Filed: IN 2/14/2020 3:37 PM THE SUPREME COURT OF THE STATE OF INDIANA IN THE MATTER OF: ) Case No. 19S—DI-156 ) CURTIS T. HILL, JR., ) Attorney No. 13999-20. ) HEARING OFFICER'S REPORT The Honorable Myra C. Selby, Who was duly appointed and qualified Officer in this matter, now as the Hearing submits the following Hearing Officer's Report pursuant to Indiana Admission and Discipline Rule 23, Section 14(g). PROCEDURAL HISTORY 1. This matter commenced 0n March Commission's Disciplinary Complaint. Jr. with the filing of the Disciplinary 19, 2019, The Disciplinary Complaint alleges that Curtis T. Hill, ("Respondent") violated Rules 8.4(b) and 8.4(d) 0f the Rules of Professional Conduct and Rule 22 0f the Rules of Admission and Discipline. 2. Respondent filed 3. The case came on his Answer t0 the Disciplinary for hearing Complaint on May on October 21 through October 10, 2019. 24, 2019. The hearing was conducted in the Indiana Supreme Court courtroom and was open to the public. 4. The Disciplinary Commission was represented at the hearing by Staff Attorneys Seth Pruden and Angie Ordway. 5. Respondent was represented at the hearing Lukemeyer 0f Voyles Vaiana Lukemeyer Baldwin Legal. & Webb by James Voyles and Jennifer and Donald Lundberg 0f Lundberg FINDINGS OF FACT WE An event well known to people 1. legislative process involved in the Indiana General Assembly and the called the Sine Diel party. is The party typically occurs immediately following the end 0f the legislative session and legislators, legislative employees and lobbyists attend. Sine Die 2. related event. (Tr. V01. 1, The 2018 3. not an official legislative function or event; however, is it is a work- 71-72; Tr. V01. 2, 22-23, 43, 64, 79) legislative session ended after midnight on March 15, 2018, and the Sine Die party followed. Over the 4. Sine Die was years, the Sine at AJ's Lounge AJ's a bar 5. is Die party has been held at various locations. In 2018, ("AJ's") in Indianapolis, Indiana. 0n the near south side 0f Indianapolis. The size 0f the bar is 1,100 square feet (including the bar back, restrooms and kitchen) With a capacity 0f 60 persons. Vol. 3, 58-60, 64) Several witnesses gave testimony about the 6. number 0f people 2018, party. Those estimates ranged from just over 60 (Tr. V01. The testimony established 7. were able t0 move about without Indiana. (Tr. V01. 1, 26) Adjournment was crowded March 15, 64) t0 over 100 people. in some areas but that people Mara Candelaria Reardon Mara Candelaria Reardon 8. that the bar 3, at the difficulty 0r limitation. Rep. 1 (Tr. is a Democratic State Representative fiom Munster, Rep. Reardon has been a state representative since 2006. (Tr. Vol. sine die refers t0 the end 0f a legislative session "Without day." United States Senate, senate.g0V/reference/glossary_term/adjournment (last Visited Feb. 13, 2020). -2- 1, 26) 9. On March 15, 2018, after the legislative session adjournment sine die, Rep. Reardon returned to her office and a short while later changed her clothes. Rep. Reardon and her legislative assistant Samantha Lozano drove to the Sine Die party at AJ's, arriving around 1:00 AM. (Tr. Vol. 1, 28-29) Rep. Reardon was wearing a backless dress. 10. Rep. Reardon had met Respondent through a legislative committee, but did not know him well. Rep. Reardon had never socialized with Respondent. 11. Rep. Reardon testified about first seeing Respondent at AJ’s on March 15, 2018: . . . I encountered Mr. Hill in sort of the middle of the room where the open space was and had met him in the past, exchanged some pleasantries, and then he leaned in as if he couldn't hear me and he put his hand on my back and slid it down my back into my dress and grabbed my buttocks. (Tr. Vol. 1, 33) Rep. Reardon further testified that Respondent "start[ed] on my shoulder all the way down, running it all the way down my back." (Tr. Vol. 1, 35) 12. Rep. Reardon described the exact location of Respondent's hand, how he grabbed her butt, where his thumb was and the fact that he "squeezed" her butt. (Tr. Vol. 1, 36) Rep. Reardon was certain it was not an accident. (Tr. Vol. 1, 37) She did not consent to these acts. 13. There is no evidence that Rep. Reardon was intoxicated or was being touched by someone other than Respondent. Rep. Reardon reacted in a way that indicated she had just been assaulted. She said, "What the fuck" and told Respondent to "back off." (Tr. Vol. 1, 39) Rep. Reardon testified the experience was unpleasant and was a violation of her "physical being." (Tr. Vol. 1, 38) She also felt "shocked," anger and some fear. (Tr. Vol. 1, 38) 14. Later, Respondent approached Rep. Reardon again. On that occasion, he commented on her bare back by saying something to the effect of "that skin, that back" as he began touching her again. (Tr. Vol. 1, 40) -3- Rep. Reardon did not 15. Respondent. She learned that later. (Tr. know others that night V01. 44-45) 1, had also been assaulted by Samantha Lozano Samantha Lozano 16. fiom college She graduated event but did not really Lozano at the point, a legislative assistant for Rep. Reardon. in 2016. know him (Tr. V01. 1, 118) (Tr. V01. (Tr. Vol. 1, 118) Lozano had met Respondent at a previous 123) and Respondent certainly did not recall 1, time of the Sine Die event. at AJ's Lozano arrived 17. some is Lozano was close AM. With Rep. Reardon around 1:00 t0 the bar and it (Tr. V01. 1, 121) was not crowded Where she was. At (Tr. V01. 1, 124) Lozano saw Rep. Reardon and Respondent together and 18. down Attorney General's hand go described the this. movement as "slow." (Tr. Vol.1, 124) She was standing behind Rep. Reardon. hand appeared intentional. Lozano uncomfortable. looked away. was Representative Reardon's back." (Tr. V01. 1, 124) (Tr. V01. 1, 125) (Tr. V01. 1, 125). (Tr. V01. 1, 124) At some point She told him she did and, (Tr. V01. in a good 1, "I saw 124) the She position to observe The movement 0f Respondent's The hand rubbing down Rep. Reardon's back made She observed the hand go "pretty 10w" before she Lozano observed Rep. Reardon appeared uncomfortable and "pretty sure she looked at people to see if they 19. Lozano was testified: in the evening, in fact, told had noticed that . . . ." Respondent asked Lozano him that she (Tr. V01. 1, 125) if she knew who he was. had gone to school With Respondent's daughter. 20. Later in the evening, Lozano was close t0 the bar to get a drink. waiting for her drink, Respondent approached. Lozano said that "it was While she was really hot in here." (Tr. Vol. 1, 131) Respondent replied, "Yes, you are really hot." (Tr. Vol. 1, 131) Lozano was uncomfortable with the comment made by Respondent. (Tr. Vol. 1, 131) Subsequently, Respondent "put his hand around my waist and drew me close to him." (Tr. Vol. 1, 131) When asked on direct examination what she meant, Lozano said, "[h]e pulled me close to him." (Tr. Vol. 1, 131) She was pulled so close that their waists or hips touched. Respondent's arm was around her waist. (Tr. Vol. 1, 132) Respondent had reached around Lozano's back, "grabbed [her] waist, and pulled [her] close to him." (Tr. Vol. 1, 132) 21. Lozano did not say anything. She "looked around the room and looked next to me and that's when I saw a friend and asked her – well, gave her a look so she could get me out" (Tr. Vol. 1, 132) and away from the situation. 22. Lozano felt somewhat trapped, being held by Respondent and against a chair that was next to her. (Tr. Vol. 1, 133) Lozano's friend apparently noticed and managed to get between Respondent and Lozano. (Tr. Vol. 1, 133) 23. Lozano's fear at the moment was that she "didn't want people to think that I was doing something to allow that kind of behavior." (Tr. Vol. 1, 133) Lozano was certain the Respondent's actions were not intended to guide her to the bar because she was already at the bar. 24. On direct examination, Lozano was not mistaken and did not misperceive the events. Q. Is it possible that it didn't happen the way you remember? A. No. Q. Is it possible that you misunderstood what he was doing? A. No. Q. Did you consent to being grabbed around the waist? A. No. -5- (Tr. V01. 