PIKE COMMONWEALTH ATTORNEY SUES FOR DECLARATION OF RIGHTS CONCERNING EXECUTIVE BRANCH ETHICS COMMISSION ASSUMPTION OF AUTHORITY OVER PROSECUTORS

Commonwealth Attorneys are fighting the attempt of the Executive Branch Ethics Commission to enlarge their jurisdiction to review the conduct of prosecutors.

LawReader Senior Editor Stan Billingsley – Oct. 29, 2007

Rickey L. Bartley, the Commonwealth Attorney for 35th. Judicial Circuit (Pike County) has filed a declaratory judgment action to seek a determination of the authority of the Executive Branch Ethics Commission (EBEC) to regulate the ethical conduct of Commonwealth Attorneys by applying the Executive Branch Code of Ethics.

In  Advisory Opinion 06-03 –  an opinion issued by the EBEC in April of 2006, the EBEC determined that they now have jurisdiction to regulate the ethical conduct of Commonwealth Attorneys by application of the Executive Branch Code of Ethics.

In  that Advisory Opinion the EBEC reasoned that their statutory authority found in KRS Chapter 11A covered Commonwealth Attorneys since they were “state officers? and that County Attorney were not subject to regulation by EBEC since they were “county officials? and counties had their own ethics review procedures.

In l993 the EBEC had issued an Advisory Opinion 93-7 which held that the EBEC did not have jurisdiction over Commonwealth Attorneys via the Executive Branch Code of Ethics.  Therefore the Opinion 06-03 overrules Opinion 93-7. 

In Advisory Opinion 93-7 issued in April of l997, the EBEC held that :

“In most of their duties, they are not accountable to the executive branch of state government. Therefore, it is our opinion that commonwealth’s and county attorneys are not subject to KRS Chapter 11A’s prohibitions against holding state contracts.?
 

Bartley joined all other Kentucky Commonwealth Attorneys as defendants in his lawsuit so that any ruling would protect their interests.

Bartley states in his complaint that the ruling in Opinion 06-03 conflicts with the ruling in 93-7 and conflicts with an opinion of the Attorney General issued November 28, 2005 the Attorney General Opinion 05-009 (see below) held that Chapter 11A and the Executive Branch Code of Ethics did not apply to Commonwealth and County Attorneys.

The five members of the Executive Branch Ethics Commission are appointed by the

Governor.  All five current members were appointed or reappointed by Gov. Ernie Fletcher. 

The Commission has recently instigated an investigation of an anonymous complaint filed against the Attorney General Greg Stumbo, in which it is alleged that he and two of his deputies may have violated the Executive Branch Code of Ethics by investigation Governor Ernie Fletcher for Merit System violations.

Previously this year, the EBEC issued a warning letter to the Attorney General that it would be a conflict of interest for him to participate in an investigation of Governor Fletcher at a time the Attorney General was himself a candidate for Governor in the Democratic Primary.   General Stumbo agreed to withdraw from direct participation in the Merit System investigation.  The Commission indicated that the basis for their letter to the Attorney General was based on the reasoning that the Executive Branch Code of Ethics forbade any state officer from using his office to incur a “private benefit?.

LawReader has previously noted that there is no statutory definition of the term “private benefit? as stated in the Code of Ethics, and no court has every ruled that running for office is a “private benefit? in violation of the Ethics Code.   The definition apparently being advanced by the EBEC is that “private benefit? is broad enough to cover the winning of an election.  Such a definition would mean that no state officer could ever rule on any issue if it involved someone whom the officer might run against in the future.

That definition would also allow a person being prosecuted by the Attorney General or a Commonwealth Attorney to have to withdraw from a prosecution if the subject of the prosecution merely filed for office to run against the prosecutor.  

Prosecutors are subject to KRS Chapter l5.733 which sets out procedures for the creation of  The Prosecutors Advisory Council. In that statute the council and the Attorney General are given the duties of monitoring conflicts of interest by prosecutors.  Further all prosecutors are licensed lawyers and are subject to the Rules of Conduct for Attorneys which are investigated and sanctioned by the Kentucky Bar Association.

