CHAPTER 2. INDIANA DEPARTMENT OF TRANSPORTATION
IC 8-23-2
Chapter 2. Indiana Department of Transportation
IC 8-23-2-1
Establishment of department
Sec. 1. The Indiana department of transportation is established.
As added by P.L.112-1989, SEC.5.
IC 8-23-2-2
Commissioner; appointment; compensation
Sec. 2. (a) The governor shall appoint a commissioner who isresponsible for organizing and administering the department.
(b) The commissioner:
(1) serves at the pleasure of the governor; and
(2) is entitled to receive compensation set by the budget agency.
As added by P.L.112-1989, SEC.5.
IC 8-23-2-3
Employees; conditions of employment; highway district managersand subdistrict superintendents; chief highway engineer; bond;oath
Sec. 3. (a) The department may hire qualified individuals to carryout its responsibilities subject to the budget agency's approval underIC 4-12-1-13 and may prescribe their terms and conditions ofemployment subject to this section.
(b) All employees of the department whose duties requirespecialized knowledge or skill, acquired by professional or technicaleducation, training, and experience:
(1) shall be employed solely on the basis of ability, taking intoaccount their qualifications to perform the duties of theirpositions;
(2) shall be employed regardless of political affiliation;
(3) may not be appointed, promoted, reduced, removed, or inany way favored or discriminated against because of theirpolitical affiliation, race, religion, color, sex, national origin, orancestry;
(4) are ineligible to hold, or be a candidate for, elected office(as defined in IC 3-5-2-17) while employed by the department,except as provided in subsection (h);
(5) may not solicit or receive political contributions;
(6) may not be required to make contributions for or participatein political activities;
(7) shall be employed on a six (6) month probationary period,with a written evaluation prepared after five (5) months ofservice by their immediate supervisor for the commissioner todetermine if employment should continue beyond theprobationary period; and
(8) shall be evaluated annually in writing by their immediatesupervisor for the purpose of advising the commissioner as towhether the employees should remain in their positions. (c) Highway district managers are and subdistrict superintendentsare not subject to subsection (b). A person may not be employed bythe department as a highway subdistrict superintendent unless theperson has received training or experience in maintaining orconstructing roads, highways, and bridges. Highway subdistrictsuperintendents shall devote full time to the performance of theirduties. Highway district managers serve at the pleasure of thecommissioner but upon reassignment shall be retained in a positionof equal or higher job classification within the department. However,the employee may elect to serve in the next lower job classificationwithin the same district.
(d) The appointment or dismissal of the chief highway engineerfor the department is at the discretion of the commissioner. The chiefhighway engineer must be a registered professional engineer andmust be a graduate civil engineer or have at least ten (10) years ofexperience in highway engineering.
(e) All employees of the department are subject to IC 4-15-1.8 andthe rules that implement IC 4-15-1.8.
(f) Subject to this section:
(1) all employees of the department are subject to demotion,discipline, dismissal, or transfer at the discretion of thecommissioner; and
(2) cause for demotion, dismissal, discipline, or transfer mayinclude but is not limited to failure to satisfactorily effectuatethe department's transportation plan and work programs.
(g) The commissioner may:
(1) require an employee or agent of the department to executeand furnish a bond conditioned upon the faithful discharge andperformance of the duties of the employee or agent and theaccurate accounting of public funds that come into theemployee's or agent's control or custody; and
(2) prescribe an oath of employment for an employee or agentof the department.
(h) Employees described in subsection (b) may:
(1) be candidates for:
(A) school board office (as defined in IC 3-5-2-45); or
(B) precinct committeeman or state convention delegate;
and serve in that office if elected; and
(2) be appointed to an office described in subdivision (1) andserve in that office if appointed.
As added by P.L.112-1989, SEC.5. Amended by P.L.5-1989, SEC.77.
IC 8-23-2-4
Repealed
(Repealed by P.L.1-1991, SEC.82.)
IC 8-23-2-4.1
Department responsibilities; activities
Sec. 4.1. The department is responsible for the followingactivities: (1) The identification, development, coordination, andimplementation of the state's transportation policies.
(2) The approval of applications for federal transportationgrants from funds allocated to the state:
(A) from the Highway Trust Fund (23 U.S.C.);
(B) from the Aviation Trust Fund (49 U.S.C.);
(C) through the Federal Transit Administration (49 U.S.C.5301 et seq.); or
(D) from any other federal grant that has a transportationcomponent.
(3) The review, revision, adoption, and submission of budgetproposals.
(4) The construction, reconstruction, improvement,maintenance, and repair of:
(A) state highways; and
(B) a toll road project or toll bridge in accordance with acontract or lease entered into with the Indiana financeauthority under IC 8-9.5-8-7 or IC 8-9.5-8-8.
