A Franklin circuit judge denied a motion Wednesday by property value administrators to hold the Executive Branch Ethics Commission in contempt for initiating an investigation into nepotism practices of 11 PVAs.
Judge Phillip Shepherd, in a hearing Wednesday in Franklin Circuit Court, said there were still lingering legal questions on whether the ethics commission has the authority to interpret an ethics statute that says it is improper for PVAs to hire spouses, siblings, parents and children. Property value administrators set the value of property for tax purposes and are elected.
"There is a question whether the commission has the authority in regards to the interpretation of the ethics statutes (to bring this investigation)," Shepherd said. "That question will ultimately have to be decided, but not today."
Luke Morgan, a Lexington attorney who represents the 11 PVAs, said he will probably file a motion soon asking for an injunction against the commission so a judge can address the issue of whether the commission has the authority to interpret statutes.
The PVAs are not the only elected officials to challenge the commission's authority. Pike Circuit Judge Eddy Coleman might issue an order soon on whether the commission has authority over commonwealth's attorneys, who have challenged a 2006 ethics commission opinion saying they were subject to ethics commission rules.
The commission voted two weeks ago to start proceedings against the 11 PVAs, saying an initial investigation showed that the PVAs, including Fayette County PVA Renee True, had inappropriately hired or promoted family members.
The PVAs filed a motion in 2007 — while they were being investigated by the ethics commission — asking that subpoenas issued by the commission be quashed. Shepherd denied that motion but in his November 2007 order raised questions about whether the ethics commission had the authority to interpret the ethics statute.
In court documents filed last week, Morgan said the commission had violated Shepherd's November 2007 order and asked that the commission be held in contempt.
Dana Nickels, general counsel for the ethics commission, argued in court documents and during Wednesday's hearing that Shepherd's earlier order never addressed the commission's authority. That issue should be raised during the commission's administrative proceedings against the PVAs, Nickels said.
In court documents, the PVAs have not denied that they hired family members. They have only questioned whether the ethics commission has interpreted the ethics statutes correctly.
The commission contends that a statute that prohibits officials from doing anything that would result in financial gain for a family member means that PVAs cannot hire or promote a family member.
Morgan, during Wednesday's hearing, said the commission has changed its interpretation of the statute depending on who was on the commission. Morgan pointed to a 1999 letter written by then-Executive Director Jill LeMaster, which told a PVA that the commission would not rule on whether the PVA could hire his wife until the General Assembly passed a proposed law regarding nepotism. The legislature never passed the law.
"The law should not change because we had a different commission 10 years ago," Morgan said.
In the commonwealth's attorneys case, Rick Bartley, former president of the Kentucky Commonwealth's Attorney Association and current commonwealth's attorney for Pike County, argued that the ethics commission had also changed its opinion on whether commonwealth's attorneys were subject to the commission's rules.
In 2006, it issued an opinion saying that they were subject to ethics commission rules, reversing a 2003 opinion that said commonwealth's attorneys did not answer to the ethics commission.
Bartley said commonwealth's attorneys aren't included in a statute that outlines who is subject to the commission's rules. The commission, in court documents, says that commonwealth's attorneys are considered management personnel, who are subject to their rules.