1, 25. at the Q. Did you consent A. No. t0 being pulled into his body? 133-34) Lozano did not tell anyone what happened t0 her, although Respondent's behavior Sine Die event was the talk 0f the office the next day. (Tr. V01. keep the humiliating experience t0 herself and put it during a conversation With Rep. Reardon a month later, behind her. 1, 135) Lozano wanted t0 (Tr. V01. 1, 135). However, along with Representative Harris, the Respondent's conduct came up and she told Reps. Reardon and Harris that she had also been touched and that a rude comment had been made. by Rep. Reardon decision Democratic caucus. leaders. (Tr. V01. 1, 136) to talk t0 Representative (Tr. Vol. 1, 137) That conversation led t0 a Brown, a senior representative Eventually, the information was given in the to the legislative (Tr. V01. 1, 137) 26. Lozano was Representatives Jill (Tr. V01. 1, 138) later interviewed by chief counsel for the Indiana House 0f Carnell and Clerk 0f the Indiana Lozano wanted the matter simply wanted t0 make sure someone again. (Tr. Vol. 1, t0 House 0f Representatives Caroline remain confidential. knew what happened and (Tr. V01. 1, 138) she didn't want it t0 Spotts. Lozano happen 139) Niki DaSilva 27. Niki DaSilva was the legislative assistant for Republican Senator Ryan Mishler. She went to the Sine Die event with him. (Tr. V01. 1, 179) DaSilva had some level 0f contact With Respondent 2018 and is in her job because 0f Sen. Mishler‘s dealing With the budget. 27 years 01d. (Tr. V01. 1, 177) DaSilva graduated from college in (Tr. V01. 1, 181) 28. At the Sine Die party, DaSilva first encountered Respondent at the bar. (Tr. Vol. 1, 183) She was standing at the bar with other staff members. Respondent approached and said to the women, "Don't you know how to get a drink?" and "You have to show your knee, you have to show a little skin." (Tr. Vol. 1, 183) Respondent does not deny making some type of comment along the lines described. DaSilva was uncomfortable. (Tr. Vol. 1, 184) 29. DaSilva was the friend that Lozano had made eye contact with when Respondent had grabbled Lozano. (Tr. Vol. 1, 186) DaSilva could tell Lozano was uncomfortable and she did not want to leave Lozano alone with Respondent. (Tr. Vol. 1, 186) That is when she moved in between them. (Tr. Vol. 1, 186) 30. At some point in the evening, Respondent touched DaSilva. "He put his hand on my back." (Tr. Vol. 1, 187) DaSilva "froze." (Tr. Vol. 1, 188) DaSilva testified that Respondent moved his hand down her back. She tried to move it away with her free hand. (Tr. Vol. 1, 188) When she tried "[n]udging" his hand away, he did not move it. (Tr. Vol. 1, 188-89) DaSilva testified, "He grabbed me." (Tr. Vol. 1, 189) She said Respondent grabbed her "on [her] wrist and hand." (Tr. Vol. 1, 189) She testified, "He pulled my hand and my arm down with his and touched my butt." (Tr. Vol. 1, 189) DaSilva testified that "[h]e finally let go and stared at me." (Tr. Vol. 1, 190) DaSilva was in "shock" and saw that Respondent was "smirking." (Tr. Vol. 1, 191) She found the quickest way to move away from the situation. (Tr. Vol. 1, 192) DaSilva was both angry and embarrassed. (Tr. Vol. 1, 191) She did not consent to being touched. (Tr. Vol. 1, 192) 31. On direct examination, DaSilva was not mistaken and did not misperceive the events. Q. Okay. Did you consent to the Attorney General grabbing your hand? -7- P> N0. .0 Did you consent him moving t0 hand and your hand t0 your his butt? N0. Did you consent @Pp? to him touching your butt? N0. Is it possible that trying to guide when he you A. N0. Q. How do you know? A. Iwas put his hand on your lower back he was to the bar? already standing at the bar. (Tr. V01. 1, 192) 32. Unlike Lozano, DaSilva told others about what had happened t0 her. Zack Sand, Oliver Russell two worked text Office of the Indiana Attorney General. for the messages t0 Russell. In the messages, she answering! Also, you[r] boss grabbed my butt Gabrielle 33. 237) McCaffrey and Natalie Barie, Rep. Eberhart, Laura Gabrielle Brock graduated She received a master's degree . . ." . for the Brock was at other side (Tr. V01. 1, fiom college Democrats. DaSilva sent (Tr. V01. 1, 198) in 2016. 1, 1, 1, She 237) is 25 years She is old. (Tr. V01. 1, the communications 237) At the time 0f the Sine Die event, (Tr. V01. 1, 237) She went to the Sine Die 240) AJ's at a bar stool against the bar. (Tr. V01. 1, her, blocking her in as the bar 243-44), and asked, 193) (EX. 6) in 2019. (Tr. V01. Respondent pulled up a bar stool beside 1, McLemore Brock party with her intern, Allison Lukas. (Tr. V01. 34. Russell. (Tr. V01. "Are you out?" and "Thanks for not said: director for the Democratic Senate Caucus. (Tr. V01. Brock was the press secretary She told "D0 you know who I am?" 243) She testified that was next to her (Tr. V01. 1, on the 243) Brock testified that Respondent was less than an inch away from her and his hand was "touching my back." (Tr. Vol. 1, 244) 35. When asked to describe how Respondent touched her, she testified, "It was a sexual back rub." (Tr. Vol. 1, 244) She stated it was "slow." (Tr. Vol. 1, 244) She testified that Respondent moved his hand "[f]rom the top of my back down to the bottom of my back." (Tr. Vol. 1, 245) She said it lasted "a few minutes." (Tr. Vol. 1, 245) Brock stated that it was not possible that she misperceived the touch and that he was not just being friendly. (Tr. Vol. 1, 245) 36. Brock was afraid and worried that others might see him rubbing her and believe she had invited it. (Tr. Vol. 1, 246) 37. Brock needed to escape. She mouthed "help me" to Lukas, who was sitting across from her. (Tr. Vol. 1, 247) Lukas then came over and got her away with the excuse of going to the bathroom. (Tr. Vol. 1, 247) 38. On direct examination, Brock was clear and unmistaken in what happened: Q. Is it possible – let me ask you, was it an appropriate way to touch a stranger? A. No. Q. Is it possible that you misperceived and he was just being friendly? A. Absolutely not. Q. Why do you say that? A. I have never had someone in a friendly manner touch me that way before. (Tr. Vol. 1, 245-46) 39. Brock testified that she was afraid others would think she invited Respondent over or she was enjoying the attention, which she wasn’t. (Tr. Vol. 1, 246) 40. When Brock got to the bathroom with Lukas, Brock broke down and cried. She was so upset she just wanted to get out of the bar and outside. (Tr. Vol. 1, 247) She tried to -9- collect herself but was still crying when she got outside. (Tr. V01. 1, 247) Another colleague, Brent Stinson, saw Brock and Brock told him that "Curtis Hill had just rubbed Vol. 1, my back." (Tr. 248) Then she got her ride and lefi. The next day, Brock went 41. Those co-workers included Stinson, Lukas, Shannon Greer, and Paul Smith. She told behavior. them what she experienced. (Tr. V01. 1, report the matter t0 someone. think anything 42. superiors work. Co-workers were talking about Respondent's t0 Brock was encouraged by some co-workers Brock did not make any report would come 0f it. Brock 249) (Tr. V01. 1, time because she did not 249) confused and violated. Eventually, she changed her mind about telling felt what happened. (Tr. V01. 1, 249) President 0f the Senate and pro tem, and his She reported the matter staff. The Hearing Officer finds that there t0 Senator David Long, She was interviewed by LeNee Carroll, the Chief of Staff of the Indiana Senate Democratic Caucus. 43. at that t0 (Tr. V01. 1, 249) was n0 evidence that the complainants Reardon, DaSilva, Lozano and Brock — coordinated their stories 0r their testimony — at the hearing. Respondent 44. Curtis Hill is an attorney, in good standing, admitted t0 practice law in the State OfIndiana 0n June 10, 1988. 