Politics & Government

Nighbert claims sole responsibility for firing Duncan

FRANKFORT - Gov. Ernie Fletcher had nothing to do with the firing of a Transportation Cabinet employee whose name was on a now-infamous "hit list" of state workers targeted for personnel action, Transportation Secretary Bill Nighbert testified yesterday.

Nighbert told a hearing officer for the state Personnel Board that he alone made the decision to fire Michael Duncan, the cabinet's chief deputy inspector general, because he was unhappy with his work, not because Duncan was a Democrat who had previously donated money and worked for Fletcher's 2003 gubernatorial opponent Ben Chandler.

"I never had a discussion with the governor, not only about Mr. Duncan, but any other merit employee," Nighbert said.

Duncan's May 13, 2005, dismissal eventually led a special grand jury to indict Fletcher in the spring on a misdemeanor charge of political discrimination. That indictment and two others against Fletcher were later dismissed when Fletcher and Attorney General Greg Stumbo struck a deal to end the 18-month investigation.

The grand jury also indicted Nighbert and at least 13 others, but Fletcher pardoned everyone involved but himself.

Duncan's name was one of 32 on the hit list, which included information about the political affiliation and campaign contributions of both merit and non-merit employees. State laws prohibit the firing of merit workers based on political considerations.

Contradictory testimony

Nighbert's testimony contradicted what Dan Druen, the cabinet's former commissioner of administrative services, previously told investigators with the attorney general's office. In August 2005, Druen told investigators he handed Fletcher the hit list in a May 2005 meeting, but that Fletcher then handed it to his former personnel and efficiency director, Basil Turbyfill, without looking at it.

Nighbert said yesterday that the hit list was not given to the governor at that meeting and that personnel decisions were not discussed. Instead, Nighbert said that he, Druen, and Deputy Secretary Jim Adams presented the list to Turbyfill alone during a meeting at Turbyfill's Capitol office. He could not recall the date of the meeting and said he had no knowledge that would indicate Turbyfill planned to give the list to the governor.

"He (Turbyfill) flipped over it and told me to do what I felt like I had to do," Nighbert said.

Nighbert's testimony also contradicted a June 2005 letter sent to Fletcher by Duncan's former boss that suggested Fletcher had ordered Duncan's firing. David Ray, who remains the cabinet's inspector general, said in the letter that Nighbert had told him the decision to fire Duncan was not appealable because "it's not what I say, but what the governor says."

Yesterday, Nighbert said he told Ray only that the firing was "non-negotiable" and that "I work for the governor and you work for me. You need to understand who you work for."

Although Duncan was on the hit list, Nighbert said he didn't need to be told that Duncan was a Democrat who had worked for Chandler. But having that knowledge played no role in the firing, Nighbert said.

Reasons for firing

Instead, he said he took four things into consideration when firing Duncan:

 Duncan had recommended against disciplining a number of low-level employees who had broken the cabinet's policies regarding costly changes to road contracts. Nighbert wanted to discipline several employees named in an investigation that Duncan and others in the inspector general's office were conducting, but Duncan said he felt like the workers were only following the orders of their superiors.

 Duncan was partially responsible for not producing the investigative report about changes to road contracts as quickly as Nighbert wanted.

 Duncan had an extramarital affair with a subordinate in 1999 when he was director of then-Attorney General Ben Chandler's special investigations division. While not a primary reason for firing Duncan, Nighbert said the affair "was in the back of my mind" and caused him to question Duncan's judgment.

 Duncan had not satisfactorily followed up on a previous investigation conducted by the attorney general's office regarding prescription drug abuse in Williamsburg at a time when Nighbert was mayor of the city.

"I didn't think that he was going to be someone that I could trust to bring the proper recommendations or do the proper investigations," Nighbert said.

Duncan's response

Duncan acknowledged having the affair with a subordinate during a period of separation from his wife, but said it was irrelevant to his performance at the cabinet.

"The person who suffered over that more than anybody else was me and my family," he said.

The incident resulted in a verbal reprimand by his superior at the time, John Cubine.

Duncan testified that Nighbert and other individuals had never indicated to him that the investigative report in question was not being produced fast enough.

The lead investigator on the report, Chuck Hines, provided similar testimony, saying the only thing that might have slowed the report was numerous requests for revisions by high-ranking officials in the cabinet and Fletcher's office, including Chief of Staff Stan Cave and then-General Counsel John Roach.

At one point, Duncan said, administration officials attempted to rewrite the report's opening paragraph in a way that "made it sound political."

"It read like a press release for Fletcher," he said. "It was totally unacceptable."

Duncan's attorneys closed their case yesterday without seeking the testimony of Fletcher, who they had previously subpoenaed.

Both sides still must issue closing briefs, and the personnel board is expected to decide the issue early next year.

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