One provision of Chapter 11A exempts any officials who have their own legislatively mandated Code of Ethics.  All prosecutors are by law subject to the Supreme Court Rules regarding the conduct of all attorneys.

See: KRS 11A.015 Agency exempt from chapter if law or administrative regulation creates its code of ethics.
An agency that is directed by statute to adopt a code of ethics shall be exempt from KRS Chapter 11A upon the effective date of an Act of the General Assembly creating the agency’s code of ethics or upon the effective date of an administrative regulation that creates the agency’s code of ethics.
  The EBEC advisory opinions do not explain how KRS 11A.015 does not apply to prosecutors including the Attorney General.

The Bartley lawsuit says that the EBEC, is :

“…Attempting to rewrite the statute which must be done by a legislative body not a legislatively created agency.? 

The lawsuit points out that:

“…KRS Chapter 11A …does not list Commonwealth’s Attorneys as covered entities.?

“The Commission is attempting to enlarge the scope of its function beyond the specific language of KRS 11A contrary to law.?

Barley requests that the reviewing court:

 “…declare that Executive Branch Ethics Commission Advisory Opinion 06-03 be declared void and that the Executive Branch Ethics Commission be estopped and restrained from enforcing it…?.

The following Attorney General’s Opinion does not have the force of law inherent in a statute of a court decision, but it is equal in status with an Advisory Opinion of the Executive Branch Ethics Commission.

See OAG 05-009:

OAG 05-009
 

November 28, 2005

Subject:                       Whether Commonwealth’s Attorneys are covered by the provisions of KRS 11A

Requested by:              Hon. Linda Tally Smith, Commonwealth’s Attorney, 54th Judicial Circuit, President of the Commonwealth’s Attorneys Association

Written by:                  Janet M. Graham

                                    Assistant Deputy Attorney General

Syllabus:                      Commonwealth’s Attorneys are not covered by the provisions of KRS 11A.

Statutes construed:     KRS 11A et seq.

Opinion of the Attorney General
In 1993, the Executive Branch Ethics Commission (the “Commission?) issued Advisory Opinion 93-7 that held that Commonwealth’s Attorneys are not subject to the provisions of KRS 11A.  In this opinion, the Commission stated, “[A]s elected officials under the state constitution, neither Commonwealth nor County Attorneys are deemed employees or public servants of the executive branch.?

In the spring of 2005, the Commission gave notice that it proposed to reverse this prior opinion and adopt draft Ethics Advisory Opinion 05-03.  This draft advisory opinion states that Commonwealth’s Attorneys are subject to the provisions of KRS Chapter 11A.  A group of Commonwealth’s Attorneys met with the Commission staff and the full Commission to discuss the issues surrounding the reversal of the prior opinion. On March 29, 2005, Commonwealth’s Attorney Linda Tally Smith requested an Attorney General’s opinion regarding the following two questions:

1.      Whether Commonwealth’s Attorneys are Executive Branch employees that should be subject to the provisions of KRS Chapter 11A; and

2.      Whether the jurisdiction of the Executive Branch Ethics Commission extends to entities such as Commonwealth’s Attorneys that are not specifically named in KRS Chapter 11A.

During the meeting with the full Commission, the Commission members expressed an interest in receiving the Attorney General’s opinion on these issues prior to final agency action on this matter. 
 

In order to answer both of the questions posed, it is necessary to determine the General Assembly’s intent regarding whether Commonwealth’s Attorneys are covered by the provisions of KRS 11A.  Determining the legislative intent involves an examination of applicable statutes in conjunction with applying traditional rules of statutory construction.  

The requirements of KRS 11A are imposed upon “officers? and “public servants? in the executive branch of state government.[1]  KRS 11A.010 provides an exhaustive list of who are considered officers and public servants.  Nowhere are Commonwealth’s Attorneys mentioned.  If the General Assembly meant to include Commonwealth’s Attorneys in this list of covered officers, it clearly could have done so.  The fact that it did not evidences an intent that Commonwealth’s Attorneys are not covered. 

