THE JOHN M. BERRY JR. LETTER WHICH UPSET THE LEGISLATIVE ETHICS COMMISSION AND SPARKED A WARNING FROM THE KBA INQUIRY COMMISSION, AND A FEDERAL LAWSUIT.

 

THE FOLLOWING LETTER WAS WRITTEN BY NEW CASTLE ATTORNEY JOHN M. BERRY, JR. A FORMER STATE  SENATOR.  THIS LETTER IS AN EXHIBIT IN A FEDERAL CIVIL SUIT FILED BY JOHN M. BERRY, JR. AND THE ACLU AGAINST THE KBA INQUIRY COMMISSION.

AS A RESULT OF THIS LETTER THE KBA INQUIRY COMMISSION CONDUCTED AN “INVESTIGATION” AND LATER ISSED “A WARNING LETTER” TO BERRY.  THE INQUIRY COMMISSION ALLEGED THAT BERRY VIOLATED SCR 3.130 8.2(A) WHICH STATES:

SCR 3.130 8.2(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 OFFICE, OR A CANDIDAE FOR ELECTION OR APPOINTMENT TO JUDICIAL OR LEGAL OFFICE.”

THE INVESTIGATION BY THE INQUIRY COMMISSION COMMENCED ON NOV 9, 2007 WITH A NOTICE OF INVESTIGATION BY  DEPUTY BAR COUNSEL  JENNY D. LAFFERTY,  AND CONCLUDED ON MARCH 16, 2009 WITH THE ISSUANCE OF A “WARNING LETTER”  AND  WITH THE ORDER OF DISMISSAL DATED MARCH L4, 2009.

THE FEDERAL LAWSUIT SEEKS A RULING HOLDING SCR 3.130 8.2(A) UNCONSTITUTIONAL AS APPLIED IN THIS INSTANCE BY THE INQUIRY COMMISSION.  THE SUIT SEEKS DAMAGES AND COSTS INCLUDING ATTORNEY FEES.

THE WARNING LETTER STATED AS ITS ONLY FINDING OF MISCONDUCT THAT:

“The Respondent violated (SCR 3.130 8.2(a) ) by publicly implying that the Legislative Ethics Commission did not conduct its review appropriately.”

The Berry letter  stated:

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Oct. 5, 2007

Kentucky Legislative Ethics Commission                                                                                                                             22 Mill Creek Park                                                                                                                                                        Frankfort, Ky. 40601

Dear Chairman Troutman and Commission Members:

   As you know, my brother Wendell, and I attempted to attend your meeting on August 14, 2007.  Before commencing the preliminary inquiry relative to the complaint filed against Senator David L. Williams, we were asked to leave along with other members of the public, the media and the complainant, Richard Beliles, on behalf of Common Cause of Kentucky.  The Inquiry was conducted entirely behind closed doors with the exception of Senator Williams who was allowed to be present throughout the preliminary inquiry.  The exclusion of the pubic (sp) and the media was enough to arouse suspicion, but the exclusion of the complainant (except for a brief appearance as a witness) coupled with the inclusion of the alleged violator throughout the proceeding gave cause for some to speculate that the deck was stacked and the Senator would be exonerated. I was not, and am not, willing to go that far, but I do believe that your Order entered July 29, 2007 that exonerated him, was contrary to the undisputed evidence that was presented.

  It is very unlikely that a legislator would ever come before the Commission and confess guilt. it is almost as unlikely that witnesses consisting of legislative staff, lobbyists, or others who have a special interest in the public policy decisions which are influenced by the legislator would take a chance of alienating  by testifying, in his presence, to anything except their high regard for him. Your Order implies that the absence of such testimony warrants the finding that there is no probable cause to believe that there was any wrongdoing, or even the appearance of it, and, therefore, no adjudicatory proceeding would be in order.  I do not agree with your conclusion and I believe that the evidence filed with the complaint, with the other facts you found by the order, clearly indicate that what was going on was unethical and a violation of the statutes which your are charged to enforce.

   I looked first at the letter written by Senator Williams which was an invitation to all of the invitees to participate in a joint venture to raise money to finance the campaigns of Republican candidates for the State Senate.  The letter itself depicts the capitol dome with the senator’s name and high office printed underneath.  Across the capitol dome are the words, “Senate Majority Event”. The letter stresses the importance of Senator Williams in the conduct  of Senate business and the personal importance to him of the invitee’s cooperating in this effort to elect Republican candidates to the Senate.  The purpose of the solicitation is to maintain and grow the Senate Republican majority which is necessary to keep Senator Williams in the position of President and therefore, well positioned to attend to the business of the invitees.   The letter is signed by Senator Williams and underneath his signature the invitees are once again reminded that he is the Senate President.