(5) The administration of programs as required by law,including the following:
(A) IC 8-3-1 (railroads).
(B) IC 8-3-1.5 (rail preservation).
(C) IC 8-21-1 (aeronautics).
(D) IC 8-21-9 (airports).
(E) IC 8-21-11 (aviation development program).
As added by P.L.1-1991, SEC.83. Amended by P.L.14-2003, SEC.1;P.L.235-2005, SEC.122.
IC 8-23-2-5
Department duties
Sec. 5. (a) The department, through the commissioner or thecommissioner's designee, shall:
(1) develop, continuously update, and implement:
(A) long range comprehensive transportation plans;
(B) work programs; and
(C) budgets;
to assure the orderly development and maintenance of anefficient statewide system of transportation;
(2) implement the policies, plans, and work programs adoptedby the department;
(3) organize by creating, merging, or abolishing divisions;
(4) evaluate and utilize whenever possible improvedtransportation facility maintenance and construction techniques;
(5) carry out public transportation responsibilities, including:
(A) developing and recommending public transportationpolicies, plans, and work programs;
(B) providing technical assistance and guidance in the areaof public transportation to political subdivisions with publictransportation responsibilities;
(C) developing work programs for the utilization of federal
mass transportation funds;
(D) furnishing data from surveys, plans, specifications, andestimates required to qualify a state agency or politicalsubdivision for federal mass transportation funds;
(E) conducting or participating in any public hearings toqualify urbanized areas for an allocation of federal masstransportation funding;
(F) serving, upon designation of the governor, as the stateagency to receive and disburse any state or federal masstransportation funds that are not directly allocated to anurbanized area;
(G) entering into agreements with other states, regionalagencies created in other states, and municipalities in otherstates for the purpose of improving public transportationservice to the citizens; and
(H) developing and including in its own proposedtransportation plan a specialized transportation services planfor the elderly and persons with disabilities;
(6) provide technical assistance to units of local governmentwith road and street responsibilities;
(7) develop, undertake, and administer the program of researchand extension required under IC 8-17-7;
(8) allow public testimony in accordance with section 17 of thischapter whenever the department holds a public hearing (asdefined in section 17 of this chapter); and
(9) adopt rules under IC 4-22-2 to reasonably and costeffectively manage the right-of-way of the state highway systemby establishing a formal procedure for highway improvementprojects that involve the relocation of utility facilities byproviding for an exchange of information among thedepartment, utilities, and the department's highway constructioncontractors.
(b) Rules adopted under subsection (a)(9) shall not unreasonablyaffect the cost, or impair the safety or reliability, of a utility service.
(c) A civil action may be prosecuted by or against the department,a department highway construction contractor or a utility to recovercosts and expenses directly resulting from willful violation of therules. Nothing in this section or in subsection (a)(9) shall beconstrued as granting authority to the department to adopt rulesestablishing fines, assessments or other penalties for or againstutilities or the department's highway construction contractors.
As added by P.L.112-1989, SEC.5. Amended by P.L.18-1990,SEC.207; P.L.23-1993, SEC.20; P.L.52-1995, SEC.2; P.L.35-2005,SEC.1.
IC 8-23-2-6
Department powers; contracts and lease with the Indiana financeauthority; confidential documents
Sec. 6. (a) The department, through the commissioner or thecommissioner's designee, may do the following: (1) Acquire by purchase, gift, or condemnation, sell, abandon,own in fee or a lesser interest, hold, or lease property in thename of the state, or otherwise dispose of or encumber propertyto carry out its responsibilities.
(2) Contract with persons outside the department to do thosethings that in the commissioner's opinion cannot be adequatelyor efficiently performed by the department.
(3) Enter into:
(A) a contract with the Indiana finance authority underIC 8-9.5-8-7; or
(B) a lease with the Indiana finance authority underIC 8-9.5-8-8;
for the construction, reconstruction, improvement, maintenance,repair, or operation of toll road projects under IC 8-15-2 andtoll bridges under IC 8-16-1.
(4) Sue and be sued, including, with the approval of the attorneygeneral, the compromise of any claims of the department.
(5) Hire attorneys.
(6) Perform all functions pertaining to the acquisition ofproperty for transportation purposes, including the compromiseof any claims for compensation.
(7) Hold investigations and hearings concerning matterscovered by orders and rules of the department.
(8) Execute all documents and instruments necessary to carryout its responsibilities.
(9) Make contracts and expenditures, perform acts, enter intoagreements, and make rules, orders, and findings that arenecessary to comply with all laws, rules, orders, findings,interpretations, and regulations promulgated by the federalgovernment in order to:
(A) qualify the department for; and
(B) receive;
federal government funding on a full or participating basis.
(10) Adopt rules under IC 4-22-2 to carry out itsresponsibilities.
