” Its creator, Bill Moreau, was focused on increasing informed voter turnout.

Of course, any effort to educate/motivate Hoosier voters requires coverage of the public servants (talk about a quaint phrase!) who are likely to be asking for those votes, and the Citizen is accordingly a valuable and non-biased source of such information. (If you live in Indiana and don’t already visit the site, you should.)

All this is by way of highlighting a recent report by the Citizen on our sleazy Attorney General, Todd Rokita, about whom I have previously posted numerous times. (If you type “Rokita” in the search bar, a number of posts will emerge–too many to link to.)

The Indianapolis woman trying to see the ethics opinion about Indiana Attorney General Todd Rokita’s previous moonlighting gig claims a last-minute legislative maneuver “engineered by Rokita and his confederates” intrudes on judicial authority in violation of the Indiana Constitution.

Barbara Tully made her arguments in a response to the attorney general’s attempt to keep private an informal advisory opinion from the Indiana Inspector General. Rokita requested the opinion shortly after he became attorney general, apparently to see if he could ethically perform his duties for the state while continuing to hold his job in the private sector with Apex Benefits.

His office claimed the inspector general found no ethical conflicts but refused to release the advisory opinion. After the Marion County Superior Court ordered in January that a copy of the opinion be given to Tully, Rokita was able to amend the inspector general statute making such opinions confidential, including those issued before the amended statute took effect.

He has since turned to the Court of Appeals of Indiana, filing Theodore Edward Rokita v. Barbara Tully, 323A-PL-705, and argued, in part, that Tully’s lawsuit is now moot under the new law. Tully counters Rokita is usurping the separation of powers clause in Article 3, Section 1 of the Indiana Constitution.

“This type of gamesmanship by a member of the executive branch to involve the legislative branch in judicial branch affairs violates the constitutionally-mandated separation of powers,” Tully asserts in her brief filed Wednesday. “This Court should decide this appeal based on the facts and law as they existed when the trial court entered its final judgment in favor of Tully.”

There is no suggestion that Tully is raising the issue of “ex post facto” laws; the posture of the case probably precludes that argument. Nevertheless, I couldn’t help thinking that Rokita’s efforts to hide that ethics document are inappropriate for much the same reason that the Founders made “ex post facto” laws unconstitutional.

If I can simply disadvantage a litigation opponent by using the power of my office to change the rules mid-stream, I make a mockery of the rule of law. As Tully argues in her brief,

This type of manipulation of the legislative process at the very least should diminish the normal presumption of constitutionality,” Tully asserts. “The apparent purpose of this amendment was to invalidate Tully’s judgment under (the Access to Public Records Act) without bothering to comply with normal legislative formalities and should warrant heightened judicial scrutiny ….

The article in the Citizen explains several of the legal arguments raised in the suit, but for non-lawyers, Rokita’s frenzied effort to keep the ethics opinion secret raises a more obvious question: what’s he so desperate to hide?

Back in 2021, I posted about the discovery that Rokita was still employed by the health benefits firm he’d worked for prior to assuming office, notwithstanding the fact that  being an AG is a 24-hour-a-day job–and the fact that as AG, he had investigative jurisdiction over his “other” employer…

Aside from that obvious conflict of interest, there was another small problem: Rokita’s dual employment violated even Indiana’s weak ethics law. (You’d think a lawyer–especially the state’s lawyer–might have noticed that.)

Indiana’s Ghost Employment Rule —found at 42 IAC 1-5-13–is summarized by the office of the Inspector General as follows: “Don’t work on anything outside your official job duties.”

So what could have been in that Ethics opinion Rokita has consistently and adamantly refused to make public?

Interestingly, after telling reporters that he’d obtained a letter from the then-Inspector General opining that his conduct somehow didn’t violate Indiana’s ethics law, Rokita hired that same Inspector General into a senior (and presumably well-compensated) position with the Attorney General’s office.

Nothing to see here, folks. Move along.

Or read the Indiana Citizen.

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Hamilton County And An Age-Old Story…

Back in 1995, when I was still at Indiana’s ACLU, I wrote a column about a “recurring fantasy” of mine, which I described as follows: a caveman discovers that he can produce drawings of the animals he hunts on the walls of his cave. Excited by the possibilities of his art, energized by the creative act, he produces a drawing–only to have it rubbed angrily off the cave wall by someone in his tribe who declares that the depiction of animal genitalia is indecent.

The first artist encounters the first censor, and a dynamic is born that is with us still!

Here in Indiana, there has been a takeover of the Hamilton County library board by some current descendants of my imagined angry tribesman. (Hamilton County is one of the “doughnut counties” surrounding Indianapolis, which occupies all of Marion County.)The new board immediately moved to “protect” children by requiring the library staff to review all of the books available to teenagers in the Young Adult section (at an estimated cost to the taxpayers of $300,000 ). Reports are that, out of the 1,859 physical books examined thus far, 1,385 have been moved from the Young Adult section to the Adult or General section.

