Some jabs at ethics commission inaccurate, unfair

May 4, 2014 

  • At issue: April 20 Herald-Leader editorial, "Need action not talk on ethics; Reform legislative commission in wake of botched arnold hearing;" April 20 Larry Dale Keeling column, "Kicking butt and keeping panties off the table"

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The Herald-Leader delivered some strong jabs at the Kentucky Legislative Ethics Commission in its editorial and in Larry Dale Keeling's column. Some of the jabs were well taken, but a few were below the belt.

The editorial observed that in 1992 (actually 1993) the General Assembly "passed meaningful ethics legislation creating the Ethics Commission" but that legislators began to chafe under actual supervision and began "tinkering with the laws" in a manner so appalling that several commissioners resigned in protest.

The primary reason for their resignations was that the changes deprived the commission of its ability to initiate investigations without anyone filing a complaint. The then-executive director acknowledged that even though the new law permitted any citizen to file a complaint, he lamented they rarely did so. So it was crucial that the commission itself be able to launch investigations.

He went on to note that it would violate due process if a commission member filed a complaint because that would be like "having a judge file a lawsuit and then decide the case." It apparently did not occur to him that this was even more the case when the entire commission initiated the investigation, brought charges, and proceeded to adjudicate them.

The change in the law did not actually diminish the power of the commission. In the three years before the 1996 changes, the commission dealt with 20 cases. In the three years after the changes, it dealt with 24.

In the first three years it imposed a total of $250 in fines. In the second three years, it imposed $7,900 in fines. In the first three years, no formal action was taken against lobbyists or their employers. In the second three years, lobbying rights were suspended for five years in one case and two years in three other cases.

I became executive director in late 1997. From my conversations with legislators and staff, it was evident that many believed the commission had used its authority to launch investigations without the necessity of a complaint being filed, as one stated, "more for publicity than for the public good."

I also learned that the method of appointment of commission members was changed in 1996 primarily because of concern that it might violate Section 28 of the Kentucky Constitution, which has been strictly interpreted to prevent one branch of government from exercising the power of another. Because the commission is part of the legislative branch, there was concern that members of another branch could not legally participate in naming commission members.

For this same reason, the editorial's suggestion about allowing the governor or the chief justice to appoint members of the commission would no more pass constitutional muster than a law requiring the speaker of the House to be chosen from a list of three names submitted by the governor.

Incidentally, the editorial writer was apparently unaware that the Ethics Code severely restricts political activity commissioners. They may not serve as officers of any political party or as a fundraiser, or contribute to any candidate for governor, lieutenant governor, attorney general, auditor or the General Assembly. Also, they may not participate in the management or conduct of the political campaign for any state, district, county or municipal office.

As to Keeling's jab concerning the commission's "botched handling" of the complaints against former Rep. John Arnold, I can only say that Keeling, normally an astute journalist, wrote from ignorance of the facts. In this, he is not unlike every other person who has opined on this case, since to date, not one of them has bothered to look at the actual record, which is open to the public.

A review of the facts might be in order since the handling of these cases was thorough and far from clumsy. It was fraught with legal challenges, as well as a pressing need to bring it to a timely conclusion.

The complaints were filed Aug. 16 and 22, 2013, after the complainants spoke with commission staff. They stated they had not been able to obtain any relief from their situation from the legislative branch.

The immediate legal question raised was whether the commission had jurisdiction to adjudicate the issues or whether the alleged conduct fell exclusively within the authority of the House "to punish a member for disorderly behavior" under Section 39 of the Kentucky constitution. The commission decided, after the question was thoroughly researched and discussed, that it did have jurisdiction and proceeded to launch an intensive investigation.

In September, while the investigation was ongoing, Arnold resigned from the House, raising a new legal question as to whether the commission had jurisdiction over someone no longer a member of the legislature. After more research, the commission decided it did, and proceeded to have a preliminary hearing on Oct. 15, which found probable cause to believe Arnold had violated the ethics code.

The commission set an adjudicatory hearing to find innocence or guilt, and to impose punishment if guilt was found. That hearing was set for Dec. 12, 2013, but had to be continued on motion by Arnold's attorney so he could obtain medical evidence concerning Arnold's mental status at the time of the alleged offenses and his ability to participate at trial. The hearing was continued to Feb. 25, 2014.

Before that date, two of the complainants wrote the commission, thanking it for "taking the time to seriously consider and investigate" their complaints, but urging the commission not to delay the hearing beyond Feb, 25 because they were suffering both physically and mentally — including heart-attack symptoms, sleepless nights and strained relationships in their employment — while the case was pending.

Next, an attorney acting for the speaker of the House and "similarly situated members," requested that the hearing be continued until after adjournment of the legislature on April 15, because attendance by subpoenaed legislators and staff would "impede the ability of lawmakers to conduct the business they were elected to perform."

That request also noted the "immediate needs of the complainants are being addressed in the current court action." This same attorney simultaneously filed pleadings in the Franklin Circuit Court, seeking to quash the subpoenas issued by the commission to legislators and Legislative Research Commission staff.

Then came a motion by Arnold's attorney for a further continuance to secure necessary medical evidence and diagnosis. In a pre-trial conference, it was shown that the motion was made in good faith and supported by facts.

Since the medical proof could not be completed until sometime in March, the chairman set the adjudicatory hearing for April 8. This was done to accommodate both the requests of the complainants and those of members of the legislature.

As it turned out, only five commission members were able to attend the hearing, but that number does constitute a quorum for conducting business. The complainants and their attorneys, present at the meeting, and the attorney for Arnold made no objections to proceeding.

While four members voted to find Arnold in violation and impose sanctions, a new member of the commission, an attorney, found persuasive the legal arguments of Arnold's attorney that the commission had no jurisdiction in the matter.

For that reason, he voted "no." Since five affirmative votes are "necessary for commission action," no action could be taken on the question of Arnold's guilt or punishment at that hearing. Also, no action was taken to dismiss the charges.

In sum, it appears that in Keeling's opinion, the handling of a case is "botched" when, in spite of careful investigation, legal research, an able presentation, and a full airing of the facts in public, the result favored by him does not occur at the time he wants it to occur.

As a follow-up column, it might be interesting to explore all of the prosecutions which were ably and professionally done, but which were actually "botched" because they resulted in hung juries.

Anthony Wilhoit, former chief judge of the Kentucky Court of Appeals, is executive director of the Kentucky Legislative Ethics Commission.

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