WHY DID JOHN M. BERRY, Jr. WRITE HIS LETTER – WHAT DOES IT MEAN TO OTHER ATTORNEYS WHO WISH TO PETITION THEIR GOVERNMENT FOR A REDRESS OF THEIR GRIEVANCES?

By LawReader Senior Editor  Stan Billingsley    March 5, 2011

 The Common Cause Complaint filed in July of 2007 by Richard Beliles, Attorney and State Chair of Common Cause of Kentucky generally alleged that Senator David Williams violated the Legislative Ethics Code regarding solicitation of campaign contributions from lobbyists.  The Legislative Ethics Commission dismissed the complaint.

The complaint filed by Common Cause alleged: 

“Senator Williams solicited numerous legislative agents to give and/or raise campaign contributions for a fund raising event for the Senate Republican Caucus Campaign Committee to be held July l9 2007 in Louisville, Kentucky…(this action was)..contrary to this Commission’s holdings in OLEC 05-01, 06-03, and 95-10.  In OLEC 05-01 this Commission held that a lobbyist may not make a campaign contribution to the Senate Republican Caucus Campaign Committee and that a legislator may not solicit a campaign contribution from a lobbyist for such committee. In OLEC 06-03 the Commission held that a legislator cannot direct a lobbyist to solicit campaign contributions for a political party. OLEC 95-10 is discussed later herein.”

   In 2007 the Legislative Ethics Commission dismissed the complaint against Senate President David Williams. The LEC held that since the solicitation was done by Williams staff and not directly done under his direction, and therefore he did not violate any ethics rule.

   Ronnie Ellis, CNHI New Service,  in 2007 interviewed Legislative Ethics Commission Chairman George Troutman about the complaint filed by Kentucky Common Cause against Senate President David Williams.  Ellis reported.  (emphasis added by LawReader)

“Troutman said Beliles’ complaint was not “a frivolous complaint. I can see after looking at the evidence how somebody could view it as perhaps being a problem.”

The order dismissing the complaint indicated that Senate staff – Becky Harilson, Williams’ Chief of Staff and Brad Metcalf, policy advisor for Williams – produced the forms and arranged the lunch but not at Williams’ direction.

Mike Malone, enforcement counsel for the commission, said that was key.”

“At least two lobbyists at the meeting addressed the group explaining they could not contribute to the Senate Caucus Committee. Lobbyists by law cannot contribute to the Senate campaign or legislator races nor can legislators ask them to do so.”

“I think it’s clear there was a form given out,” Troutman said of the lunch. “I also think it’s clear from the evidence we have that Sen. Williams did not ask for any money.”

“If someone acted at David Williams’ direction, then that conduct could be attributed to the legislator,” Malone said. “Unless they did it at the direction of the legislator, it can’t be attributed by the commission to the legislator.”

“Troutman was asked repeatedly if it wasn’t clear by Williams’ presence and because he’d signed a letter inviting guests that he endorsed the forms and the implied solicitation of the lobbyists in attendance. Troutman said there was no evidence of any intent to violate the law and the statute clearly requires intent.

Williams “did not ask any lobbyist there to go out and solicit money,” said Tony Wilhoit, the commission’s Executive Director. “The form indicates that, but he’s got to go out and intentionally do that.”

The lunch drew several lobbyists and non-lobbyist contributors to the Republican Party and Republican candidates. It was to plan and prepare for a July fund raising event which was later canceled. Wilhoit said the May 23 event did not constitute a fund raising event and because Williams did not produce the forms or ask those at the lunch to contribute, he’d done nothing to violate the law.”

“This was not a fund raiser, this was a meeting to inform people of a fund raiser,” Wilhoit said.

JOHN M. BERRY JR. TAKES EXCEPTION TO THE LEC REASONING FOR DISMISSAL OF THE DAVID WILLIAMS COMPLAINT

      The act which instituted a Kentucky Bar Association ethics complaint being filed against attorney John M. Berry, Jr. of New Castle, Ky. was a letter that Berry wrote in 2007 to Legislative Ethics Commission George Troutman after the Commission’s ruling. 

      In his letter Berry questioned the legal reasoning of the LEC.  No threats were made in the letter and no profanity was contained in his letter.  The letter did not “falsely” question the “integrity” or “qualifications” of a judicial officer as required by SCR 3.130 (8,2), (the rule with which Berry was charged by the KBA).  The Berry letter questioned the reasoning of the Board but did not question their integrity or qualifications.  

The KBA did not explain in their ruling against Berry (i.e. Warning Letter) how anything Berry said was “false” or specifically whose “integrity” or “qualifications ” was attacked, and we have seen no clear ruling by the KBA that SCR 3.130 can be read to define the Legislative Ethics Commission members as a “judge, adjudicatory officer, or public legal officer”  or other member of the protected class as required by SCR 3.130.

“ 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 officer, or of a candidate for election or appointment to judicial or legal office.”

     The Legislative Ethics Commission is a creature of the legislature, it is not a court of law. It may be that they can be defined as “adjudicative officer(s)” or “public legal officer(s)” but we have found no clear legal ruling saying so.  Nevertheless, the most important material element of SCR 3.130 is that the statement be “false. “  

We note that LEC Board Chairman George Troutman offered the best defense for John M. Berry, Jr. when he observed as reported by Ronnie Ellis,  “Troutman said Beliles’ complaint was not “a frivolous complaint. I can see after looking at the evidence how somebody could view it as perhaps being a problem.”  

    If the Chairman of the Legislative Ethics Commission himself sees a basis for the argument that the  complaint by Common Cause was “not frivilous”, this appears to place the issue well within the arena of appropriate discussion and debate.  We note a complete absence of any statement by the recipient of Berry’s letter in which he says that Berry’s opinion letter was “false”.