45. Respondent has spent almost the entirety 0f his legal career as a prosecutor. was elected Elkhart was elected t0 the position 0f Attorney General in the County prosecutor beginning of2017. (Tr. V01. 46. At all 3, 98; in 2002, serving in the role Code from 2003 through 2016. He 2016 general election, taking office at the V01. 4, 6) relevant times herein, Respondent State of Indiana (Indiana He 4-6-1-2, et seq.), having -10- was the elected Attorney General 0f the assumed office 0n January 9, 2017. 47. Respondent worked into the evening hours on March 14, 2018. At approximately 8:30 PM, Respondent left his office in the State Government Center and walked down Washington Street to get something to eat. He went into The Capital Grille, a restaurant on Washington Street adjacent to the Conrad Hotel. Upon entering The Capital Grille, he saw a group of individuals in the bar area that included an acquaintance, Tony Samuel. (Tr. Vol. 4, 12) Samuel is a lobbyist. He was at The Capital Grille with a group of other people who were lobbyists or their clients. The group included Pete Nemeth and Joni Hart, both of whom lobbied for the cable media industry, and others. Samuel invited Respondent to join the group, which he did. Samuel's group had ordered appetizers and drinks. Respondent was invited to order a drink and partake in the appetizers. Respondent ordered a glass of wine. (Tr. Vol. 4, 16-17) 48. At some point, Hart and others in the group left The Capital Grille to go to the Statehouse. The General Assembly was still in session. Hart paid the bill for the drinks and appetizers. (Tr. Vol. 4, 16) Respondent, Samuel and Nemeth remained behind at The Capital Grille and continued visiting. 49. At a little before 10:00 PM, Respondent, Samuel and Nemeth left The Capital Grille and walked to the 1933 Lounge, which is a bar above St. Elmo Steak House on South Illinois Street in Indianapolis, arriving at about 10:00. (Tr. Vol. 4, 17-18) Samuel invited Respondent to accompany him and Nemeth. Sometime during the course of the evening, Samuel told Respondent that he and Nemeth intended to go to the Sine Die party later in the evening and invited Respondent to accompany them. (Tr. Vol. 4, 18-19) 50. On the walk from The Capital Grille to the 1933 Lounge, the group met three other individuals. Samuel invited those three individuals to join them at the 1933 Lounge. (Tr. - 11 - Vol. 4, 17) The group of six ordered drinks at the 1933 Lounge. Respondent ordered a glass of wine. (Tr. Vol. 4, 18, 19) 51. At approximately midnight, the six people in Samuel's group at the 1933 Lounge ordered an Uber to take them to AJ's. (Tr. Vol. 4, 20-21) 52. Respondent had not been to AJ's before. (Tr. Vol. 4, 22) Respondent entered the front door of AJ's with Samuel around 12:15 to 12:30 AM on March 15. 53. Respondent agreed to go to the Sine Die party, in part to thank Senator Greg Taylor for his efforts in opposing a bill that the Attorney General's office also opposed. Respondent also planned to engage with other legislators. (Tr. Vol. 4, 25) 54. There was an open bar at AJ's Sine Die party and many of those in attendance were consuming alcoholic beverages. (Tr. Vol. 1, 14, 75-76, 162, 218, 263; Tr. Vol. 3, 57-58, 137, 157, 175; Tr. Vol. 4, 24) Respondent believes he had two more drinks at AJ's – a vodka martini and a shot of Fireball whiskey. 55. Respondent visited with many people, both men and women, at AJ's during the Sine Die party. (Tr. Vol. 2, 25) 56. Respondent greeted several people at the party by asking "do you know who I am?" Representative Ryan Hatfield testified: He [Curtis Hill] would have come up behind them and approached me and was looking at me and said something to the effect of Mr. Cool, how do you get to hang out with these pretty ladies or beautiful ladies, and asked at some point if I knew or we knew who he was and that he was Curtis Hill and we shook hands and I introduced myself and then he did so with the folks. (Tr. Vol. 3, 87) 57. LeNee Carroll had a very specific recollection about when Respondent approached her: - 12 - A. He approached me. Q. In what manner? A. It was shortly after I got there. He just walked up to me and asked me did I know who he was. He said, "Do you know who I am?" Q. And you responded? A. I said, "I do, Attorney General Hill[.]" (Tr. Vol. 2, 140) 58. At some time during the Sine Die party, Respondent was in the vicinity of the bar amidst a group of other partygoers, including DaSilva. Sen. Taylor was tending bar at that time. Commenting to the group standing there, including DaSilva, Respondent made the statement, "Gee, if you want to get this guy's attention you may have to show some leg." (Tr. Vol. 4, 32) DaSilva, who recalled the statement as referring to showing "your knee" or "a little skin," (Tr. Vol. 1, 183) took offense at this comment, but she didn't say anything at the time. (Tr. Vol. 1, 184-85). 59. Respondent "worked the room" after he arrived at the Sine Die party. He found Sen. Taylor and thanked him for his work. He also spoke to Sen. Mishler and gained his assurance that they would work together moving forward. He also talked to Sen. Randolph. Additionally, Respondent engaged in what he described as "quick-hits" to say hello and move on, "much like when I work a political event and my purpose is to meet as many people as possible." (Tr. Vol. 4, 31) 60. Respondent acknowledged that, at some point during the evening, he did approach a group of people at the bar and said, "Gee, if you want to get this guy's attention you may have to show some leg." (Tr. Vol. 4, 32) He explained that he was trying to make a joke in reference to the movie "It Happened One Night." (Tr. Vol. 4, 32-33). Respondent did not - 13 - acknowledge any possible offense to anyone hearing the comment, including DaSilva or Sen. Taylor. 61. Respondent testified that he consumed alcohol on the evening in question – a couple glasses of wine prior to coming to the party and a vodka martini and a Fireball shot at the Sine Die party. (Tr. Vol 2, 34) Respondent described himself as a rare drinker. He noted that when he was the Elkhart County Prosecutor he had a hard rule that he would not drink and drive because he never wanted to put himself or a police officer in that position. (Tr. Vol. 2, 35) 62. Respondent recalled meeting Rep. Reardon at the Sine Die party. Respondent acknowledged that he had touched Rep. Reardon on her shoulder and back and that his hand moved down her back to her middle/lower back. At some point as his hand moved, he noticed that she had on a backless dress. Respondent denied that he grabbed Rep. Reardon's ass or handful of ass and stated, "No, my hand was on her skin above her buttocks." (Tr. Vol. 2, 42) 63. Respondent did not hear any rebuke from Rep. Reardon when she turned away from him. He did not hear her say "back off" or words to that effect. Respondent did not comment to Rep. Reardon on her dress. Respondent denied having a second encounter that evening with Rep. Reardon. 64. Respondent met Lozano at a charity event in April 2017. Respondent met her along with a group of women and Lozano indicated that she was in college with Respondent's daughter. (Tr. Vol. 4, 51-52) They posed for a photo. (Ex. 5) 65. Respondent recalled seeing Lozano at the Sine Die party. He was at the bar and he would step away to his left in order to guide people in. In point of time, Respondent said that he "was at the bar and it was following the 'show leg' issue[.]" (Tr. Vol 4, 53) He did not recall any conversation with Lozano but he did guide her up front to the bar. - 14 - 66. Respondent also acknowledged that he testified during deposition that he did not have any recollection of Lozano at the Sine Die party. Following his deposition, more facts from Lozano's deposition came forward to enhance his recollection. (Tr. Vol. 4, 143) 67. Respondent recalled meeting DaSilva at the Sine Die party. He had met her before in Sen. Mishler's office. Respondent initially encountered her in a group including Sen. Mishler. Later, he encountered her again at the bar. Respondent testified that DaSilva was "one of the ladies who I ushered next to me in the bar area when I was helping get them access to the bar area." (Tr. Vol. 4, 55) He did not remember her being in the area when he made the "show some leg" comment. Respondent denies putting a hand on DaSilva's back and grabbing her hand and directing it down her back toward her butt. (Tr. Vol. 4, 55) 68. Respondent had not met Brock before March 15, 2018. (Tr. Vol. 4, 56) He did not have a specific recollection of her at the party, but generally denied touching anyone in a sensual or intimate manner. (Tr. Vol. 4, 58) He did speculate that he could have put his hand on Brock's back while standing near the bar area. (Tr. Vol. 4, 57) On cross examination with respect to Brock, Respondent acknowledged that he might have touched her shoulder with his hand and it might have moved. 