(11) Establish regional offices.
(12) Adopt a seal.
(13) Perform all actions necessary to carry out the department'sresponsibilities.
(14) Order a utility to relocate the utility's facilities andcoordinate the relocation of customer service facilities if:
(A) the facilities are located in a highway, street, or road;and
(B) the department determines that the facilities willinterfere with a planned highway or bridge construction orimprovement project funded by the department.
(15) Reimburse a utility:
(A) in whole or in part for extraordinary costs of relocationof facilities;
(B) in whole for unnecessary relocations; (C) in accordance with IC 8-23-26-12 and IC 8-23-26-13;
(D) in whole for relocations covered by IC 8-1-9; and
(E) to the extent that a relocation is a taking of propertywithout just compensation.
(16) Provide state matching funds and undertake any surfacetransportation project eligible for funding under federal law.However, money from the state highway fund and the statehighway road construction and improvement fund may not beused to provide operating subsidies to support a publictransportation system or a commuter transportation system.
(b) In the performance of contracts and leases with the Indianafinance authority, the department has authority under IC 8-15-2, inthe case of toll road projects and IC 8-16-1, in the case of toll bridgesnecessary to carry out the terms and conditions of those contracts andleases.
(c) The department shall:
(1) classify as confidential any estimate of cost prepared inconjunction with analyzing competitive bids for projects untila bid below the estimate of cost is read at the bid opening;
(2) classify as confidential that part of the parcel files thatcontain appraisal and relocation documents prepared by thedepartment's land acquisition division; and
(3) classify as confidential records that are the product ofsystems designed to detect collusion in state procurement andcontracting that, if made public, could impede detection ofcollusive behavior in securing state contracts.
This subsection does not apply to parcel files of public agencies oraffect IC 8-23-7-10.
As added by P.L.112-1989, SEC.5. Amended by P.L.18-1990,SEC.208; P.L.2-1991, SEC.63; P.L.63-1992, SEC.3; P.L.39-1993,SEC.3; P.L.109-1993, SEC.1; P.L.235-2005, SEC.123.
IC 8-23-2-7
Repealed
(Repealed by P.L.18-1990, SEC.299.)
IC 8-23-2-8
Repealed
(Repealed by P.L.18-1990, SEC.299.)
IC 8-23-2-9
References to certain transportation agencies as references todepartment of transportation
Sec. 9. After June 30, 1989, any reference to:
(1) the transportation coordinating board (IC 8-9.5-2-1,repealed);
(2) the transportation planning office (IC 8-9.5-3-1, repealed);
(3) the department of highways (IC 8-9.5-4-2, repealed); and
(4) the department of transportation (IC 8-9.5-5-2, repealed);
in any statute or rule shall be treated as a reference to the Indiana
department of transportation, as established by this article.
As added by P.L.112-1989, SEC.5. Amended by P.L.1-2009, SEC.76.
IC 8-23-2-10
Preexisting rules of certain transportation agencies as rules ofdepartment of transportation
Sec. 10. Any rules of:
(1) the transportation coordinating board (IC 8-9.5-2-1,repealed);
(2) the transportation planning office (IC 8-9.5-3-1, repealed);
(3) the department of highways (IC 8-9.5-4-2, repealed); and
(4) the department of transportation (IC 8-9.5-5-2, repealed);
filed with the secretary of state before July 1, 1989, shall be treatedafter June 30, 1989, as though they had been adopted by the Indianadepartment of transportation established by this article.
As added by P.L.112-1989, SEC.5. Amended by P.L.1-2009, SEC.77.
IC 8-23-2-11
Application of section; surplus property; trust bid
Sec. 11. (a) This section applies to the disposal of surplus real orpersonal property by the department.
(b) Whenever surplus real property or personal property isdisposed of by acceptance of bids, a bid submitted by a trust (asdefined in IC 30-4-1-1(a)) must identify each:
(1) beneficiary of the trust; and
(2) settlor empowered to revoke or modify the trust.
As added by P.L.336-1989(ss), SEC.22.
IC 8-23-2-12
Engineers and land surveyors; contracts; compensation
Sec. 12. A contract for professional services of engineers or landsurveyors may be made on the basis of competence andqualifications for the type of services to be performed. Compensationthat the department determines to be reasonable may be negotiated.
As added by P.L.18-1990, SEC.209.
IC 8-23-2-12.5
"Contractor"; "professional services"; liability of contractors
Sec. 12.5. (a) As used in this section, "contractor" refers to aperson who provides professional services under a contract with thedepartment.
(b) As used in this section, "professional services" refers toengineering, architectural, or surveying services.
(c) Notwithstanding any provision of IC 26-2-5-1 to the contrary,the department may not require a contractor to assume any liabilityor indemnify the state for any amount greater than the degree of faultof the contractor.
