CHAPTER 6. ADDITIONAL POWERS OF STATE EXAMINER AND ATTORNEY GENERAL
IC 5-11-6
Chapter 6. Additional Powers of State Examiner and Attorney
General
IC 5-11-6-1
Taxpayer petition; examination of public contracts; prosecutions
resulting therefrom
Sec. 1. (a) The state examiner, personally or through the deputy
examiners, field examiners, or private examiners, upon the petition
of twenty-five (25) interested taxpayers showing that effective local
relief has not and cannot be obtained after due effort, shall make the
inquiries, tests, examinations, and investigations that may be
necessary to determine whether:
(1) any public contract has been regularly and lawfully executed
and performed; or
(2) any public work, building, or structure has been or is being
performed, built, or constructed in accordance with the terms
and provisions of the contract, and in compliance with the plans
and specifications, if any.
Upon a written petition of twenty-five (25) taxpayers the state
examiner may also require all plans, specifications, and estimates to
be submitted to the state examiner for corrections and approval
before a contract is awarded.
(b) The state examiner, deputy examiner, and any field examiner,
when engaged in making an inquiry, test, examination, or
investigation under subsection (a), is entitled to examine and inspect
any public records, documents, data, contracts, plans, and
specifications contained or found in any public office or other place
pertaining or relating to the public contract or public work, building,
or structure. In addition, subpoenas may be issued to witnesses to
appear before the examiner in person or to produce books and papers
for inspection and examination. The state examiner, deputy, field,
and private examiner may administer oaths and examine witnesses
under oath either orally or by interrogatories on all matters under
examination and investigation. Under order of the state examiner, the
examination may be transcribed, with the reasonable expense paid by
the municipality in the same manner as the compensation of the field
examiner is paid.
(c) The state examiner, the deputy examiner, and a field examiner
may enforce attendance and answers to questions and interrogatories,
as provided by law, with respect to examinations and investigations
made by the state examiner, deputy examiner, field examiner, or
private examiner of public offices.
(d) The state examiner, deputy examiner, any field examiner, and
any private examiner, when making an examination or investigation
under subsection (a), shall examine, inspect, and test the public
works, buildings, or structures in the manner that the examiner sees
fit to determine whether it is being performed, built, or constructed
according to the contract and plans and specifications.
(e) The state examiner shall file a report covering any
examination or investigation that discloses:
(1) fraud, collusion, misconduct, or negligence in the letting or
the execution of any public contract or in the performance of
any of the terms and conditions of any public contract; or
(2) any failure to comply with the terms or conditions of any
public contract in the construction of any public work, building,
or structure or to perform, build, or construct it according to the
plans and specifications, if any, provided in the contract;
that causes loss, injury, waste, or damage to the state, the
municipality, taxing or assessment district, other public entity, or to
its citizens, if it is enforceable by assessment or taxation.
(f) The report must meet the following requirements:
(1) The report must be made, signed, and verified in
quadruplicate by the examiner making the examination.
(2) The report shall be filed promptly with the state examiner.
After inspection of the report, the state examiner shall file a copy of
the report promptly with the attorney general.
(g) The attorney general shall diligently institute and prosecute
civil proceedings against any or all officers, individuals, and persons
in the form and manner that the attorney general determines will
secure a proper recovery to the state, municipality, taxing or
assessment district, or other public entity injured, defrauded, or
damaged by the matters in the report. These prosecutions may be
made by the attorney general and the recovery may be had, either
upon public official bonds, contractors' bonds, surety or other bonds,
or upon individual liability, either upon contract or in tort, as the
attorney general determines is wise. No action or recovery in any
form or manner, or against any party or parties, precludes further or
additional action or recovery in any other form or manner or against
another party, either concurrently with or later found necessary, to
secure complete recovery and restitution with respect to all matters
exhibited, set out, or described in the report. The suits may be
brought in the name of the state on the relation of the attorney
general for the benefit of the state, or the municipality, taxing or
assessment district, or other public entity that may be proper. The
actions brought against any defendants may be joined, as to parties,
form, and causes of action, in the manner that the attorney general
decides.
(h) Any report described in this section or a copy duly certified by
the state examiner shall be taken and received in any and all courts
of this state as prima facie evidence of the facts stated and contained
in the reports.
(i) If an examination, investigation, or test is made without a
petition being first filed and the examination, investigation, or test
shows that the terms of the contract are being complied with, then the
expense of the examination, investigation, or test shall be paid by the
state upon vouchers approved by the state examiner from funds
available for contractual service of the state board of accounts. If
such a report shows misfeasance, malfeasance, or nonfeasance in
public office or shows that the terms of the plans and specifications
under which a contract has been awarded are not being complied
with, it is unlawful to make the report public until the report has been
certified to the attorney general.