One of the book moved was John Green’s best-selling “The Fault in Our Stars,” and Green sent–and publicized– an appropriately outraged message to the Board, triggering a national outcry, and a local petition to “Stop Censorship at Hamilton East Public Library.” (When I last looked, that petition had garnered some 3500 signatures.) As I write this, the turmoil has resulted in the (welcome) replacement of the library board’s president, a strong supporter of “protecting” children from reading  about things they can easily access on the internet and elsewhere.

The insistence that this exercise has been in furtherance of “parental rights” is equally ridiculous; a genuine concern for parental rights would respect the rights of all parents to determine what materials their children can access–not the right of some parents to determine what everyone else’s children can read.

No one said these people are smart. Just rabid.

I confess that I have never been able to understand the frantic need of so many of our fellow-citizens to control the habits and behaviors of the rest of us–habits and behaviors that do not affect them.

Nat Hentoff once wrote that the human animal’s urge to censor is stronger than its sex drive. In my days with the ACLU, I dealt regularly with folks who were absolutely convinced that they knew better than you and me what books we should read, what art we should see, and what musical lyrics the government should allow us to hear.

For those of us who believe that ideas matter, that literature and art are intensely important activities through which humans explore ideas, censorship poses a threat to our most important values. The government that can determine which ideas are worthy of consideration– and/or the age at which we should be allowed to consider them– is a government with power over the most important of all human functions–the power of the intellect.

In my long-ago fantasy, the caveman and his critic take their respective arguments to the leader of the cave clan. The censor insists that he and his friends find the drawing indecent, and argues that allowing smut in the cave will debauch the children and undermine the clan’s community standards. Another member argues the case for the artist: a society unwilling to consider all ideas will never leave the caves, will never reach the stars. A society willing to be ruled by the fears of the many will be deprived of the genius of the few.

In my dream, the leader considers the arguments and rules in favor of freedom of artistic expression. Civil liberties are born.

That, of course, was my fantasy. It remains to be seen whether civil liberties–not to mention common sense– will prevail in Hamilton County….Or, for that matter,  elsewhere in Indiana.

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What Is Rokita So Worried About?

Even before Donald Trump made it impossible for rational people to remain in the GOP, Indiana had more than its share of deeply problematic Republican officeholders. The office of Attorney General, especially, has often been occupied by ideologues and cranks. (I particularly remember the stories that lawyers shared about  “General” Sendak. And more recently, there was Curtis Hill, who hasn’t let his 3-month disbarment for inappropriate “groping” deter him from running for Governor.)

That said, it’s hard to identify an Attorney General more pathetic than the current occupant of that office. Todd Rokita is the “real deal”–if you define “deal” as unethical, monumentally ambitious, self-important and totally un-self-aware.

I’ve posted several times about Rokita, beginning when he was a Congressman accused of abusing his staff and more recently as he has relentlessly attacked the doctor who aborted a ten-year-old rape victim. Rokita accused her of failure to file paperwork, despite the fact that it took only a  cursory check to confirm they’d all been properly submitted.

Rokita  regularly falls over himself pandering to the  Hoosier MAGA crazies who oppose abortion, hate gays and want to outlaw “woke-ness” (which they can’t define.)

Being AG is a full-time job, but when Rokita first took office, he tried to keep (and hide) a lucrative side hustle (details at the link). Now, the Indianapolis Star has discovered that he requires lawyers working for his office to sign wide-ranging non-disclosure agreements.

Indiana Attorney General Todd Rokita’s employees are signing nondisclosure agreements that could cost them $25,000 if they share personal information about the AG — an unusual policy for state office and one that sets him apart from almost all other attorneys general in the country.

The contract, which IndyStar obtained through a public records request, gives Rokita and his staff the power to decide what information counts as confidential. It covers “personal or private information” about the attorney general, his employees and their families.

State offices here and dozens of other states’ attorney general offices told IndyStar they don’t have their employees sign contracts like this. Rokita’s office stands by it, however, and says its employees “understand this requirement” before they agree to work there.

Rokita doesn’t want his own information to be public, but his privacy concerns don’t extend to anyone else. In a letter he signed onto last month, Rokita opposed a federal proposal to block state officials from accessing information on residents’ reproductive health care services obtained outside the state.

Experts who reviewed Rokita’s NDA said it raised concerns about constraints on free speech and about the public’s right to know about the conduct of public business.

“The (NDA’s) definition of ‘confidential information’ seems designed to shield public officials from scrutiny,” contract law expert Michael Mattioli told IndyStar. “And that’s an essential part of living in a well-functioning democracy.”

Rokita declined to be interviewed. Instead, an office spokesperson sent a statement: “For any professional or executive, signing an NDA is a conventional office practice that has worked well to protect clients and employees alike.”

I haven’t practiced law lately, but in my lawyering days, signing a non-disclosure agreement was unheard of–and when I asked friends who still practice, most confirmed that  it remains very unconventional.

According to the Star,

The contract essentially gives Rokita and the AG’s office control over what an employee can say, both during and after employment. The stated rationale is that the employee will be “privy” to information that could be protected by laws and state professional conduct rules.