(d) Any contractual provision in conflict with the prohibitionscontained in subsection (c) is void and unenforceable.
As added by P.L.50-2008, SEC.1.
IC 8-23-2-13
Notaries public; costs and expenses; powers
Sec. 13. (a) The department shall determine the number of itsemployees appointed notaries public and pay the expense ofappointment, the premiums on the official bond of the notaries, andthe cost of official seals. An employee of the state appointed a notarypublic may do the following:
(1) Take acknowledgments of deeds, contracts, grants, andother documents to or in which the state or a state agency is aparty to or has an interest.
(2) Administer oaths to a person to a document, claim,statement, or other document to be filed with the state or a stateagency.
(b) A notary public appointed under this section may not chargefor the service.
As added by P.L.18-1990, SEC.210.
IC 8-23-2-14
Extension of engineering services and testing facilities to countiesand municipalities; reimbursement
Sec. 14. The department may furnish on request of a county ormunicipality engineering service or consultation and extend thefacilities of the department's testing laboratory for the testing ofhighway construction and maintenance materials or for any otherhighway purpose. When those services are rendered by thedepartment, the county or municipality requesting and receiving theservices shall reimburse the department to the extent of the actualcost of the service including salaries or personal services. Whenpayment is made to the department by the county or municipality, thedepartment shall receipt the payments into the accounts orappropriations from which the expenditures were made by thedepartment in providing those services.
As added by P.L.18-1990, SEC.211.
IC 8-23-2-15
"Highway work zone" defined; use of off duty police officers topatrol highway work zones
Sec. 15. (a) As used in this section, "highway work zone" meansan area where:
(1) highway construction, reconstruction, or maintenance isactually occurring; and
(2) notice is posted in accordance with the:
(A) Indiana Manual on Uniform Traffic Control Devices; or
(B) Indiana Work Site Traffic Control Manual;
to indicate that highway construction, reconstruction, or maintenanceis occurring.
(b) The department may contract with the state police departmentor local law enforcement agencies to hire off duty police officers topatrol highway work zones. The duties of a police officer who ishired under this section: (1) are limited to those duties that the police officer normallyperforms while on active duty; and
(2) do not include the duties of a:
(A) flagman; or
(B) security officer.
(c) The department shall use the money transferred to thedepartment under IC 33-37-9-4(6) to pay the costs of hiring off dutypolice officers to perform the duties described in subsection (b).
(d) All money transferred to the department under IC 33-37-9-4(6)is annually appropriated to pay off duty police officers to perform theduties described in subsection (b).
As added by P.L.64-1992, SEC.1. Amended by P.L.4-1994, SEC.2;P.L.132-2003, SEC.1; P.L.98-2004, SEC.76.
IC 8-23-2-16
Repealed
(Repealed by P.L.35-1995, SEC.5.)
IC 8-23-2-17
Public hearings
Sec. 17. (a) As used in this section, "public hearing" means anassembly or a meeting by the department for the purpose of:
(1) providing information early in the process of makingdecisions affecting proposed highway or bridge construction orimprovement projects on a county arterial highway system orthe state highway system so that the public can have an impacton the decision outcome, including a meeting in which thepublic is provided information, opportunity for review andcomment, and an accounting for the rationale for a proposedproject; or
(2) complying with 23 U.S.C. 128 and 49 U.S.C. 1602(d)requirements in considering economic, social, environmental,and other effects of highway projects and proposals.
(b) Whenever the department holds a public hearing, thedepartment shall allow any person an opportunity to be heard in thepresence of others who are present to testify and in accordance withsubsection (c).
(c) The department, through the commissioner or thecommissioner's designee, may limit testimony at a public hearing toa reasonable time stated at the opening of the public hearing.
As added by P.L.52-1995, SEC.3.
IC 8-23-2-18
Nursery stock and wildflower seed sales
Sec. 18. (a) This section does not apply to the following:
(1) The sale or distribution of nursery stock or wildflower seedsto the following:
(A) An individual who resides in Indiana.
(B) A governmental entity.
(C) A nonprofit organization or an educational institution. (D) An agricultural research program.
(2) The exchange of nursery stock or wildflower seeds with aperson or an entity.
(b) As used in this section, "nursery stock" has the meaning setforth in IC 14-8-2-184(1).
(c) The department may not sell or distribute nursery stock orwildflower seeds to the following:
(1) An individual who resides in a state other than Indiana,unless the individual:
(A) owns land in Indiana; and
(B) submits an affidavit that affirms that the nursery stock orwildflower seeds will be planted in Indiana.
(2) A retail business that sells nursery stock or wildflowerseeds.
(3) A wholesale business that sells nursery stock or wildflowerseeds.
As added by P.L.82-2007, SEC.1.