Did Superintendent Tony Bennett Throw Schools Under the Bus?; Bennett Gives Away 85% of Funds in Behind Closed Doors Deal Cut With AG Greg Zoeller

The answer is almost certainly "yes."

Superintendent of Public Instruction
Tony Bennett

While calling around to school district attorneys this week, I learned quite a bit about what was happening behind the scenes regarding civil forfeiture.  Apparently a number of school districts and education associations were interested in the issue raised by our lawsuit challenging the fact that county prosecutors and law enforcement types all over the state were simply pocketing all civil forfeiture proceeds instead of only the "costs" of the law enforcement. The amount above costs is required to go to the common school fund.  In the one county which was complying with the law, Wayne County, 26% went to cover law enforcement costs, while 74% went to the Common School Fund.

According to several sources Superintendent of Public Instruction Tony Bennnett told school districts to not help us in the litigation.  Several education groups and school district leaders apparently had presentations ready to present to the legislature with respect to the bill introduced to reform how civil forfeiture proceeds were to be divided, but were told by Bennett not to testify, that he would cut a deal with Attorney General Greg Zoeller regarding the civil forfeiture money.  As a result, the only people the legislative committees heard from were law enforcement officials and Bennett's office.

The deal Bennett cut with Zoeller was beyond horrible.  It allows law enforcement officials to pocket 85% of civil forfeiture proceeds while schools would only get 15%.  Even the worst negotiator in the world could have easily cut a 50-50 deal.  85% for law enforcement certainly creates the problem of policing for profit, the very thing that has led to the horror stories that have dominated many of the headlines over the past few years.

By the time the education establishment found out what happened, it was too late.  The 85% bill has passed both chambers.  Now the only hope may be that rare gubernatorial veto.

Fortunately, there is that silly thing called the Constitution.  Indiana's Constitution says that the Common School Fund is made up of "all forfeitures."  The Attorney General, on behalf of his "clients" the county prosecutors, wrote a poorly written and reasoned opinion a couple years ago that said "all" didn't actually mean "all" and the constitutional provision didn't cover civil forfeitures.  (That opinion contradicted an earlier AG opinion.)  Judge Timothy Oakes opined in his opinion dismissing our qui tam that "all" did, in fact mean "all", and that the AG's opinion on the subject was all wet.  We agree, as do a number of attorneys, including legislators.

Today we amended our complaint  to be a straight class action taxpayer challenge to the constitutionality of the civil forfeiture law.  While many school districts have expressed interest, they all so far have feared jumping on board due to possible retaliation by Bennett. We may still add a school district or two as well as an education association.  Given the lack of cooperation from Zoeller and Bennett, and the inane 85% deal Bennett agreed to, we feel we have no choice but to challenge the constitutionality of the law as suggested by Judge Oakes.  If the law is declared unconstitutional, law enforcement gets 0% while the schools get 100% of civil forfeiture.

I began as a huge fan of Superintendent Tony Bennett.  I believe in almost all of his reforms, although not always his manner of pursuing them.  But when it came to a golden opportunity to do something for the schools, he decided to curry favor with prosecutors and law enforcement officials.  Bennett's political ambitions should not have been placed ahead of the welfare of schools and school children.  But in this case it was.