   The letter, although not an exact copy of senate stationary, is set up so as to appear to be his letterhead and he repeatedly speaks of himself as the Senate President. Anyone aware of the importance of public policy decisions to fund-raisers would be aware also of the extent to which the power and influence of Senator Williams could affect their interests and, therefore, of the importance of having his goodwill.  To ignore the invitation would be risky business for them. All of this is clearly contrary to, or in violation of, or questionable under, the follows:

KRS 6.606 Purpose of Code

The proper operation of democratic government requires that a public official be independent and impartial; that government policy and decisions be made through the established processes of government; that a public official not use public office to obtain private benefits; that a public official avoid action which creates the appearance of using public office to obtain a benefit; and that the public  have confidence in the integrity of its government and public officials.

KRS 6.731 General Standards of conduct; penalties

A legislator, by himself or through others, shall not intentionally:

(1) Use or attempt to use his influence as a member  of the General Assembly in any matter which involves a substantial conflict between his personal interest and his duties in the public interest. Violation of this subsection is a Class A misdemeanor; ……

(3) Use or attempt to use his official position to secure or create privileges, exemptions, advantages, or treatment for himself or others in direct contravention of the public interest at large. Violation of this subsection is a Class A misdemeanor. …..

(5) Use public funds, time, or personnel for partisan political campaign activity, unless the use is:

(a) Authorized by law, or

(b) properly incidental or another activity required or authorized by law, such as elections to constitutional or party offices within the General Assembly. Violation of this subsection is a Class A misdemeanor.

(6) Use of his official legislative stationery, or a facsimile thereof, to solicit a vote or a contribution for his or another person’s campaign for election or reelection to public office, or use the great seal of the Commonwealth on his campaign stationery or campaign literature. For purposes of this subsection, “official legislative stationery” means the stationery used by a legislature on a day-to-day basis for correspondence related to his duties as a member of the General Assembly. Violation of this subsection is ethical misconduct.

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 campaign contributions from a legislative agent. Violation of this provision is ethical misconduct.

OLEC 06-03 OPINION

1. A member of the General Assembly may not ask or direct a lobbyist to solicit campaign contributions for a political party or a legislative campaign.

    A careful reading of the letter which Senator Williams sent to the invitees leads but to one conclusion, which is that the most powerful member of the Kentucky State Senate, representing himself personally and the Majority Caucus, was putting the arm on people, who have a vital special interest in public policy decisions, for campaign contributions, and that he was doing so in order to maintain the majority and to keep himself in his position as President. If the letter is then read in the context of the above statues, it is just as clear that his conduct violates those statutes.

    This conclusion is reenforced by all of the things that occurred between the time that the letter was written and the luncheon on May 23rd. The material distributed at the luncheon is especially offensive in that it solicits contributions to the senate political caucus, which will finance the campaigns of individual senators. It further recommends that, in addition to the $2,000 per person ticket of admission to the fundraiser, invitees should contribute a minimum of $5,000.  And it further suggests that attendees can achieve much greater benefit, including  seat at the head table with the featured speaker and Senate President David L. Williams, for $50,000.

   In all of these documents, from the letter of invitation to the fact sheet and the benefit sheet, Senator Williams is prominently featured. he was the featured speaker at the event at which the information was given to all guess including the lobbyists.  This episode as a whole constitutes a blatant misuse of power in order to obtain large contributions from lobbyists and others with a big stake in government programs and projects.  It is not clear how the Commission could have justified Senator Williams conduct and dismissed the complaint.  There is no question that he as well as his official position and influence were being used for the benefit and advantage of the senate candidates and himself.

   There were approximately seven grounds cited by you in your order to support your exoneration of Senator Williams. None of these grounds either standing alone or collectively warrant the result. How many complainants could be expected to have firsthand knowledge of violations?  Mr. Beliles did have first-hand knowledge of the documents that clearly set forth the plan and the motive behind it. They were presented to your and admitted as evidence. What value is it to know that an alleged violator made a telephone call verbally requesting an opinion, without all of the facts and asking only one very limited and irrelevant question?  When did the hiring of go-betweens to carry out an illegal plan in order that the planners and organizers “could get away from it” become a justification for anything? Is it further mitigating if the people you hire know little or nothing about the law?  The implications here are obvious, but in the opinion of the Commission, appear to be sufficient to establish nothing less than the best of intentions.  If the lobbyists question the legality of what is being done, you solve the problem by simply instructing them to make their checks payable to the party and not to the caucus. If all else fails, but the Senator was at the time in a hurry, then he is exonerated on the basis of the legal proposition that “haste makes waste”.

   If the law as it stand is inadequate to allow you in this case to find any violation, ethical misconduct, impropriety, or even the appearance of it, then the law needs to be changed and I hope that you would be instrumental in attempting to get that done.

Very truly yours,

(s) John M. Berry Jr.