There is a longstanding rule of statutory construction that provides that the enumeration of particular items excludes other items that are not specifically mentioned.  See Commonwealth of Kentucky Board of Claims v. Harris, 59 S.W.3d 896 (Ky. 2001).  According to Kentucky’s highest court, “Logic and experience developed the maxim expressio unius est exclusion alterius,–‘The enumeration of particular things excludes the idea of something else not mentioned.’ This is a primary rule of statutory construction.?  Bloemer v. Turner, 137 S.W.2d 387, 390 (Ky. 1939) quoting Hughes v. Wallace, 118 S.W. 324 (Ky. 1909).  By specifically naming a long list of persons who are covered by 11A but excluding Commonwealth’s Attorneys from this list, the General Assembly clearly did not intend these provisions to apply to Commonwealth’s Attorneys.

Moreover, by attempting to include Commonwealth’s Attorneys under KRS 11A.010, the Commission would, in effect, have to rewrite the statute to include them.  This is something not even a Court is empowered to do.  A Court “is not at liberty to add or subtract from the legislative enactment nor discover meaning not reasonably ascertainable from the language used.?  City of Covington v. Kenton County, 149 S.W.3d 358 (Ky. 2004) (emphasis added).  The statute is plain on its face and does not list Commonwealth’s Attorneys as covered entities under the statute. 

Also, the addition of language to a statute is particularly improper if it expands the power of an administrative agency.  The Executive Branch Ethics Commission is an administrative agency with certain enumerated powers. As with any administrative agency, the legislature has delegated discrete and specific powers to the Commission and has withheld powers that it did not wish to delegate. An administrative agency cannot amend, alter or enlarge the terms of a legislative enactment. See Roppel v. Shearer, 321 S.W.2d 36 (Ky. 1959).  By attempting to cover Commonwealth’s Attorneys within the Executive Branch Ethics Code, the Commission would be attempting to enlarge the scope of its enabling statute.

There is longstanding authority in Kentucky that courts will strictly construe the authority granted to administrative agencies as expressed in their enabling statutes.  “Administrative agencies are creatures of statute, and as such the statute must warrant any exercise of authority which they claim.?  Curtis v. Belden Electronic Wire & Cable, 760 S.W.2d 97, 99 (Ky. App. 1988).   “Any doubts concerning the existence or extent of an administrative agency’s power should be resolved against the agency.?  United Sign, Ltd. v. Commonwealth, 44 S.W.3d 794, 798 (Ky. App. 2000). 

In Custard Insurance Adjusters v. Aldridge, 57 S.W. 3d 284 (Ky. 2001), the Kentucky Supreme Court adjudicated a case involving the jurisdiction of another administrative agency, the Department of Workers Claims.  The question presented to the Court was whether the Department of Workers Claims properly exercised jurisdiction in a case involving a resident of Indiana that was injured while working in Kentucky. Id. at 285-286.  In holding that the Department did not have jurisdiction, the Court noted, “The jurisdiction of an administrative agency extends only to those matters that are delegated to it by the legislature.?  Id. at 287.

Moreover, another factor weighing against KRS 11A’s application to Commonwealth’s Attorneys is the fact that the legislature provided for specific direction regarding conflicts of interest and ethical considerations in KRS Chapter 15.  In contrast, the more general provisions in KRS 11A, which relate to all executive branch employees, are inapplicable to the specific prosecutorial duties of Commonwealth’s Attorneys.  It is a longstanding rule of statutory construction that “[a] specific statute controls over a more general statute.?  Commonwealth Board of Examiners of Psychology v. Funk, 84 S.W.3d 92 (Ky. 2002).

