NEW CASTLE ATTORNEY JOHN M. BERRY JR. AND ACLU HAVE SUED REED N. MOORE JR IN HIS CAPACITY AS CHAIRMAN OF KBA INQUIRY COMMISSION. The Federal lawsuit alleges the KBA Inquiry Commission violated Berry’s Constitutional Rights to Criticize Actions of the Legislative Ethics Commission

 The Law Behind the News by LawReader Senior Editor Stan Billingsley

   On Aug 14, 2007 the Legislative Ethics Commission conducted an inquiry regarding a complaint filed against Sen. David Williams by Richard Beliles Chairman of Kentucky Common Cause.  It was alleged that a letter sent out to lobbyists was in violation of Legislative Ethics Rules which prohibit a member of the Legislature from soliciting campaign donations from lobbyists.

KRS 6.767 Prohibition against acceptance of campaign contributions from legislative agents — Penalty. “A member of the General Assembly, candidate for the General Assembly, or his campaign committee shall not accept a campaign contribution from a legislative agent.
Violation of this provision is ethical misconduct.”

The Courier Journal reported at the time:

 ”the commission investigation found that Williams invited 237 people to the lunch, 66 of whom were registered lobbyists.

 Its order does not say how many people actually attended the lunch, at which Williams was the main speaker. But the order says about half were lobbyists.

The commission’s order said Williams testified that he never saw the commitment form before the lunch and that “he had never solicited a lobbyist to do anything.”

The order said Williams told the commission that the forms were given to lobbyists at the lunch so “they could inform people that we’re having this (fundraiser) and deliver information to their clients.”

 Distribution of the form, coupled with some of Williams’ remarks at the lunch, “led some lobbyists in attendance to conclude that they were being asked to raise funds.”
 But the commission order said, “There was credible testimony that Senator Williams did not specifically ask lobbyists to do so.” ”

Tom Loftus  wrote in  The Courier-Journal   Aug. 30, 2007
FRANKFORT, Ky. — Senate President David Williams was cleared yesterday of an allegation of improperly soliciting lobbyists to help raise money for Senate Republican candidates.
 In a nine-page order that was approved unanimously, the Kentucky Legislative Ethics Commission said “there is not probable cause to believe that Senator Williams intentionally violated the Code of Legislative Ethics.”

 Williams, a Burkesville Republican, said in a statement that he was pleased to be “cleared of any violation … by unanimous vote.”

The Courier-Journal reported two days after the event that lobbyists and others were given a “commitment form,” asking them to pledge to give or raise as much as $50,000 for two committees that help pay for the campaigns of Republican Senate candidates.

“Legislators are banned by the ethics code from asking lobbyists to help raise money for such committees. But the commission’s order blamed the solicitation form on Williams’staffers who helped plan the lunch.”

John Berry,  Richard Beliles Chairman of Common Cause, members of the media and other persons appeared for the Aug 14, 2007 hearing, but were excluded from the hearing  before the hearing went into session although  Sen. David Williams was allowed to remain in the inquiry proceeding of the  Legislative Ethics Commission.

KRS 6.691 calls for public hearings of the Legislative Ethics Commission.

KRS 6.691 Adjudicatory proceedings — Action by commission — Appeal. 

(3) All adjudicatory proceedings of the commission carried out pursuant to the provisions of this section shall be public, unless the members vote to go into executive session in accordance with KRS 61.810 …  (KRS 561.180 relates to – Exceptions to open meetings.)

 The foregong statute governs “adjudicatory proceedings” and is subsequent to the “PRELIMINARY” hearing also referred to as a “grand jury” like hearing.  The statute does not mention a procedure for “a closed hearing” at the preliminary phase.  A party against whom a complaint is filed made attend the preliminary hearing with his attoney.

 KRS 6.686 (2) says that: “All commission proceedings, including the complaint and answer and other records relating to a preliminary inquiry, shall be confidential until a final determination is made by the commission,…” 

 If the hearing complained of by Berry and the ACLU was a preliminary hearing, it is unexplained how the public would have known about the date, time, place and purpose of the hearing unless the confidentiality had been waived.

While the accused party is allowed to attend the “preliminary” hearing, he is clearly forbidden from attending a closed or executive session at any adjudicatory proceeding.  The definition of “adjudicatory hearing” would appear to apply to any hearing in which an adjudication is made….it is unclear if this includes a finding at the preliminary phase.

