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Waiver on the way

Ethics loophole should be plugged promptly

There may be another leak to plug when the legislature re-evaluates Indiana's ethics code.

The Journal Gazette's Niki Kelly reported this weekend on a peculiar feature of the part of Indiana's code dealing with executive-branch employees who leave public service and go to work for companies that do business with the state.

Since 2005, Indiana has mandated a cooling-off period of one year. That rule is designed to prevent the revolving door effect of a government employee giving special treatment to a potential employer in the private sector or a former public servant getting hired to use his or her inside knowledge and connections to give a new employer an edge with officials.

In writing, the rule is pretty straightforward. Under “post-employment restrictions – summary of the rule,” the inspector general's ethics page has this sentence: “Don't go to work for a company that did work for you as a state employee.”

If there's a question of whether an employee might be compromised, the Indiana inspector general is ready to resolve it.

But as Kelly reported, there's a way to get around all that.

A waiver.

That's right – the head of a state agency can write a former employee a waiver that excuses him or her from the wait-a-year rule, or even, apparently, from worrying about what the state calls “particular matters” – conflicts in which a former official can never represent a private employer.

The inspector general, David Thomas, generally defended the concept. Thomas told Kelly the head of an employee's department is in the best position to know how involved that person was in a potentially conflicting matter and thus whether a waiver is appropriate. And he noted that all of the more than 100 waivers that have been granted in the nine years since the law went into effect are a part of public record. Thomas also contends that the waiver provision might protect the Indiana law from being declared unconstitutionally limiting.

But some of the waiver cases recounted in Kelly's article and a story on the same subject in The Indianapolis Star Sunday certainly give one pause.

• Just before Superintendent of Public Instruction Glenda Ritz took office in 2013, the Department of Education issued five waivers to employees who had worked under defeated Superintendent Tony Bennett.

One was issued to Jon Gubera, who had taken a job with the College Entrance Examination Board several months earlier. In the waiver letter, Kelly reported, “chief of staff Heather Neal said Jon Gubera 'possesses the personal qualities of honesty and integrity that would mitigate any adverse results to the IDOE.' ”

The personal qualities of the former employee would seem to have little to do with a rule that is supposed to identify inherent conflicts of interest.

• After Paul Dubenetzky retired as head of the state's air-quality permit program, he asked his former boss, Indiana Department of Environmental Management Director Thomas Easterly, for a waiver. Dubenetzky, The Star reported, was representing some large air polluters, and his former colleagues at IDEM were uncomfortable dealing with him.

“Easterly placed a condition in the waiver – that Dubenetzky was not to speak to IDEM staffers for a few months – but he was otherwise good to go,” The Star wrote.

• Last year, Amy Cornell left the Department of Agriculture to work for the Indiana Farm Bureau. Gina Sheets, the state department's director at the time, waived the one-year prohibition against Cornell lobbying the department, writing that Cornell's presence at the Farm Bureau would be “extremely beneficial to us,” The Star reported.

Kelly reported that the most waivers – seven – have been issued by the state's Department of Transportation. Indeed, Gov. Mike Pence himself wrote a waiver for then-Commissioner Michael Cline, who became vice president of physical facilities at Purdue.

“INDOT has dealings with Purdue,” Kelly noted, “including two major programs involving millions in contracts.” Pence concluded that Cline had only limited involvement with the Purdue contracts, which were handled by staff members.

No cases of wrongdoing were unearthed. But the process undercuts the sense of trust and fair play that an ethics code is supposed to promote.

The legislature should look hard at the waiver provision as part of the ethical overhaul that we hope is coming at the Statehouse early next year.