 When it enacted KRS 15.700 et seq., the General Assembly built safeguards into the prosecutorial system both in its administrative framework and its specific statutes directed toward conflict of interest situations.  KRS Chapter 15 establishes the Unified Prosecutorial System (“UPS?), comprised of independently elected Commonwealth’s Attorneys and County Attorneys and their staffs. The administration of the UPS system is handled by the Prosecutors Advisory Council and its staff.  KRS 15.705.  The Prosecutors Advisory Council consists of nine members, eight of whom are appointed by the Governor.  The members are: the Attorney General, three (3) Commonwealth’s Attorneys, three (3) County Attorneys and two (2) citizen members.  KRS 15.705 (2).  The Attorney General serves as Chairman of the Council and is denominated the “chief prosecutor? of the Commonwealth. The Unified Prosecutorial System was created “to encourage cooperation among law enforcement offices and to provide for the general supervision of criminal justice throughout the Commonwealth.?  KRS 15.700. 

In addition to the protections created by the involvement of the Prosecutors Advisory Council and the Attorney General, the General Assembly also enacted a detailed and intricate system to deal with potential conflicts of interest that may confront prosecutors in their handling of criminal cases. Specifically, KRS 15 provides detailed guidelines on how prosecutors, the Prosecutors Advisory Council and the Attorney General are to address these ethical issues.  First, KRS 15.733 provides a series of criteria that mandate when a prosecutor must disqualify himself/herself from prosecuting a case on the basis of a conflict of interest.[2]  Among these mandatory disqualifications are when the prosecutor, his spouse or his immediate family has a financial interest in the proceeding, is an officer, director or trustee of a party to the proceeding or has an interest that could be substantially affected.  If the prosecutor is disqualified, the Attorney General appoints a special prosecutor to handle the proceeding.  KRS 15.733(4).  Additionally, if the prosecutor fails to disqualify himself, there is still another safeguard built into the statutory scheme.  If the Prosecutors Advisory Council believes that a prosecutor has a conflict of interest, the Council may itself disqualify the prosecutor and authorize the Attorney General to supersede him for the purpose of prosecuting criminal cases.  KRS 15.715(1).[3].
  In addition to the powers denominated above, the Prosecutors Advisory Council has the power to hold hearings on any matters within its jurisdiction, including any prosecutorial ethics issues that it chooses to address.  KRS 15.707 grants the Council the authority to issue subpoenas and require the attendance of witnesses and the production of such records for investigation of any matter reasonably necessary.  The subpoenas may be signed and oaths administered by any member of the Council.  KRS 15.707.[4]  Thus, KRS 15 contains specific statutory directives regarding ethical consideration related to prosecutorial practice. 

For the reasons outlined above, Commonwealth’s Attorneys are not subject to the provisions of KRS 11A or the jurisdiction of the Executive Branch Ethics Commission.

                                                            Gregory D. Stumbo

                                                            Attorney General

                                                            Janet M. Graham

                                                            Assistant Deputy Attorney General       

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[1]. 11A.010 (7) “Officer” means all major management personnel in the executive branch of state government, including the secretary of the cabinet, the Governor’s chief executive officers, cabinet secretaries, deputy cabinet secretaries, general counsels, commissioners, deputy commissioners, principal assistants, division directors, members and full-time chief administrative officers of the Parole Board, Board of Tax Appeals, Board of Claims, Kentucky Retirement Systems board of trustees, Public Service Commission, Worker’s Compensation Board and its administrative law judges, the Occupational Safety and Health Review Commission, the Kentucky Board of Education, the Council on Postsecondary Education, and any person who holds a personal service contract to perform on a full-time basis for a period of time not less than six (6) months a function of any position listed in this subsection; 11A.010 (9) “Public servant” means:
(a) The Governor;
(b) The Lieutenant Governor;
(c) The Secretary of State;
(d) The Attorney General;
(e) The Treasurer;
(f) The Commissioner of Agriculture;
(g) The Auditor of Public Accounts; and
(h) All employees in the executive branch including officers as defined in subsection (7) of this section and merit employees;
  