69. Respondent acknowledged being questioned by his chief of staff, Joan Blackwell, about the Sine Die party and his conduct while there. Few details were given and he believed that it was the result of the rumor mill. During that conversation he acknowledged the "show some leg" or "show some knee" comment and added that he did not touch anyone inappropriately. (Tr. Vol. 4, 69-72) 70. The next time Respondent heard about the Sine Die party was on June 29, 2018, when he received a phone call from Senator Long and Speaker Bosma. - 15 - Respondent was traveling and arranged to take the Negangard, Chief Deputy Attorney General, was also on the legislative leadership behavior, including he was that They explained the allegations. I was anything he wanted for the t0 that they come 4, 76) convey During the July 2, t0 and made had hired a law firm t0 legislative events They agreed t0 they had talked t0 meet 0n July to the complainants make anybody if 2, and he said was that "[t]0 the I want Bosma and Speaker conduct an investigation. (Tr. V01. Star 2018. They feel uncomfortable, t0 for and other The Indianapolis indicated that Respondent also apologized need 0f them being required 71. to Bosma did anything to offend anybody or to apologize for that." (Tr. V01. 4, 77) Long him not Speaker call, about to report 0n the Taft Report? (Tr. V01. extent that explained that to drink than usual that night Respondent again asked for names and also asked Samuel. At some point during the if there Bosma inappropriately Respondent acknowledged having more Who was making "don'ts." (Tr. V01. 4, 75) touched people intoxicated, advice and pursuant to that they instructed asked Speaker call. had conducted an investigation based on complaints 0f Respondent's inappropriate comments. and asked Aaron during a layover in Dallas. (Tr. V01. 4, 73) call t0 Sen. 4, 80) 2018, meeting with the four legislative leaders, Respondent learned that the Taft Report had been leaked. Respondent asked t0 see a copy of the allegations and the Taft Report. Speaker Bosma read the allegations Respondent a copy of the Taft Report. At the appropriate 72. Star. 2 (Tr. is Indiana General Assembly. Tafi Report as published in In his View, the report contained the report prepared by did not give 0f investigation 0f the Attorney General. Later that day, Respondent saw the The Tafi Report He a file. that point, the conversation turned t0 a discussion body 0r agency t0 conduct an V01. 4, 51-53) fiom the Taft law A single point of confluence firm many The Indianapolis inaccuracies and notes. at the request of the leaders of the in this case centers on the Taft Report. Neither the Respondent nor Brock, Reardon, Lozano or DaSilva were satisfied with the accuracy of the Taft Report. -16- Respondent's reaction was that he did not believe he was going t0 get a heard so he was going t0 fight. (Tr. V01. 73. opportunity t0 be 93-94) Respondent acknowledged t0 the Legislative Council leaders during the July "if you're suggesting that I 2018, meeting that and they 4, fair didn't want you're suggesting I t0 would have touched someone 0n be touched 0n the buttocks, would have done that's called battery and 2, their buttocks that's a crime. If that with a sexual motivation, that's sexual battery, again a crime." (Tr. V01. 4, 133; EX. 62, p. 20) 74. Respondent, through his staff, requested that the Tafi Report be contended that Rep. Reardon's allegations were not accurately represented. 75. The Hearing Officer finds that there was n0 evidence clarified as he (Tr. V01. 4, 166) that the complainants— Reardon, DaSilva, Lozano, and Brock—coordinated their stories 0r their testimony at the hearing. Corroborating Testimonv Several witnesses testified in corroboration 0f the events at the Sine Die party. 76. 14). Adam Jones was Jones. at the Jones a legislative director for Senate Democrats. (Tr. V01. 2, is Sine Die event and witnessed Respondent talking With Rep. Reardon and then he saw Respondent's hand "g0 onto her back, onto the skin 0f her back" and top 0f her butt." (Tr. V01. 2, 18) Jones was "certain" he saw Respondent's hand below portion of her butt. (Tr. V01. 2, 20) Jones also testified that Rep. Reardon reacted and moved her arm down and "they had words," although he couldn't hear them. Jones perceived Rep. Reardon as trying t0 77. Brett Stinson. (Tr. V01. 2, 32) On Democratic Caucus. "down move Respondent's hand away. t0 the the back by backing up (Tr. V01. 2, 20) (Tr. V01. 2, 20) Stinson currently works for the Marion County election board. the night 0f the Sine Die event, he (Tr. V01. 2, 33) was press secretary for the Senate Stinson had been the intern director -17- When Brock was an intern so he event, he knew When her. (Tr. V01. 2, 36-37) was outside waiting 0n his car to pick him up. later t0 leave the Sine He testified Die as follows: 0n? So When I was outside waiting 0n my car t0 come pick me me home, she [Brock] busted out of the bar, it seemed like there was a commotion at the door noticeable enough that I turned and looked to see what was happening. She [Brock] came right outside and she sat down 0n the window ledge next t0 me in She clarified that while she was in tears and described to me the bar the Attorney General had touched her back While she was seated and that it made her extremely uncomfortable and she came outside in tears because she was afraid 0f what people in that room would have thought was happening at the time. A. I did. up t0 take . . . 37-40) Donna Smith. Smith 78. and has worked there since 1992. standing with a group Respondent was preparing (Tr. V01. 2, 37) Did you notice something unusual Q. (Tr. V01. 2, Stinson at the at the is a legislative assistant for the Republican Senate Caucus (Tr. V01. 2, 68) She attended the Sine Die event. bar at the Sine Die party, Smith noticed that While when women walked by bar "Attorney General Hill, he would use his body t0 rub up against them as they passed by him. And that's the reason I did not walk by. I stayed on this side 0f him." (Tr. V01. 2, 73-74) Smith also observed Respondent rubbing Rep. Reardon's back: (Tr. Vol. 2, Q. What A. He was just did you see about that? slowly rubbing her back. Her back was bare. 75—76) 79. Laura McCaffrev. McCaffiey (Tr. Vol. 2, 92) a lobbyist for the Indiana Hospital Association. She attended the Sine Die event with her boyfriend, Trevor Vance. She was the bar With Trevor, Laura Brown, Laura Johnson and Rep. Ryan Hatfield. some point Respondent approached, put shoulder and is made a comment t0 his (Tr. V01. 2, 95) at At arms around McCaffiey‘s shoulder and Johnson's Rep. Hatfield that he was so lucky t0 have three beautiful -18- blond-haired blue-eyed Lauras. (Tr. V01. 2, 97-98) McCaffrey was uncomfortable and looked t0 Rep. Hatfield t0 rescue her. (Tr. V01. In addition to her 80. 2, own 98) uncomfortable experience, sometime during the evening, DaSilva told McCaffiey about her experience. told her that (Tr. V01. 