On Oct. 5, 2007 Berry wrote a letter to the LEC Chairman and criticized the decision reached and the method in which the proceeding was conducted.

Berry’s letter was placed on the LEC agenda for discussion on Oct. 5, 2007.  Berry attended this hearing where his letter was discussed.

Subsequently Berry was notified On Nov. 9, 2007 by the Inquiry Commission that he was under investigation for “professional misconduct for disseminating his Oct. 5, 2007 letter”.

The Inquiry Commission charged that Berry’s letter contained” incorrect and misleading statements in violation of SCR 3.130.8.2(a)”.

We have not viewed the Berry letter, and unless he wins this Federal lawsuit, no one else is likely to see this letter. 

Berry was advised that the distribution of his letter was being investigated as “unprofessional conduct”.

We have been unable to find any statute or rule which specifically prevents a person who is not a party to an ethics investigation by the Legislative Ethics Commission from writing a letter.

Some l6 months later, the Inquiry Commission On March 16, 2009 notified Berry that his letter violated SCR 3.130 8.2(a) by “publically implying that the LEC did not conduct its review appropriately”.  The final action by the Inquiry Commission (a Warning Letter)  did not mention the original claim regarding dissemination of the letter, it only stateed that it concerned the allegation of Berry that the LEC had  ”publically imply(ed)…that the LEC did not conduct its review appropriately”. 

 The ethical rule Berry is alleged to have violated is:

“ SCR 3.130(8.2) Judicial and legal officials

 (a) A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office.

(b) A lawyer who is a candidate for judicial office shall comply with the applicable provisions of the Code of Judicial Conduct.

HISTORY: Adopted by Order 89-1, eff. 1-1-90

COMMENTARY

Supreme Court 1989:

[1] Assessments by lawyers are relied on in evaluating the professional or personal fitness of persons being considered for election or appointment to judicial office and to public legal offices, such as attorney general, prosecuting attorney and public defender. Expressing honest and candid opinions on such matters contributes to improving the administration of justice. Conversely, false statements by a lawyer can unfairly undermine public confidence in the administration of justice.

[2] When a lawyer seeks judicial office, the lawyer should be bound by applicable limitations on political activity.

[3] To maintain the fair and independent administration of justice, lawyers are encouraged to continue traditional efforts to defend judges and courts unjustly criticized”

The Courier Journal article did not report any supporting information being provided by the KBA to support their claim that Berry’s statements critical of the LEC were “false or with reckless disregard as to its truth or falsity” as required by SCR 3.130 8.2(a).

News reports have attributed the complaint against Berry as having been advanced by former Court of Appeals Judge Paul Gudgel of Lexington, a member of the LEC.  Gudgel did not respond to a reporter’s questions.

After the Inquiry Commission issued the warning letter to Berry, they dismissed further action.

Berry’s complaint alleges that the Discipline letter remains in Berry’s file, and can be used to enhance any future complaints of unethical conduct that may be charged against him, and should be withdrawn.

The KBA Inquiry Commission letter warned Berry not to further distribute his letter.

The Federal complaint contends that the action of the Inquiry Commission violates his free speech rights and “furthers no compelling governmental interest nor is it tailored to serve a governmental interest”.

Berry seeks a restraining order holding SCR 3.130 8.2(a) as applied unconstitutional.

He seeks a restraining order against the Inquiry Commission from seeking further enforcement of SCR 3.130 8.2(a).   He also seeks nominal damages and attorney fees under 42 USC Sec. 1988.

Berry’s federal complaint was filed by Louisville Attorney William Sharp an attorney for the ACLU.

DISCUSSION OF KENTUCKY LAW:

KRS 6.691 requires that meetings of the Legislative Ethics Committee must be open to the public unless the members vote to go into executive session in accordance with KRS 61.810.

KRS 61.180 is a statute regarding exceptions to the open meetings law that says all meetings of public agencies shall be open to the public.  