      We suggest that SCR 3.130 (8.2) as applied against Berry is an unconstitutional abridgement of his free speech rights.  If this ruling holds up, then the KBA can sanction any lawyer anytime he expresses a political or legal opinion with which the KBA might disagree.

      We would suggest that the reasoning of the LEC that Senator Williams had not violated an ethics code rule is legitimately debated by Berry.   The LEC based their dismissal of the Williams complaint on the theory,  that his staff had done the offending acts:

 ” Senate staff – Becky Harilson, Williams’ Chief of Staff and Brad Metcalf, policy advisor for Williams – produced the forms and arranged the lunch but not at Williams’ direction.” “…that was key”.

    We do not intend to question the “integrity” or “qualifications” of Mr. Troutman, any member of the LEC or even of Senator Williams. The ruling of the LEC dismissing the complaint against Senator Williams is final but that does not mean that all discussion of their reasoning in reaching their decision is beyond public debate. 

   The KBA has certainly done no favor for Senator Williams by prolonging this debate since 2007. If the KBA had ignored Berry’s letter, this matter would not be a potential campaign issue as Senator Williams seeks the Office of Governor.   The issue continues as Berry and The ACLU have filed a civil action against the KBA in Federal Court. The action seeks to establish an attorney’s right to enjoy the same free speech rights as enjoyed by other citizens. A decision by the Federal Court is imminent.

  This article is necessary because the KBA has sought to limit the free speech rights of John M. Berry Jr.  If they succeed in silencing Berry, then they can limit the free speech rights of all attorneys.

    We would suggest that one legal argument that can be made about the reasoning behind the  the LEC’s ruling is found in  the doctrine of Respondent Superior which can impose upon an employer responsibility for the acts of his employees.

Berry’s letter in essence raised this question.

Respondent Superior Doctrine:

Tackett v. Inland Steel Co., 281 Ky. 313 (KY, 1940)

January 16, 1940.

        1. Master and Servant. — The test of relationship of master and servant or employer and employee is the right of control on part of alleged employer.

        The test of the relationship of master and servant or employer and employee is the right of control on the part of the alleged employer. McCoy v. Griffith, 196 Ky. 406, 244 S.W. 871; Corbin Fruit Company v. Decker, 252 Ky. 766, 68 S.W. (2d) 434; Slusher v. Hubble, 254 Ky. 595, 72 S.W. (2d) 39. In American Savings Life Insurance Company v. Riplinger, 249 Ky. 8, 60 S.W. (2d) 115, 117, it was said:

        ”A servant is a person subject to the command of his master as to the manner in which he shall do his work, and the master is the one who not only prescribes the work but directs, or may direct, the manner of doing the work. Bowen v. Gradison Construction Company, 236 Ky. 270, 32 S.W. (2d) 1014; Jarvis v. Wallace, 139 Va. 171, 123 S.E. 374. A master within the doctrine of respondent superior is the one who cannot only order the work, but also how it shall be done. Carter v. King County, 120 Wash. 536, 208 P. 5. The doctrine applies only where the relationship of master and servant exists at the time and in respect to the thing causing the injury, and from which it arose (Tilburne v. Burton, 86 Cal. App. 627, 261 P. 334; Martin v. Greensboro-Fayetteville Bus Line, 197 N.C. 720, 150 S.E. 501; Kennedy v. Wolf, 221 Ky. 111, 298 S.W. 188), and then only when the one sought to be charged has some right in some way to control the conduct of the party having caused the injury.”

 

Shedd Brown Mfg. Co. v. Tichenor, 257 S.W.2d 894 (Ky., 1953)

Charging one with the negligent acts of another, under the doctrine of respondent superior, is an arbitrary rule based on public policy; and its justification is that the employer should be vigilant in supervising those in his employ to protect the public generally. See Bowen v. Gradison Construction Company, 236 Ky. 270, 32 S.W.2d 1014. It would be an unfair application of the rule if the ‘employer’ had no way of guarding against liability by having some control over, or right to control, the particular act or instrumentality which causes the injury.

        The fundamental principle which governs this type of case is thus set forth in 2 Am.Jur., Agency, Section 8:

‘The theory which in many cases is adopted to differentiate between an agent and an independent contractor is that one is to be regarded as an agent or an independent contractor according to whether he is subject to, or free from, the control of the employer with respect to the details of the work.

        As stated in American Savings Life Insurance Company v. Riplinger, 249 Ky. 8, at page 17, 60 S.W.2d 115, at page 119:

‘The right of control of the means of doing the work, or want of it, is the determinative factor when considering the relationship in such cases, for one who has no right of control in this respect over another ought not to be required to respond in damages for his acts.’

        The difficulty lies in the application of this broad principle, and requires careful consideration of the principal’s actual or potential control over the particular activity in which the alleged agent was engaged at the time he injured another.

“To hold a master legally responsible for the act of a servant who is engaged in furthering his master’s business and who while doing so negligently uses some instrumentality that carries him from place to place, it must either be proved that the master exercises actual or potential control over that instrumentality, or the use of the instrumentality at the time and place of the act complained of must be of such vital importance in furthering the business of the master that the latter’s actual or potential control of it at that time and place may reasonably be inferred.”

 

SEE FOR YOURSELF WHAT ATTORNEY JOHN M. BERRY, Jr. SAID IN  HIS LETTER WHICH RESULTED IN A KBA ETHICS SANCTION?  If His Lawsuit To A Federal Court Is Not Successful Then No Lawyer Will Ever Be Safe In Petitioning Their Government For A Redress Of Their Grievances?  Read Story

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