2, 100) McCaffrey testified Respondent had "touched her butt" and she seemed violated by that that. DaSilva (Tr. V01 2, 101) Allison Lukas. Lukas 81. 2, was an She attended the Sine Die event. 106) encounter with Brock. (Tr. Vol. Q. A. (Tr. V01. 2, 110) not obstructed. She saw his 2, intern for the Senate Democratic Caucus. (Tr. V01. Lukas testified 110) Her testimony Respondent in an as follows: Okay. And so What did you observe between Attorney General Hill and Gabby? observed him being very close to her in a manner that expect and rubbing her back. I Lukas testified she could see them Respondent was standing close t0 Brock Brock mouthed "help me" 0r over and took Brock t0 the bathroom t0 get her away I clearly. (Tr. V01. 2, 111) in a way that wouldn't Her Vision was made Lukas feel weird. (Tr. V01. 2, 112) Brock made eye "help." (Tr. V01. 2, 113) Lukas then came arm move, and he was rubbing Brook's back. contact with Lukas and was is that she observed fiom Respondent. (Tr. V01. 2, 113) Brock visibly upset and crying. (Tr. V01. 2, 114) Legislators' Action Steps 82. Approximately one month had lunch With Lozano and Rep. Harris. women — after the Sine Die party, in April 2018, Rep. Reardon During lunch Rep. Reardon learned about the other DaSilva and Brock. Rep. Reardon went t0 her leadership, Rep. Goodin, and told him about what happened t0 her and about the legislative -19- staffers. Meanwhile, DaSilva reported the incidents involving her to Sen. Mishler (Tr. Vol. 1, 199) and also to Rep. Eberhart, as well as coworkers Sand, Barie, Oliver and McCaffrey. (Tr. Vol 1, 224) Brock reported the incident to Sen. Long, Sen. Lanane, Skip Brown and LeNee Carroll and they, in turn, interviewed her. (Tr. Vol. 1, 251) 83. Brian Bosma is the Speaker of the House of Representatives for the State of Indiana and has held the position for twelve years out of the last sixteen. He is also a principal in the law firm of Kroger, Gardis & Regas. (Tr. Vol. 2, 145-46) Respondent is a friend of his. (Tr. Vol. 2, 157) Speaker Bosma met with Rep. Reardon, accompanied by Rep. Goodin and Rep. Harris on May 14, 2018. Speaker Bosma was accompanied by Rep. Lehman and Chief of Staff Tyler Campbell. Rep. Goodin indicated the need to bring some concerns to the Speaker's attention. Rep. Reardon then shared her description of events of the Sine Die party, including her allegations against Respondent. (Tr. Vol. 2, 149-50) 84. After the meeting, Speaker Bosma spoke with Rep. Lehman and Campbell and learned that three legislative staffers (House and Senate) had experienced unacceptable conduct from Respondent. (Tr. Vol. 2, 150) Speaker Bosma sought out Sen. Long. Speaker Bosma and Sen. Long immediately proceeded to convene the personnel committee of the Legislative Council for an investigation of the allegations. The Council consisted of Rep. Goodin, Speaker Bosma, Sen. Long and Sen. Lanane. (Tr. Vol. 2, 151) The lawyers on staff of the House and Senate conducted interviews of the employees impacted. (Tr. Vol. 2, 153) Except for Rep. Reardon, the other complainants desired confidentiality and did not want to be identified – they did not want Respondent to know their names. (Tr. Vol. 2, 153-54) 85. Rep. Reardon initially did not request confidentiality but she changed her mind and asked the leaders not to use her name as well. The women making the allegations against - 20 - Respondent told the legislative leaders, in response to being questioned, that although they didn't expect any action, they hoped some action would be taken, but they were afraid nothing would happen. Further, they wanted an apology but did not believe that one would be forthcoming. Finally, they did not want to be contacted by Respondent. 86. The leaders directed George Angelone, Exec. Dir. of Legislative Services, to obtain a legal opinion on any possible employment law issues and a review of the investigation and thereafter planned to meet with Respondent on July 2, 2018. (Tr. Vol. 2, 155) 87. The Taft Report was delivered to Skip Brown, Sen. Long and Sen. Lanane on June 18, 2018. (Tr. Vol. 2, 207-08) Speaker Bosma received the Taft Report on June 21, 2018, as he was leaving the country on vacation. (Tr. Vol. 2, 155) Speaker Bosma and Sen. Long were expecting to hear from the outside lawyers as to their legal opinion when they learned The Indianapolis Star had made an inquiry of the communication director indicating that a reporter was writing a story about the incident involving Respondent. Following the news of this leak to the Star, Speaker Bosma and Sen. Long decided to arrange a call with Respondent on June 29, 2018, at 5:00 PM (Tr. Vol. 2, 157-58, 162, 210) Speaker Bosma had determined that they owed Respondent the duty of explaining where they were in the process. Speaker Bosma and Sen. Long arranged a telephone conference with Respondent during which they informed him of the allegations of conduct they considered inappropriate and unacceptable. (Tr. Vol. 2, 158) They asked that he not attend legislative receptions. Speaker Bosma and Sen. Long asked that he not have any contact with the persons involved. Respondent responded with shock and repeated three or four times that he had had a lot to drink that night and that he didn't intentionally touch anyone inappropriately. - 21 - 88. Speaker Bosma's request, Respondent said that Finally, in response t0 troubling and t0 the extent that anyone 89. Taft Report. Brock, On July 2, 2018, Sen. On that same Lozano—and was offended by him, he apologized. Bosma met existence of the with the three legislative staffers—DaSilva, advised them as t0 the course 0f action taken by legislative leadership. short time later, Speaker Bosma A similarly informed Rep. Reardon, adding that the legislature did not have jurisdiction t0 modify or mandate Respondent's behavior. (Tr. V01. 90. was (Tr. V01. 2, 160) Long informed Brock and DaSilva of the day, Speaker this The Hearing Officer concludes that there is 2, 52, 165, n0 evidence that 188) any 0f the complainants had anything to do with the decisions 0f the legislative leaders or the Legislative Council. They were treated at all times as complainants. CONCLUSIONS OF LAW 1. With regard more appropriately t0 findings and conclusions, any findings 0f to these Lawyer discipline Freeman, 835 N.E.2d 494, 496 and sanction 3. appear be a conclusion of law, and any conclusion 0f law that appears more appropriately t0 be a finding 0f fact, shall be 2. fact that t0 be so. the sole province 0f the Indiana is (Ind. rests With” the Indiana deemed Supreme Court. See In re 2005) (noting that “the determination regarding misconduct Supreme Court). The Sine Die party was a private, work-related event. official publication 0f the event or a business agenda, there was Although there was n0 consistent testimony at the hearing that the important business of developing and nurturing goodwill by and between legislators, legislative staff the Sine Die party until he intending t0 conduct and lobbyists occurs was at the party. invited that evening some business with key by a Respondent had no plan t0 attend lobbyist. Respondent went legislators about a bill that -22- t0 the party concerned the Office of Attorney General. (Tr. Vol. 4, 25, 30) The Hearing Officer concludes that Respondent was at all times relevant herein acting as the Attorney General of the State of Indiana and the Rules of Professional Conduct apply. 4. The Disciplinary Commission charged that Respondent violated Indiana Rule of Professional Conduct 8.4(b), which states as follows: It is professional misconduct for a lawyer to: (b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects. 5. The criminal acts charged by the Commission are sexual battery as to DaSilva and battery as relates to Reardon, Lozano, DaSilva and Brock. 