Saturday, December 18, 2010

State Superintendent Bennett Avoids Blaming Attorney General Zoeller for Not Insisting Prosecutors Pay Civil Forfeiture Money Owed to School Fund

There isn't a statewide public official I have more respect for than Superintendent of Public Instruction Tony Bennett. From the beginning he aggressively used his office to promote the issue of education reform. In doing so, he's taken on deeply entrenched interests in the education community. I haven't agreed with everything he's done, but his approach to government activism should be a model for Republicans and Democrats.

The contrast between Bennett and Attorney General Greg Zoeller's approach to their jobs could not be greater. Zoeller and his boss before him, AG Steve Carter, are constantly making excuses about why they can't take action to protect the public. When I headed the Title Insurance Division, I dealt with real estate regulators throughout state government. Every last one of them complained about the AG's office not doing its job regulating appraisers, real estate agents and other real estate players.

As one example, under the Real Estate Settlement and Procedures Act (RESPA), the state attorneys general are to enforce the law. When other state regulators pointed out that provision to the AG's office, the response was that AG wasn't sure he could enforce the law. Shortly thereafter, the Indiana General Assembly passed a law specifically telling the AG to enforce RESPA. Once again, the AG responded that he wasn't sure he could enforce the law.

That's only one of many, many examples of where the Attorney General's office, under both Steve Carter and Greg Zoeller, has refused to enforce the law, leaving Hoosiers unprotected.

Fast forward to this morning, the Indianapolis Star ran an article saying that Bennett and Zoeller intend to recommend that the legislature set a fixed percentage law enforcement and the schools are to get from civil forfeitures. Here's an excerpt from that article, concentrating on Bennett's comments:
Indiana's vague and much-disputed forfeiture law promises both police and schoolchildren a cut of the money the state seizes from criminals. Now, the state's top education official and the state's top law enforcement official say they will work together to clarify the law and share the funds.

Attorney General Greg Zoeller and State Superintendent of Public Instruction Tony Bennett told The Indianapolis Star they have met and informally discussed potential
revisions to the state's forfeiture law.


"I certainly wish we could have come to a solution before," Bennett said.


But until controversy began swirling around the issue this year -- prompted by a disciplinary case against a prosecutor who was paying himself with forfeiture money -- Bennett said he thought the small portion of forfeiture money the schools received was all they were entitled to.

Zoeller and Bennett said they favor a new law that would divide the money up by percentage rather than allowing each prosecutor to calculate how much he or she keeps. But it's not clear yet what the distribution would be.


Bennett played no role in the lawsuit and disagrees with a central premise: that prosecutors intentionally ignored an obligation to turn over money to the schools. Like Zoeller, Bennett thinks the prosecutors were doing the best they could to interpret an unclear law.

And while it would have been nice to have had a steadier flow of forfeiture money into the Common School Fund in the past, Bennett said, this is an ideal time for an uptick in that funding source. The state is increasingly using technology to measure students' progress, and charter schools are a centerpiece of Gov. Mitch Daniels' recently unveiled education reform plan.

Bennett and Steve Johnson of the Indiana Prosecuting Attorneys Council -- who is also participating in brainstorming the new law -- say they also are open to legislative changes that would direct the schools' portion of the money to other funds.
I understand Bennett is in a tough position politically. He is a Republican dealing with a Republican Attorney General and scores of Republican country prosecutors throughout the state, all of which wield political power in their communities. Bennett though has to know that this is not as the reporter characterized his comments a situation where the prosecutors were "doing the best they could to interpret an unclear law."

While it is not clear how to determine "law enforcement costs," the legal requirement that excess funds above law enforcement costs be paid to the Common School Fund is crystal clear. Those are two distinct concepts. Bennett is not an attorney and not familiar with the law but Zoeller is and he has to know he is being intellectually dishonest in running these two concepts.

Most county prosecutors do not even bother to determine law enforcement costs and haven't for years. They have been just pocketing all the money. Marion County apportions a set percent to each law enforcement agency - the same on every case - regardless of law enforcement costs. Nothing gets paid to the Common School Fund. In the last 3 years, county prosecutors in the State of Indiana paid a total of $95,500 into the Common School Fund through civil forfeiture. (Marion County took in about $2 million in civil forfeiture last year. ) Only five of the 92 counties paid anything. This isn't some innocent misinterpretation of the law by prosecutors. They were intentionally keeping money they knew weren't "law enforcement costs" and belonged to the Common School Fund.

Bennett says he didn't know the Common School Fund was entitled to more civil forfeiture money than it was receiving. I have no doubt that's true. But you know who did know? Greg Zoeller. Attorney General Zoeller has known for years that prosecutors were keeping money that belonged to the state's schools and did absolutely nothing, just like his predecessor Steve Carter. In fact, the history of the Indiana Attorney General looking the other way on civil forfeiture goes back maybe as much as two decades.

Zoeller, and Carter before him could have enforced the civil forfeiture law and demanded that excess civil forfeiture money be paid to the Common School Fund. Zoeller, perhaps working with Steve Johnson of the Indiana Prosecuting Attorney's Council, could have enacted guidelines to ensure that the prosecutors were following the law. But Zoeller was perfectly happy with prosecutors pocketing money that did not belong to them.

Even after the Indianapolis Star began publishing its expose on the abuse of Indiana's civil forfeiture law, Zoeller sat on the sidelines. Zoeller, who is always pandering to county prosecutors he calls his "clients" (apparently Zoeller is unaware he has a legal obligation to ensure public officials follow the law), did not advocate any sort of reform. It was only after our law firm filed the qui tam whistleblowing lawsuit (to do what the Attorney General always had the power to do), that Zoeller finally came out in favor of legislative reform. Although our lawsuit is maligned in the Star article by Zoeller and Bennett, the fact is without that lawsuit Zoeller would never have come out against prosecutors continuing to pocket all of the civil forfeiture money for law enforcement.

Whether one likes Bennett's policies or not, he's the type of public servant, someone who aggressively uses his position to stand up for what he believes is in the best interest of Hoosiers, that we should want in office. It is shame that Bennett is stuck defending his antithesis in Attorney General Greg Zoeller, a statewide elected official who believes his job is to come up with reasons why he cannot take action to address public concerns. In this case, Attorney General Zoeller did not fulfill his responsibility to ensure that county prosecutors followed the law. Superintendent Bennett should not have to make excuses for Attorney General Zoeller, once again, not doing his job.


Diana Vice said...

Good for you for forcing this to the forefront! I was amazed that you were criticized by the public officials who were responsible for enforcing these laws when they should have been apologizing to the public for allowing this fiasco to happen in the first place. I thought the legislators who offered criticisms were the biggest hypocrites since the vagueness of the law caused most of the problems.

I have a real problem with forfeiture laws, but that's another issue.

You were absolutely right about this, Paul.

They really dislike people who know too much, don't they?

Keep up the good work.

Rob A said...

I'm glad to see that the pot has been stirred sufficiently to force some action. Kudos to you, Paul, for bringing it to our attention.

I never understood why control of the seized money was allowed to remain in the counties. If assets flowed to a state agency or trust, the prosecutors would have to apply, with justification, for a share of the funds.