[2]. § 15.733 Disqualification of prosecuting attorney — Appointment of a special prosecutor.
(1) For the purposes of this section the following words or phrases shall have the meaning indicated:
(a) “Proceeding” includes pretrial, trial, appellate review, or other stages of litigation;
(b) “Fiduciary” includes such relationships as executor, administrator, conservator, trustee, and guardian;
(c) “Financial interest” means ownership of a legal or equitable interest, however small, or a relationship as director, adviser, or other active participant in the affairs of a party, except that:
1. Ownership in a mutual or common investment fund that holds securities, or a proprietary interest of a policyholder in a mutual insurance company, of a depositor in a mutual savings association, or a similar proprietary interest, or ownership of government securities is a “financial interest” only if the outcome of the proceeding could substantially affect the value of the interest;
2. An office in an educational, religious, charitable, fraternal, or civil organization is not a “financial interest” in securities held by the organization. 
(2) Any prosecuting attorney shall disqualify himself in any proceeding in which he or his spouse, or a member of his immediate family either individually or as a fiduciary:
(a) Is a party to the proceeding, or an officer, director, or trustee of a party;
(b) Is acting as a lawyer in the proceeding;
(c) Is known by the prosecuting attorney to have an interest that could be substantially affected by the outcome of the proceeding;
(d) Is to the prosecuting attorney’s knowledge likely to be a material witness in the proceeding;
(e) Has served in private practice or government service, other than as a prosecuting attorney, as a lawyer or rendered a legal opinion in the matter in controversy;
(f) Has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding.
(3) Any prosecuting attorney may be disqualified by the court in which the proceeding is presently pending, upon a showing of actual prejudice.
(4) In the event that a prosecuting attorney is disqualified, he shall certify such fact in writing to the Attorney General who may direct another Commonwealth’s attorney or county attorney or an assistant attorney general as a special prosecutor to represent the Commonwealth in that proceeding.
[3]. 15.715 Intervention in criminal prosecutions by Attorney General — Prosecution of complaint against local prosecutor — Performance of duties of local prosecutor until vacancy filled.
(1) In the event of the incapacity, refusal without sufficient grounds, inability, conflict of interest of the local prosecutor, or his failure to act in a certain case or cases, the council may authorize, by the vote of no less than five (5) of its members, the Attorney General to initiate, intervene, or supersede a local prosecutor for the purpose of prosecuting the criminal business in question of the Commonwealth in that circuit or district after due notice having been given to the local prosecutor.
(2) When the Attorney General shall proceed under subsection (1) of this section, he shall petition the Circuit Court of that circuit to disqualify the county attorney or Commonwealth’s attorney for good cause shown, when the county attorney or Commonwealth’s attorney refuses to disqualify himself. The action of the Circuit Court shall be subject to review according to the Rules of the Supreme Court.
(3) If the Attorney General’s petition to disqualify the local prosecutor was sustained by the Circuit Court, the Attorney General shall file and prosecute a complaint against the local prosecutor pursuant to KRS 61.120.
[4]. 15.707 Subpoena power of Prosecutors Advisory Council.
The Prosecutors Advisory Council shall have the power to issue subpoenas requiring the attendance of such witnesses and the production of such records, books, papers, and documents as it may deem necessary for investigation of any matter that it is authorized to consider or reasonably necessary therefor. Subpoenas may be signed and oaths administered by any member of the council. Subpoenas so issued shall be served by any sheriff, constable, police officer, or other peace officer at the request of the council, and a return of subpoena shall be made to the council in the same manner as similar process in the Circuit Court. Any person who refuses to testify, testifies falsely, or fails to appear when subpoenaed, or fails or refuses to produce documents, records, or other such material when subpoenaed, or fails or refuses to serve a subpoena or execute a return thereon, upon citation by the Franklin Circuit Court and after hearing by the court, shall be subject to the same order and penalties to which persons before that court are subject. Any Circuit Court, upon application of the council or the Attorney General, may compel the attendance of witnesses, the production of documents, records, or other such material, and the giving of testimony before the council.  (Enact. Acts 1990, ch. 419, § 3, effective April 10, 1990.)
  

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