JMBjr:mc

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The Federal Lawsuit contains a letter from the Inquiry Commission to John M. Berry Jr. dated March 16, 2009.  This letter is dated some l7 months after the date of the Berry letter to the Legislative Ethics Commission.  We have not viewed any documents which specifically detail what statements made by Berry in his letter were “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…”(As required by SCR 3.130 8.2(a)… the ethical rule Berry is alleged by the Inquiry Commission to have violated.

In a document dated May 29, 2008 Berry notified the Inquiry Commission that he waived any confidentiality concerning the investigation against him by the Inquiry Commission.  ”(Re: SCR 3.150)… Subsection 1(a) …provides that I can waive confidentiality and that would appear to remove the confidentiality requirement entirely.  I therefore am waiving the confidentiality requirement effective with this letter.”

Plaintiff’s Exhibit 2 – Document 1-3 filed in the Federal Civil Suit states:

INQUIRY COMMISSION                                                                                                                                                   KENTUCKY BAR CENTER                                                                                                                                             514 WEST MAIN STREET                                                                                                                                            FRANKFORT, KENTUCKY 40601-1812

March l6, 2009

 

CONFIDENTIAL                                                                                                                                                                      John M. Berry Jr.                                                                                                                                                                     l9 N. Main St.,                                                                                                                                                                             P.O. Box 245                                                                                                                                                                                 New Castle, Ky. 40050-0245

    Re:  John  M. Berry Jr. (Complaint of the Inquiry Commission)  KBA File 15773

Dear Mr. Berry:

    The Inquiry Commission has considered the above referenced  Complaint and the materials provided by the Respondent, as well as additional investigative materials.

    The Commission has found that it appears Respondent ‘s conduct  did not adequately comply with the requirements of SCR 3.130 8,2(a).

   On October 5, 2007, the Respondent sent a letter to the Kentucky Legislative Ethics Commission criticizing its treatment of a Complaint filed against Kentucky Senator David L. Williams.

   SCR 3.130 8.2 (a) provides: “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  a candidate for elections or appointment to judicial or legal office.”  The Respondent violated this Rule by publically implying that the Legislative Ethics Commission did not conduct its review appropriately.

   The Inquiry Commission voted to issue this warning letter, in connection with its Order of Dismissal, as provided by SCR 3.185, in lieu of either a Private Admonition or a Charge. This letter is to advise you in the future to conform your conduct to the requirements of the Rules of Professional Conduct.

   Pursuant to SCR 3.185, the issuance of this warning letter does not constitute a record of discipline. The file will be destroyed after one (1) year.

Very truly yours,

(s) Reed N Moore Jr.                                                                                                                                               Chair, Inquiry Commission

RNM/esd

cc. Steven R. Romines, Counsel for Respondent.

In another document filed as an exhibit with the Federal lawsuit – Document 1-3- The Inquiry Commission issued an “Order of Dismissal” of the complaint against Berry. that order was dated  March 14, 2009.  That order said “the record relating to this complaint shall be destroyed one year after the date of this order.”

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THE CONFIDENTIALITY RULE

SCR 3.150 Access to disciplinary information

 

(1) Confidentiality. In a discipline matter, prior to a rendition of a finding of a violation of these Rules by the Trial Commissioner or the Board and the recommendation of the imposition of a public sanction, the proceeding is confidential.

 

(2)(a) Notwithstanding subsection (1), the pendency, subject matter and status may be disclosed by Bar Counsel if:

 

i. The Respondent has waived confidentiality;

 

ii. The proceeding involves public reciprocal discipline;

 

iii. The disclosure of any information is made for the purpose of conducting an investigation by the Inquiry Commission or the Office of Bar Counsel, or;

 

iv. A Motion for Temporary Suspension is pending.

 

(b) After considering the protection of the public, the interests of the Bar, and the interest of the Respondent in maintaining the confidentiality of the proceeding prior to a finding of a violation of the Rules, the pendency, subject matter and status may also be disclosed by Bar Counsel at the discretion of the Chair of the Inquiry Commission, or of the Chair’s lawyer member designee, if:

 

i. The proceeding is based upon an allegation that the Respondent has been charged with a crime arising from the same nexus of facts; or

 

ii. The proceeding is based upon a finding by a court in a civil matter that an attorney has committed conduct that may constitute a violation of the Rules of Professional Conduct.

 

(3) Duty of Participants. All Participants in a proceeding under these Rules shall conduct themselves so as to maintain the confidentiality requirement of this Rule. Nothing in the rule shall prohibit the Respondent from discussing the disciplinary matter with any potential witness or entity in order to respond in a disciplinary proceeding, or to disclose to any tribunal, or to disclose any information for the purpose of conducting a defense. This provision shall not apply to the Complainant or the Respondent after the Inquiry Commission or its Chair has taken action on a Complaint including the issuance of a charge, the issuance of a private admonition, or a dismissal, including those pursuant to SCR 3.160(3).

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