6. Indiana Code 35-42-2-1(a), effective March 2018, in relevant part provides: A person who knowingly or intentionally touches another person in a rude, insolent or angry manner, commits battery, a Class B Misdemeanor. Indiana Code 35-42-4-8(a), effective March 2018, in relevant part provides: A person who, with intent to arouse or satisfy a person's own sexual desires or the sexual desires of another person, touches another person when that person is: (1) Compelled to submit to the touching by force or imminent threat of force; . . . 7. Respondent was not charged with or convicted of any crime. 8. There is no requirement in Rule 8.4(b) that a criminal charge or conviction occur before the allegations form the basis of a disciplinary complaint. 9. The Indiana Supreme Court has found Rule 8.4(b) violations in cases where criminal charges were not brought. See Matter of McClure, 652 N.E.2d 863 (Ind. 1995); see also Matter of Moore, 665 N.E.2d 40 (Ind. 1996). - 23 - 10. The Hearing Officer finds that the Disciplinary Commission failed to prove by clear and convincing evidence that Respondent committed sexual battery. 11. The Disciplinary Commission charged a violation of Rule 8.4(b) on the basis of battery with respect to all four complainants. 12. Evidence of touching, however slight, is sufficient to establish battery. Mishler v. State, 660 N.E.2d 343, 348 (Ind. Ct. App. 1996) (noting that a conviction for battery will be affirmed so long as there is evidence of touching, however slight). See also Leturgez v. State, No. 79A02-1112-CR-1105, 2012 WL 2951861 (Ind. Ct. App. July 20, 2012) (affirming defendant's Class B misdemeanor battery conviction after he grabbed a woman from behind and placed his hands on her waist and upper legs, which were covered by her sweater); Chamem v. State, No. 49A05-1004-CR-214, 2011 WL 292025 (Ind. Ct. App. Jan. 31, 2011) (affirming defendant's Class B misdemeanor battery conviction after she put her hands on a gas station manager, raised her arm up toward the manager's chest, and put her wrist area toward the manager's chest); Zagorac v. State, No. 64A03-1011-CR-589, 2011 WL 4483998 (Ind. Ct. App. Sept. 28, 2011) (affirming defendant's Class B misdemeanor battery conviction after defendant rubbed a child's back and patted the child's head, and the evidence showed that the child did not like the touching and that the touching made him uncomfortable). 13. Battery requires general intent and, as such, the "knowing" is whether or not the actor engaged in the act. What might have been Respondent's general mood at the party – happy, gregarious – is not relevant to the intent element. The statutory element of knowing or intentional conduct for the offense of battery may be presumed from the voluntary commission of the act. Mishler, 660 N.E.2d at 348. Respondent's conduct was voluntary. Therefore, the statutory element of knowing or intentional was met. - 24 - 14. Respondent committed the criminal act of battery, a Class B misdemeanor, as set forth in Indiana Code 35-42-2-1(c) as follows: a. By his conduct touching Rep. Reardon's bare back, rubbing his hand down her back down to or just above her buttocks without her consent. He did not accidentally or inadvertently rub Rep. Reardon's back down to her mid to low back. b. By his conduct rubbing Brock's back without her consent. He did not accidentally or inadvertently rub Brock's back. c. By his conduct in putting his arm around Lozano's waist and pulling her toward him without her consent. He did not inadvertently touch Lozano and pull her to him. d. By touching DaSilva's back, moving his hand down her back and moving DaSilva's hand toward her buttocks and touching her buttocks without her consent. He did not accidentally or inadvertently touch DaSilva's back and move his hand down her back toward her buttocks. 15. Respondent did not deny touching Rep. Reardon, DaSilva or Lozano. With respect to Brock, on direct examination at first he did not recall meeting Brock at the Sine Die party but, upon further questioning, he did have a recollection: Q. Well, let me ask you about the event you just alluded to. She described that you put your hand on her back while standing near her at the bar area of AJ's, could that have happened? A. That could've happened. . . . (Tr. Vol. 4, 57) - 25 - 16. The Disciplinary Commission charged Respondent with a violation of Indiana Rules of Professional Conduct 8.4(d): Rule 8.4(d) provides: It is professional misconduct for a lawyer to engage in conduct that is prejudicial to the administration of justice. To the extent Rule 8.4(d) requires a nexus between the conduct and the practice of law, the nexus requirement that the conduct have some connection to the practice of law is satisfied in this case because Respondent is the Attorney General of Indiana. As such, he is uniquely and singularly acting in the role of the State's highest lawyer at all times and certainly was at all times relevant. Respondent emphasized this in the manner in which he introduced himself to several attendees at Sine Die. Lawyers who are charged with enforcement of the law must conduct themselves at all times in a manner that promotes public esteem for these responsibilities. In re Oliver, 493 N.E.2d 1237 (Ind. 1986). Oliver recognizes that lawyers have a special duty because they are law enforcers to conduct themselves in a way that bolsters public esteem. In Oliver, the lawyer was a prosecutor who had committed an act of operating while intoxicated. The Court said: We conclude, however, that the prejudice to the administration of justice occurred before Oliver's motion to withdraw was granted. The duty of judges and prosecutors to conform their behavior to the law does not arise solely out of their status as attorneys. As officers charged with the administration of the law, their own behavior has the capacity to bolster or damage public esteem for the system different from that of attorneys otherwise in practice . . . . In re Oliver, 493 N.E.2d 1237, 1241-42 (Ind. 1986). The Supreme Court has affirmed the principle set forth above in numerous cases since Oliver. See Matter of Russell, 928 N.E.2d 198 (Ind. 2010) (finding that deputy prosecutor - 26 - operating with blood alcohol of .15 or more violated Rule 8.4(d)); Matter of Seat, 588 N.E.2d 1262 (Ind. 1992) (finding that prosecutor with single count of operating while intoxicated violated Rule 8.4(d)); Matter of Roche, 540 N.E.2d 36 (Ind. 1989) (finding that deputy prosecutor in possession of marijuana violated 8.4(b) and 8.4(d)). In the attorney discipline case of Junk, the lawyer was a deputy attorney general in Indiana. Matter of Junk, 815 N.E.2d 5050 (Ind. 2004). While so employed the lawyer pleaded guilty to a single incident of operating a vehicle while with a B.A.C. of .08 or more, a Class C misdemeanor. The Court found he violated Rule 8.4(d), "which prohibits lawyers from engaging in conduct which is prejudicial to the administration of justice." Comment 4 to Rule 8.4 provides the following: Lawyers holding public office assume legal responsibilities going beyond those of other citizens. A lawyer's abuse of public office can suggest an inability to fulfill the professional role of lawyers. 17. The Hearing Officer concludes that Respondent engaged in conduct prejudicial to the administration of justice in violation of Indiana Rules of Professional Conduct 8.4(d). 18. The Disciplinary Commission charged Respondent with violating Admission and Discipline Rule 22. The Oath of Attorneys requires lawyers to promise to abstain from offensive personality. Respondent seems to concede that his behavior at the party might have been boorish or he might have offended some people. However, behavior that might in fact offend someone is not necessarily equivalent to abstaining from offensive personality. The Hearing Officer concludes that the Disciplinary Commission failed to meet its burden of proof and the Hearing Officer finds that Respondent did not violate Admission and Discipline Rule 22. 