Typically, when information is protected by professional conduct rules, professionals can be trusted to observe those rules. An NDA isn’t needed. As the Star correctly notes, state and federal laws already protect confidential information received by public employees.

But it doesn’t stop there. It says Rokita and his office ultimately have the power to decide what information fits the definition of “confidential.”

That includes “all material, non-public, information, written, oral, or electronic … that is disclosed or made available to the receiving party, directly or indirectly, through any means of communication or observation …” The category also shields “personal or private information” about Rokita and his staff.

No other Indiana State office requires NDAs, although several deal in as much “sensitive” information as Rokita’s. AGs in most other states haven’t found the practice necessary.

Rokita’s overweening ambition probably plays a role– his appearances on Fox News and a trip he took to the U.S.-Mexico border last year have been widely panned as “headline shopping.” Given Rokita’s appetite for higher office, the sort of disclosures that might emerge–his “side hustle” comes to mind–would be distinctly unhelpful.

One ethics professor found the contract a “reprehensible attempt to intimidate.”

Makes one wonder what Rokita’s so intent on hiding….

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Quality Of Life

In a post a few days ago, I considered the GOP’s current definition of “crime”–noting that, to Republicans,  breaking federal rules is no longer criminal, and locally, “crime” only happens in Blue cities and states.

It’s another example of the widening perceptual gap between urban and rural Americans. City folks are increasingly Democratic; rural inhabitants increasingly Republican/MAGA.

Ideally, the decision where to live wouldn’t be viewed as political. Some people like owning tracts of land and being close to nature; others (like your truly) appreciate the energy generated by density and diversity. It is–or should be– simply a matter of individual preference.

Of course, it’s never that simple. Public policies matter.

There are measurable reasons that some places in America attract people, while others are emptying out. (Ironically, Red state culture war policies inflict the most damage on rural areas where residents are most supportive of those policies– anti-abortion laws have accelerated the departure of all doctors, not just ob-gyn practitioners, and educational vouchers hurt public schools in rural areas where thin population cannot support private alternatives).

For those who have a choice, the decision where to live often depends upon the perceived “quality of life,” an assessment of the amenities that make a city or state attractive to a majority of potential businesses and individuals.

Michael Hicks recently shared what the data tells us about that question.

Hicks began by noting that most of Indiana (and the Midwest generally)  is in economic decline. Projections are that more than 50 Hoosier counties will experience a declining population through 2060.

A dozen counties will be projected to grow faster than the nation through 2060. The remaining 30 or so will be projected to grow more slowly than the national rate—a pattern known as relative decline. Indiana and the Midwest will still be prosperous, in a global sense. But, relative to most of the nation, the coming decades will see us slipping farther away from the nation.

Research has identified the characteristics of places that do continue to attract residents.

Growing places almost always have most of the same positive attributes. Their schools are good and attractive to families, they are safe, their residents are better educated than average, and they have growing housing stock with good public infrastructure. Growing places enjoy recreational options, both private and public. And, there are few barriers to employment or starting a business, such as restrictive occupational licensing or heavy regulatory burdens

Research tells us that–duh!– when people aren’t moving to an area, it’s because they don’t wish to live there.

The primary reason people don’t wish to live in a place is that it doesn’t have the neighborhoods they want. The reasons for not moving to a place are as varied as human interests. But, for the median family, the common factors are that schools aren’t sufficiently good, crime is too high or infrastructure is too decayed.

That research also tells us that policymankers’ preferred emphasis on “economic development”–luring businesses–is misplaced. As Hicks notes,

No matter how successful a community is at luring new factories and warehouses, unless you can attract their highly paid workers to your town, it will have no lasting effect. If your business attraction efforts make your community less desirable for people, it will actually weaken your local economy. It is a costly business with inherent risks.

In the post-COVID world, people are increasingly mobile, making business attraction less important. Here there is some new policies. Some places are trying to attract remote workers through financial incentives. It is possible someone will figure out a magic incentive. However, the evidence I’ve seen suggests that fundamental conditions such as good schools, safe neighborhoods and recreational opportunities trump financial incentives every time.

Hicks stresses the importance of local government. I absolutely agree–in theory. Unfortunately, in Indiana, municipal governments are severely constrained by our retrograde state legislature.

In Indiana, cities and towns don’t have anything remotely like home rule: It took three legislative sessions to get permission to vote on a local tax to fund adequate transit. When Bloomington tried to ban plastic grocery bags, the legislature passed a bill divesting local governments of authority to do so. Education policies are dictated by a General Assembly determined to privatize public education. For years, dollars for street repair have been doled out based on “lane miles,” irrespective of the difference in traffic counts/wear and tear–a lane on a little-used county road gets funded the same as a lane on a traffic-choked Indianapolis thoroughfare. And efforts to address the number of guns on city streets run headlong into the resistance of “Second Amendment” fanatics in the Statehouse.

Those few among our legislative overlords who understand what Hicks is saying don’t care.

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