(j) If, during an examination under this article, a deputy examiner,
field examiner, or private examiner acting as an agent of the state
examiner determines that all of the following conditions are satisfied,
the examiner shall report the determination to the state examiner:
(1) A substantial amount of public funds has been
misappropriated or diverted.
(2) The deputy examiner, field examiner, or private examiner
acting as an agent of the state examiner has a reasonable belief
that the malfeasance or misfeasance that resulted in the
misappropriation or diversion of public funds was committed by
the officer or an employee of the office.
(k) After receiving a preliminary report under subsection (j), the
state examiner may provide a copy of the report to the attorney
general. The attorney general may institute and prosecute civil
proceedings against the delinquent officer or employee, or upon the
officer's or employee's official bond, or both, and against any other
proper person that will secure to the state or to the proper
municipality the recovery of any funds misappropriated, diverted, or
unaccounted for.
(l) In an action under subsection (k), the attorney general may
attach the defendant's property under IC 34-25-2.
(m) A preliminary report under subsection (j) is confidential until
the final report under subsection (e) is issued, unless the attorney
general institutes an action under subsection (k) on the basis of the
preliminary report.
(Formerly: Acts 1923, c.120, s.1.) As amended by P.L.3-1986,
SEC.20; P.L.176-2009, SEC.5.
IC 5-11-6-2
Reports of state examiner
Sec. 2. All the provisions of section 1 of this chapter relating to
the powers and duties of the attorney general shall apply to all
reports of the state examiner, as provided in section 1 of this chapter,
whether such inquiries, tests, examination, or investigation and the
reports made thereon shall have been made before or after March 7,
1923.
(Formerly: Acts 1923, c.120, s.2.) As amended by P.L.25-1986,
SEC.40.
IC 5-11-6-3
Public wrongdoing; institution of civil proceeding
Sec. 3. If any examination or investigation made by the state
examiner personally or through a deputy examiner, field examiner,
or private examiner under of this chapter or of any other statute
discloses:
(1) malfeasance, misfeasance, or nonfeasance in office, or of
any officer or employee;
(2) that any public money has been:
(A) unlawfully expended, either by having been expended
for a purpose not authorized by law in an amount exceeding
that authorized by law, or by having been paid to a person
not lawfully entitled to receive it; or
(B) obtained by fraud or in any unlawful manner; or
(3) that any money has been wrongfully withheld from the
public treasury;
a duly verified copy of the report shall be submitted by the state
examiner to the attorney general, who shall institute and prosecute
civil proceedings as provided in section 1 of this chapter.
(Formerly: Acts 1923, c.120, s.3.) As amended by P.L.3-1986,
SEC.21.
IC 5-11-6-4
Grand jury; certified copy of reports disclosing crimes or offenses;
expenses of field examination
Sec. 4. (a) If a report is filed with the attorney general that
discloses any offense, the state examiner shall present a certified
copy of the report and competent testimony supporting the charges
made in the report to the grand jury of the county in which the
offense is alleged to have been committed at its first convenient
session. The attorney general shall direct, supervise, and assist in the
prosecution of the offense before the grand jury and in the courts.
(b) The per diem and actual expenses of all field or private
examiners required by the state examiner, the attorney general, or
any prosecuting attorney to attend sessions of grand juries or trials
in connection with the prosecution shall be paid by the state upon
vouchers approved by the state examiner from funds available for
office and traveling expenses for the state board of accounts.
(Formerly: Acts 1923, c.120, s.4.) As amended by Acts 1978, P.L.2,
SEC.512; P.L.3-1986, SEC.22.
IC 5-11-6-5
Effect of chapter; municipality defined
Sec. 5. (a) The provisions of this chapter shall not be construed as
repealing any laws in force on March 7, 1923, but shall be construed
only as conferring additional duties and powers upon the state
examiner, deputy examiners, field examiners, and the attorney
general of the state and providing additional remedies as to the
matters set forth in those laws, and all the remedies provided in this
chapter shall be additional and concurrent and not exclusive.
(b) The term "municipality", as used in this chapter, shall be
construed to extend to and include any county, township, city, town,
school town, school township, school city, or board of park
commissioners in this state.
(Formerly: Acts 1923, c.120, s.5.) As amended by P.L.25-1986,
SEC.41.