A federal judge has recommended denying a request to set aside the conviction of former Morgan County Judge-Executive Tim Conley, saying Conley took part in a textbook kickback scheme.
U.S. Magistrate Judge Robert E. Wier rejected Conley’s arguments in a decision filed Thursday. Wier’s recommendation is to U.S. District Judge Gregory F. Van Tatenhove, who will have the final say on Conley’s request.
Federal judges don’t have to adopt recommendations from magistrate judges, but often do.
Wier also recommended that if Van Tatenhove adopts the findings as his own, he not issue a certificate allowing Conley to appeal the decision.
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Conley, 52, pleaded guilty in August 2014 to taking at least $130,000 from a contractor who had bid on jobs such as building bridges for the county.
Conley admitted he solicited kickbacks from the contractor, Kenneth Gambill, in return for rigging bids so that Gambill received work from the county.
Conley opened bids from Gambill and competitors and changed them so that Gambill’s were lowest, then submitted them to magistrates for a vote.
Van Tatenholve sentenced Conley to seven years and three months in prison in January 2015.
Conley agreed not to appeal, but did anyway, arguing he hadn’t fully understood the elements of the mail-fraud charge on which he pleaded guilty.
The U.S. 6th Circuit Court of Appeals denied Conley’s request in June 2015.
Soon after that ruling, a U.S. Supreme Court ruling in a case involving Virginia Gov. Robert McDonnell reduced the scope of acts that can serve as grounds for a corruption prosecution.
Conley appealed his conviction based on that ruling, arguing that the actions he took in the kickback case did not fit the narrower definition of “official acts” under the McDonnell decision.
Judge-executives have no authority to alter bids, which means that what Conley allegedly did can’t be done in an official capacity, according to the motion.
“It follows, therefore, that fraudulently altering a contractor’s bid may never be an ‘official act,’” read Conley’s motion, prepared for him by Louisville attorney Kent Wicker.
Assistant U.S. Attorney Dmitriy Slavin scoffed at Conley’s argument, calling it a “too-criminal-to-punish” argument.
“A criminal law with an implicit exception for criminal behavior would be useless,” Slavin said.
Wier agreed, writing that Conley’s contention that only a valid, legal action can be an official action “would spare from prosecution the worst of public fraudsters.”
“The deceptive, false, or fraudulent public management and contracting practices of officials would avoid scrutiny as occurring outside the “proper” duties of the officials,” Wier wrote.
Conley is serving his sentence at a federal prison in West Virginia. He is scheduled for release in July 2021.