Reardon, 042809 INAGO, AGO 2009-5

• Case Date: April 28, 2009
• Court: Indiana

The Honorable Mara Candelaria Reardon AGO 2009-5 No. 2009-5 Indiana Attorney General Opinion April 28, 2009          The Honorable Mara Candelaria Reardon          Indiana House of Representatives          200 W. Washington St.          Indianapolis, IN 46204 RE: Commission on Hispanic and Latino Affairs; Role of Proxies          Dear Representative Reardon:          In your e-mail communication of March 30, 2009, with Mr. Gordon E. White, Deputy Attorney General, you posed the following restated five (5) questions with respect to the Commission on Hispanic and Latino Affairs (hereafter, the “Commission”):

1. The chairperson initially canceled the Commission meeting of January 29, 2009, due to inclement weather. Later, the executive director advised members that the Commission meeting would be held. Was this a legal meeting of the Commission?

2. What are the differences between a “designee” and a “proxy”?

3. Can proxies be used to establish a quorum?

4. Can proxies be used to vote on official Commission business? According to the advisory opinion of March 26, 2009, the answer appears to be no.

5. Commission business may have been conducted in the past through the use of proxies. If this did occur, is such Commission business now considered invalid? With reference to the election conducted on January 29, 2009, should another election be held?

         BRIEF ANSWERS          1. The statutory provisions creating the Commission do not speak to a quorum. However, statute does require the Commission, in order to conduct its business, to have the affirmative votes of a majority of the appointed members. The Commission is presently at its full complement of twenty (20) appointed members. Accordingly, the Commission, in order to conduct its business, would require the affirmative votes of at least eleven (11) members. The meeting of January 29, 2009, was a legal meeting as statute does not indicate how many members are necessary in order to have a meeting. However, without the affirmative votes of at least eleven (11) members, the Commission could not conduct any business, including the election of officers.          2. Statute provides that only the six state agency directors and the Lieutenant Governor can appoint designees to act in their stead. No other Commission member is authorized to act through a designee or a proxy. Any designee, however, must be a Hispanic or Latino employee of the state agency or the Lieutenant Governor’s office in order to qualify as a designee. A properly appointed and qualified designee has the same authority to act as the state agency or office the designee is representing.          3. The statutory provisions creating the Commission do not address a “quorum.” However, statute does indicate that, in order for the Commission to conduct business on any measure before it, there must be affirmative votes of the majority of the appointed members. At present, the Commission has a full complement of twenty (20) members. Accordingly, in order to conduct business on any measure before the Commission, there would have to be affirmative votes of at least eleven (11) members. If a measure before the Commission has not received the affirmative votes of at least eleven (11) members, then the measure is not yet concluded.          4. Although Commission business may have been conducted in the past through either unqualified designees or unauthorized proxies, such Commission business is not invalidated by application of the doctrine of de facto officer.          ANALYSIS          Background          The Commission is composed of twenty (20) members, with six (6) appointed by the President Pro Tempore of the Senate, six (6) appointed by the Speaker of the House, one (1) by the Governor, and the remaining seven (7) designated by statute. These remaining seven are directors of state agencies (the Secretary of the Family and Social Services Administration, the Commissioner of the State Health Department, the State Superintendent of Public Instruction, the Commissioner of the Department of Correction, the Director of the Civil Rights Commission, and the Commissioner of the Department of Workforce Development) along with the Lieutenant Governor. Ind. Code § 4-23-28-4.          These latter seven members are authorized by statute to appoint a “designee,” but this designee must be “a Hispanic or Latino employee” of the respective state agency or the Lieutenant Governor’s office. Ind. Code § 4-23-28-4(a)(5)-(10), (12). The appointment by the Governor must be “[a] Hispanic or Latino business person[.]” Ind. Code § 4-23-28-4(a)(11). While four (4) members must be members of the General Assembly, Ind. Code § 4-23-28-4(a)(1), (2), the remaining eight (8) appointments by the President Pro Tempore of the Senate and the Speaker of the House must be “members of the Hispanic/Latino community who are not members of the general assembly.” Ind. Code § 4-23-28-4(a)(3), (4).          Other than the six (6) directors of state agencies and the Lieutenant Governor, no other appointed member of the Commission is specifically authorized to designate anyone to act in that member’s stead.          Under Ind. Code § 4-23-28-8, “[t]he affirmative votes of a majority of the members appointed to the commission are...