Moran v. State
| Decision Date | 18 April 1985 |
| Docket Number | No. 1-1184A295,1-1184A295 |
| Citation | 477 N.E.2d 100 |
| Parties | Louis F. MORAN, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee. |
| Court | Indiana Appellate Court |
Jack Rogers, Rogers & Gesse, Franklin, for defendant-appellant.
Linley E. Pearson, Atty. Gen. of Ind., Lee Cloyd, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.
This is an interlocutory appeal challenging the trial court's refusal to dismiss an indictment charging official misconduct. We reverse.
Louis Moran, the street commissioner for the City of Franklin, was indicted on May 15, 1984, on four counts of official misconduct. The pertinent portion of the indictment is as follows:
Record at 2-5. Moran moved to dismiss the indictment but his motion was overruled. He now appeals.
Due to our decision we have stated the issues presented as follows:
1. Whether the indictment failed to state facts sufficient to constitute a criminal offense.
2. Whether the indictment stated facts sufficient to inform the defendant of his acts deemed criminal by the state.
Moran first argues that the information in the indictment, even if true, does not constitute crimes under Indiana law. Each count charges Moran with official misconduct which is defined in Indiana Code section 35-44-1-2(1) as follows: "A public servant who (1) knowingly or intentionally performs an act that he is forbidden by law to perform commits official misconduct, a class A misdemeanor." The act allegedly performed by Moran was the improper sale or exchange of three pieces of personal property. Moran is charged with disposing of a Caterpillar crawler-loader in contravention of Indiana Code section 36-1-11-6(b). He is also charged with improperly disposing of a drill press and gas-fired heater in contravention of Ind.Code Sec. 36-1-11-6(c). The final count alleges that, as street commissioner, Moran improperly awarded public works contracts in contravention of Indiana Code section 36-1-12-5. Moran argues that neither Ind.Code Sec. 36-1-11-6 nor Ind.Code Sec. 36-1-12-5 state conduct, the performance of which, is forbidden by law. He contends his alleged conduct constituted a failure to perform which is not official misconduct.
The failure to comply with a statutory duty can be prosecuted under the official misconduct provision. Moran argues such a failure is not criminal citing State v. Pickett (1981), Ind.App., 423 N.E.2d 717. In Pickett, the mayor of Brazil, Indiana, was charged with official misconduct for failing to comply with his statutory duty to enforce ordinances. 1 In fact, according to the indictment, the mayor had ordered suspension of the enforcement of the parking meter ordinance. This court held the mayor's action did not constitute a crime and in discussing the official misconduct statute we said:
Pickett at 721. However, Pickett does not apply to the facts presented in this case.
Our basis for distinguishing Pickett relates to the difference between the mayor's statutory duty to enforce ordinances and Moran's duty as street commissioner. The Brazil mayor's duty was simply to enforce ordinances. Nothing in the statute, or any other law, sets out when, or how often, enforcement must take place. This, as well as the means used to enforce ordinances, are left to the mayor's discretion. On the other hand, Ind.Code Sec. 36-1-11-6 not only imposes a duty on a public servant but details exactly how the duty is to be carried out.
"36-1-11-6. Sale or transfer of personal property--Procedure.--(a) A disposing agent who sells or transfers personal property must comply with this section, except as permitted by section 8[36-1-11-8] of this chapter. A disposing agent may sell personal property that:
(1) Has been left in the custody of an officer or employee of a political subdivision or agency and has remained unclaimed for more than one year; or
(2) Belongs to the political subdivision or agency but is no longer needed or is unfit for the purpose for which it was intended.
(b) If the personal property to be sold is:
(1) One item, with an estimated value of five hundred dollars [$500] or more; or
(2) More than one item, with an estimated total value of one thousand dollars [$1,000] or more;
the disposing agent shall sell the personal property at a public auction, conducted by an auctioneer licensed under IC 25-6.1, after advertising the personal property for sale, in accordance with IC 5-3-1.
(c) If the personal property to be sold is:
(1) One item, with an estimated value less than five hundred dollars [$500]; or
(2) More than one item, with an estimated total value less than one thousand dollars [$1,000];
the disposing agent may sell the property at public or private sale or transfer the property, without advertising. However, if the personal property is worthless, it may be demolished or junked."
Ind.Code Sec. 36-1-12-5 contains language similarly mandatory and specific with regard to awarding public works contracts.
"36-1-12-5. Public work projects costing less than $25,000 (school corporation) or $15,000 (other political subdivisions)--Procedure.--(a) This section applies whenever a public work project is estimated to cost less than:
(1) Twenty-five thousand dollars [$25,000], in the case of a school corporation; or
(2) Fifteen thousand dollars [$15,000], in the case of any other political subdivision.
(b) If a contract is to be awarded, the board may proceed under section 4 [36-1-12-4] of this chapter or under the following provisions:
(1) The board shall invite quotes from at least three persons known to deal in the class of work proposed to be done by mailing them a notice stating that plans and specifications are on file in a...
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