See for yourself the John Berry Letter which resulted in a KBA sanction. If you can find an ethical violation here please share it with us.
Anyone concerned about Free Speech Rights should review what John M. Berry Jr. said in his 2007 letter to the Legislative Ethics Commission that resulted in a two year investigation by the KBA and a Warning Letter telling him his letter was “inappropriate”.
The Kentucky and U.S. constitutions both guarantee the right of all citizens to speak freely and to petition their government for a redress of their grievances.
A Federal Judge is currently in the process of issuing his decision in Berry and the ACLU against the KBA. This decision is important because if the KBA decision is upheld no lawyer will ever be allowed to debate with a government agency over their rulings.
The KBA never explained how Berry’s letter violated the Supreme Court Rule which they said he violated. Read the SCR and the letter for yourself. If you believe that Berry’s letter warranted an Ethics sanction by the KBA then we will be glad to publish your letter with your name on www.lawreader.com. E-mail to Firstjudge@aol.com.
The KBA 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 candidate for election or appointment to judicial or legal office.”
THE BERRY LETTER STATED:
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.
After this letter was mailed to the Legislative Ethics Commission by John M. Berry, Jr. a lawyer who served eight years in the Kentucky State Senate, a complaint was filed with the KBA. The KBA began a two year investigation which resulted in a non-appealable Warning Letter saying his letter was “inappropriate”.
Our reading of this letter does not find any “false” accusation that questions the “integrity” or “qualifications” of a judge or judicial officer.