Our review of KRS 61.180 says:

(1) All meetings of a quorum of the members of any public agency at which any public business is discussed or at which any action is taken by the agency, shall be public meetings, open to the public at all times, except for the following:

(The exceptions listed in 61.180 which appear to apply to this situations are :)

(f) Discussions or hearings which might lead to the appointment, discipline, or dismissal of an individual employee, member, or student without restricting that employee’s, member’s, or student’s right to a public hearing if requested. This exception shall not be interpreted to permit discussion of general personnel matters in secret;

Comment:  Section (F) supports the right of the LEC to close their doors to the public. However, that section should be read in light of Section (j) which more accurately describes the function of the LEC and places limitations on the people who may attend the closed meeting:

(j) Deliberations of judicial or quasi-judicial bodies regarding individual adjudications or appointments, at which neither the person involved, his representatives, nor any other individual not a member of the agency’s governing body or staff is present, but not including any meetings of planning commissions, zoning commissions, or boards of adjustment;

Comment: Section (j) says that if there is a closed meeting,  only members of the LEC and their staff may attend the closed meeting, and it specifically mandates that “neither the person involved (i.e. Sen. Williams), his representative, nor any other individual not a member of the governing body or staff” shall be allowed into the closed meeting.   It is reported in the Courier Journal stories and alleged by Berry and the ACLU lawsuit that Sen. Williams was allowed to attend the closed meeting of the LEC while Berry and Richard Beliles and the media were excluded. 

If Sen. Williams was allowed to attend the closed meeting as alleged, then there is no support for the allegation of  the Inquiry Commission’s finding  that Berry’s acts were a violation of  SCR 3.130 8.2(a) and constituted  an ethics violation for “falsely” and with “reckless disregard as to the truth”  when he made the statement in his letter that the LEC “did not conduct its review appropriately.”

Let’s explain this in simple terms.  KRS 61.810 (j) says that Sen. Williams could not be allowed to attend the closed meeting.  If Berry said that the LEC acted improperly by allowing Sen. Williams to attend the closed meeting…, where is the falsity in Berry’s comment that the LEC  “did not conduct the review appropriately”?

Previous court decisions regarding statements made by attorneys focused on the failure of the attorney to offer substantial proof of his complaints, but otherwise said an attorney has the right to “criticize the courts and their decisions.”

In 1955, before the existence of SCR 3.120 8.2(a), the court allowed sanction of an attorney who had made “false and scurrilous” charges against a sitting judge which charged political corruption.

Kentucky State Bar Ass’n v. Lewis, 282 S.W.2d 321 (Ky., 1955)

 ”Freedom of speech is not a license. It is a right or a privilege constitutionally guaranteed, but he who uses it as a license to degrade another does so at his peril. He must be prepared to prove the truth of his charges. Of course any attorney, as well as any other citizen has the right to criticize the Courts and their decisions, but the publication of false and scurrilous matters subjects them to disciplinary action. Thatcher v. United States, 6 Cir., 212 F. 801; State ex rel. Dabney v. Breckenridge, supra, 126 Okl. 86, 258 P. 744, 53 A.L.R. 1239; Snyder’s Case, 301 Pa. 276, 152 A. 33, 76 A.L.R. 666

“We believe that where he makes charges of judicial corruption such as he made here, the attorney must be prepared to introduce substantial competent evidence in support of those charges.”

“In this case the defendant caused to be printed and published charges of political favoritism and corruption against honorable and distinguished judges, without any real effort to investigate the facts, and without a scintilla of evidence to support them.”

In l980 the court held:

 Kentucky Bar Ass’n v. Heleringer, 602 S.W.2d 165 (Ky., 1980)

   ”We have previously, yet infrequently, had occasion to review charges of professional misconduct by attorneys who by their conduct and comments chip away at public confidence in the integrity of the judicial system. Kentucky State Bar Association v. Lewis, Ky., 282 S.W.2d 321 (1955) the attorneys involved charged in pleadings and in the local newspaper that a change in the assignment of special judges was politically motivated. We recognized that an attorney, just as any citizen, has the right to criticize the courts and their decisions, but charges of corruption or unethical conduct must be made only in good faith supported by substantial competent evidence. The attorney “owes it to himself as an attorney, to his profession, and to the Court to help maintain the dignity and decorum of the Court, and thus maintain the respect of the people for judicial processes.” KSBA v. Lewis, supra, at 324. Recently, in KBA v. Nall, supra, we applied this rule to an attorney who described a proceeding before a hearing officer of an administrative body as a “mere farce” and a “Kangaroo court” during a radio station interview.”

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