19. The Hearing Officer disagrees with Respondent's contention that the generational differences between himself and the complainants somehow explains their alleged misunderstanding of what they experienced. He relies on the generational divide to explain why - 27 - DaSilva did not "get the joke" 0f the statement "show some Respondent suggests leg. that the events and circumstances 0f this case reflect the shifting social concerns around What is not what this case is appropriate and inappropriate conduct at a work—related party. about. This case is That is about the specific charges brought by the Disciplinary Commission and the facts related t0 the Complaint. There was no evidence presented behavior and practices and the Hearing Officer declines t0 at the hearing 0n general social make any conclusion of law on this Officer and basis. SANCTIONS determining In 1. the sanctions, Hearing considers mitigating aggravating factors. 2. Respondent has n0 disciplinary history, Which the Hearing Officer finds t0 be a mitigating factor. On 3. allegations. June 29, 2018, Speaker V01. 2, (Tr. 157-60) conversation. (Tr. V01. 2, 169) the extent that uncomfortable, 4. I I He Bosma and Sen. Respondent was apologetic and explanatory during testified that he told Speaker did anything or said anything t0 offend want Long notified Respondent of to apologize for tha ." Bosma and anybody 0r to Sen. Long his earlier comments, make anybody testifying, no different today than I felt then, notwithstanding all that we've heard, all that we've gone through, the bottom-line is I never want t0 be in a position Where someone has felt t0 be uncomfortable or offended by my words 0r my actions. Unfortunately, I'm human and that occurs, s0 When that occurs it's my purpose to d0 what I can t0 remedy that through an I feel apology, I still feel that way. (Tr. V01. 4, 124) -28- this that "[t]o (Tr. V01. 4, 77) At the hearing, Respondent confirmed the feel 5. Although Respondent appeared at one point to be apologetic, because of his actions after the Sine Die party, the Hearing Officer gives little weight to this mitigating factor. 6. Nonetheless, Respondent offers no assurance to the Hearing Officer that these behaviors will not happen again. Further, Respondent appears more concerned with his political and professional reputation than with addressing the charges brought before the Court. The Hearing Officer finds these points to be aggravating factors. 7. On July 2, 2018, after learning that The Indianapolis Star had a copy of the Taft Report, Speaker Bosma and Sen. Long met with Respondent again. Respondent was upset by the leaking of the Taft Report and stated that "these are lies, [and] we are going to have to attack this investigation[.]" (Tr. Vol. 2, 170) 8. On July 2, 2018, after the allegations became public, Respondent gave a statement to The Indianapolis Star denying the allegations. (Ex. 64) 9. At some point, Respondent gathered a group of Office of the Attorney General employees, paid consultants, and supporters (collectively, "Respondent's team") to coordinate an extensive media campaign to protect his public image. Throughout this media campaign, Respondent's team exchanged emails in which they discussed and shared drafts of opinion pieces and letters to the editor that defended Respondent and attempted to discredit the four women. 10. On Friday, July 6, 2018, Respondent began exchanging emails with employees of the Office of the Attorney General. These emails contained drafts of a news release regarding the allegations. (Exhs. 9-14) 11. That same day, the news release was posted to the Office of the Indiana Attorney General website, and the official Twitter account of the Office of the Indiana Attorney General tweeted the news release. (Ex. 1) Respondent stated in the news release, "[t]he allegations - 29 - against me are vicious and false." (Ex. 1) Respondent called for an independent investigation, stating "[o]nce the investigation is complete and I am exonerated, I would hope that my good name is properly restored with the same vigor with which it has been tarnished." (Ex. 1) 12. On July 9, 2018, the official Twitter account of the Office of the Indiana Attorney General tweeted that Respondent would be holding a press conference regarding the allegations. (Ex. 1) 13. During this press conference, Respondent stated that he was a "condemned man," that he was "already convicted," and that the "false accusations have irretrievably damaged [his] reputation." (Ex. 3) He concluded, "[a] week ago today I had a name. I want my name back." (Ex. 3) Respondent also stated that "[v]ictims of sexual abuse and/or sexual harassment deserve to have their voices heard" but then contradicted one complainant's report. (Ex. 3) 14. On July 12, 2018, the official Twitter account of the Office of the Indiana Attorney General tweeted, "Accuser sought guidance to strengthen attack on Attorney General Curtis Hill." (Ex. 7) The tweet included a link to a press release posted on the website of the Office of the Indiana Attorney General. The press release stated that on July 11, 2018, the Office of the Indiana Attorney General received an email of a draft "'story'" from one complainant who was trying to email a close friend; that the complainant "editorialized her recollection of events" and asked for help from her friend; and that the integrity of the investigation was compromised because the women were coordinating and changing their stories under the direction of others. (Ex. 7) The press release provided a link to that email. (Ex. 7) In point of fact, the woman's email asked for help with proofreading and editing a draft of a public statement – the same steps that Respondent's team had taken with their own public statements. - 30 - 15. On Friday, July 13, 2018, Respondent's team began exchanging emails regarding drafts of a statement to "expose DaSilva[.]" (Exhs. 15-16) One draft referred to a "coordinated attack on" Respondent that was "false and vicious" and a "malicious onslaught." The draft further stated that "it is time to begin to expose the political motivations behind this spiteful attempt to tear down a political threat to others in positions of power." (Ex. 16) 16. On Wednesday, July 18, 2018, Respondent's team began exchanging emails regarding a draft of a press release regarding the charges. (Exhs. 19-21, 24-27) In one email, one employee of the Office of the Attorney General suggested titling the draft of the press release "Leakers & Liars." (Exhs. 24-25) 17. On Sunday, July 22, 2018, Respondent's team began exchanging emails regarding another press release. (Ex. 28) 18. On Tuesday, July 24, 2018, a member of Respondent's team emailed about a press email. (Ex. 29) 19. On Wednesday, July 25, 2018, Respondent's team began exchanging emails regarding an opinion piece addressing the charges against Respondent. (Exhs. 30, 32-33) 20. On Tuesday, July 31, 2018, a member of Respondent's team sent an email of "talking points" that included suggesting that people were casting doubt on Respondent's character for partisan, political reasons. (Ex. 34) 21. On Wednesday, August 1, 2018, Respondent's team circulated a draft of another opinion piece. This draft also alleged that people were casting doubt on Respondent's character for partisan, political reasons. (Ex. 35) 22. On Monday, August 13, 2018, and Friday, September 14, 2018, a member of Respondent's team circulated drafts of letters to the editor. - 31 - These drafts ascribe political motivation to state leadership. (Exhs. 36-37) 23. On Thursday, March 21, 2019, a member of Respondent's team emailed the team, asking "Any objection to pitching story to conservative media that Holcomb cronies and liberals are driving this?" and stating "We should shop portions of research enclosed no fingerprints to national conservative outlet to generate piece that friends would use with grassroots folks." (Ex. 56) 24. On Saturday, May 25, 2019, a member of Respondent's team emailed Respondent with a draft of a statement written in defense of Respondent. This draft stated that "most politicians are friendly people, many even gregarious. They hug and touch other people. It is harmless, innocent, and definitely not sexual groping"; "[i]nappropriate touching accusations . . . may be uncomfortable but not necessarily criminal or illegal. It was not severe or pervasive. . . . It was friendly political touching"; and that "[p]eople can be liable for defamation." (Ex. 59) 25. Respondent testified that how the "allegations . . . were made and the way in which it was handled and leaked to the press was a vicious attack of me from a political standpoint." (Tr. Vol. 2, 176) 26. The evidence establishes that Respondent took part in a long orchestrated campaign to defend himself. This campaign used incendiary language that attempted to cast doubt not only on the four women's allegations but on their motivations for making the allegations. The evidence also establishes that at no point during this campaign did Respondent urge his team to exercise caution or show respect toward the women, nor did he express concern about any potential impact his response may have on them. 27. Although Respondent argues that he attended the Sine Die party as an individual, not in his capacity as the Attorney General, he responded to the allegations in his capacity as the - 32 - Attorney General. He involved the Office of the Indiana Attorney General employees, website, and Twitter account in his defense. A significant amount of these efforts took place during workday business hours. In short, Respondent responded to the allegations as the Indiana Attorney General, not as an ordinary lawyer. 28. The Preamble to the Rules of Professional Conduct states that "[a] lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice. Whether or not engaging in the practice of law, lawyers should conduct themselves honorably." Prof. Cond. R. Preamble. 29. Regarding the duty of ethical conduct of lawyers in prominent legal positions, our Supreme Court has long held that "[t]he duty of judges and prosecutors to conform their behavior to the law does not arise solely out of their status as attorneys. As officers charged with administration of the law, their own behavior has the capacity to bolster or damage public esteem for the system different than that of attorneys otherwise in practice." Matter of Oliver, 493 N.E.2d 1237, 1242 (Ind. 1986). "Where those whose job it is to enforce the law break it instead, the public rightfully questions whether the system itself is worthy of respect." Matter of Oliver, 493 N.E.2d 1237, 1242 (Ind. 1986). 30. "Lawyers holding public office assume legal responsibilities going beyond those of other citizens. A lawyer's abuse of public office can suggest an inability to fulfill the professional role of lawyers." Prof. Cond. R. 8.4 cmt. 4. 31. Further, "[i]n a permissive society, it is irrelevant whether a judge's conduct or speech is no different from that of the 'ordinary person,' since improper conduct which may be overlooked when committed by the ordinary person, even an attorney, cannot be overlooked when committed by a member of the . . . judiciary. By seeking and accepting the responsibilities - 33 - of the office of judge, regardless of the level of office, a judge undertakes to conduct herself or himself both officially and personally in accordance with the highest standards that the citizens" of the state can expect. In re Barr, 13 S.W.3d 525, 535-36 (Tex. Rev. Trib. 1998) (citations omitted). A citizen who serves as a statewide elected official "is among a chosen few who no longer enjoys the role of an 'ordinary' citizen." In re Barr, 13 S.W.3d 525, 560 (Tex. Rev. Trib. 1998). 32. Similarly, "[j]udges are held to higher standards of integrity and ethical conduct than attorneys or other persons not invested with the public trust. . . . Even in a judge's personal life, he or she must adhere to standards of probity and propriety far higher than those deemed acceptable for others." In re Abrams, 257 P.3d 167, 174 (2011) (quotation marks and citation omitted). 33. The position of Indiana Attorney General is an executive branch equivalent of a judicial officer. The Indiana Attorney General is the highest level of attorney in the State of Indiana. The Indiana Attorney General and the Office of the Indiana Attorney General serve the citizens of the State of Indiana by enforcing the laws of the state. 34. Accordingly, the Indiana Attorney General's duty to conform his or her behavior to the law arises from more than his or her status as an attorney. The Indiana Attorney General is the state's chief law enforcement officer and is charged with administration of the law. The Indiana Attorney General holds a position of public trust and engages in work that has a wide impact across the state. The conduct of the Indiana Attorney General can affect the public's perception of our state's executive branch. 35. By seeking and accepting the responsibilities of the office of Indiana Attorney General, Respondent undertook to conduct himself both officially and personally in accordance - 34 - with the highest standards that the citizens of the State of Indiana can expect. 36. In responding to the allegations in his official capacity as the Indiana Attorney General, Respondent used his position to intimidate the four women who alleged misconduct, three of whom were young women in their early twenties at the onset of their careers. Respondent's unwavering public campaign in defense of himself showed little restraint and amplified the impact of his conduct on the four women. He held press conferences, issued press releases, and stood by as team members drafted public opinion pieces casting doubt on the four women's allegations and ascribing them political motivations. In one instance, the Office of the Indiana Attorney General posted an email one complainant sent a friend regarding the Sine Die party to the Office of the Indiana Attorney General's website. This action could serve only to intimidate the woman, and anyone else thinking of stepping forward. 37. Although there was testimony characterizing Respondent as a gregarious person who regularly made physical contact with people when talking with them, there was also credible testimony from the four women that he touched them and made sexual comments and that the touching and the comments were unwelcome. 38. Respondent's conduct, both during and after the Sine Die party, has caused injury to the four women. Respondent's conduct was offensive, invasive, damaging, and embarrassing to the four women. See In re Barr, 13 S.W.3d 525, 535 (Tex. Rev. Trib. 1998). Respondent showed no insight regarding the impact of his actions. 39. Further, Respondent's conduct, both during and after the Sine Die party, has had an adverse impact on the public's perception of our State's executive branch and on the profession. - 35 - ULTIMATE CONCLUSION The Hearing Officer finds and concludes by clear and convincing evidence that Respondent violated Rules 8.4(b) and 8.4(d) 0f the Rules 0f Professional Conduct. The Hearing Officer finds and concludes that Respondent did not Violate Admission and Discipline Rule 22. Respondent's conduct was offensive, invasive, damaging and embarrassing t0 Brock, Reardon, Lozano and DaSilva. As Attorney General, he used his state office staff and others t0 engage in a public Based 0n campaign all to defend himself and intimidate the complainants. 0f the foregoing, the Hearing Officer recommends a sanction 0f a sixty (60) day suspension without automatic reinstatement. W W 4 Date: February 14, 2020 Myra Melby Hearing Officer DISTRIBUTION TO: Charles M. Kidd Seth T. Pruden Angie L. Ordway Disciplinary 251 N. Commission Illinois Street, Suite Indianapolis, 1650 IN 46204 Donald R. Lundberg Lundberg Legal P.O. BOX 19327 Indianapolis, IN 462 1 9 James H. Voyles, Jennifer Jr. M. Lukemeyer Voyles Vaiana Lukemeyer Baldwin & Webb 141 East Washington Street, Suite 300 Indianapolis, IN 46204 -36-