FRANKFORT - The governor's chief lawyer said yesterday it was unnecessary for Gov. Ernie Fletcher to be publicly subpoenaed in Louisville last Friday by attorneys for a former state worker who claims he was unjustly fired.
A simple phone call would have sufficed, eliminating the need for the highly unusual step of subpoenaing a sitting governor during a public event, said Jim Deckard, Fletcher's general counsel.
Deckard said two attorneys for former Transportation Cabinet employee Mike Duncan never called him to ask that Fletcher be available to testify at a 9:30 a.m. meeting today of the state Personnel Board or to request that he sit for a deposition.
Deckard also said that members of the media have told him they were contacted before the subpoena was served Friday while Fletcher was in Louisville for a speaking engagement.
"I want to know what their position is and I would appreciate it if they would contact me," Deckard said yesterday in an interview. "They've known about this date since Oct. 4."
Fletcher won't attend today's meeting because he will be "out of state on travel through Wednesday," but the governor will provide the Personnel Board with a rebuttal deposition if a hearing officer deems it necessary, Deckard wrote in a Monday letter to attorney Paul Fauri.
Thomas Clay, another of Duncan's attorneys, said he has a "number of reasons" for not calling Deckard, "but I prefer not to comment on them."
He denied Deckard's inference that the way the subpoena was served was a ploy to attract headlines.
"I didn't contact the media about this," Clay said. "All I've done is respond to media inquiries. This is not a media stunt."
He said the Louisville subpoena was necessary because Fletcher's office had not responded to an earlier subpoena left with a receptionist in the governor's office.
Deckard denies that, saying that deputy general counsel David Fleenor left a message for Fauri Thursday notifying him that the subpoena had been received.
Either way, Deckard said, most attorneys know that Kentucky Civil Rule 32.01(c) allows the governor -- who is named in dozens of lawsuits each year, along with bank tellers, chiropractors, dentists and a host of other professionals -- to submit a deposition instead of appearing at most hearings and trials.
He also said that the subpoena has an appearance date of Dec. 13, 2007.
Although Fletcher will be out of the state at 9:30 this morning, he will be back at the Capitol by 11 a.m., when he is scheduled to make comments at a meeting of the Strategic Committee on Post Secondary Education, Deckard said yesterday.
Clay said he is glad that Deckard has promised cooperation and that he doesn't care how Fletcher provides testimony to the Personnel Board.
Specifically, Clay wants to question Fletcher about allegations included in a June 6, 2005, letter that former Transportation Cabinet Inspector General David Ray sent Fletcher regarding Duncan's dismissal.
In the letter, Ray said he was told by Transportation Cabinet Secretary Bill Nighbert that Duncan's firing was not appealable. After telling Nighbert that he was making a mistake, Ray said in the letter that he was told to never tell Nighbert he was making a mistake
"Whatever you say," Ray responded.
"It's not what I say, but what the Governor says," Nighbert answered.
Duncan's name was one of 32 on a "hit-list" of transportation employees to be demoted or fired, according to documents gathered by a special Franklin County grand jury that investigated the Fletcher administration's hiring practices.
Fletcher was specifically charged by the grand jury with political discrimination in connection with Duncan's firing. The charge was dismissed this summer when Fletcher and Attorney General Greg Stumbo struck a deal to end the investigation.
The administration has argued that Duncan had worked for the cabinet less than six months, so he was still a probationary employee who could be removed for any reason.