Executive Branch Ethics Commission appears to have exceeded their jurisdiction in proceeding against Dan Druen, and attempting to block Stumbo out of race for Governor.

An article by LawReader Senior Editor Stan Billingsley.
 
  We have reviewed actions taken by the Executive Branch Ethics Commission in two different actions. 
First, the Ethics Commission last week announced that they had found probable cause to charge Dan Druen with an Ethics Code violation (which if proven after a hearing could result in his prosecution for a class D felony) for actions for which he was already pardoned by Governor Fletcher.  Not only is the jurisdiction of the Commission questioned, but their motive in singling out Druen and ignoring at least eight others including the Governor himself for similar accusations of Ethics violations.

Secondly, the Commission has issued an ethics opinion that suggests Attorney General Greg Stumbo can be prosecuted for a violation of the Executive Branch Ethics Code if he runs for Governor against Governor Fletcher.

   Both of these actions raise issues concerning the jurisdiction and impartiality of the Executive Branch Ethics Commission. The five person commission consists of four appointees appointed by Governor Fletcher and one appointed by Gov. Paul Patton.

  This article provides readers with direct links to the important legal issues discussed.

The Commission seeks to limit the constitutional reach of the Governor’s Pardon Powers.

   A news story published December 18, 2006 states:

“Last Friday, the Executive Branch Ethics Commission “found probable cause to believe” that former Transportation Cabinet official Danny G. Druen committed 10 violations of state ethics laws related to the hiring scandal in Gov. Ernie Fletcher’s administration.

The charges against Druen stem from the creation of the infamous “hit list,” his alleged tampering with evidence, his attempt to influence the testimony of cabinet employee Cheryl Casey and his involvement in several personnel actions (including the firing of deputy inspector general Mike Duncan) in which political affiliation played a role.?

  The public records show that Governor Fletcher included Dan Druen in the persons covered by his blanket pardon for all acts relating to the Merit System Investigation prior to August 29, 2006.

   During a Capitol rotunda speech at 6pm on Aug. 29 attended by about 150 non-merit employees whom he had appointed to jobs, Fletcher said, “I cannot allow state government to continue to be consumed by this game of political ‘gotcha’ paralyzing our ability to serve you, the people of Kentucky…Some of the indictments are the equivalent of conspiring to commit noodling out of season.?  (Noodling is a form of fishing, and his denigration of the charges to that level has drawn heavy criticism.)

Fletcher indicated in his executive order on pardoning that it also included any future indictees except himself. 
 
 Under the power of the Executive Branch Ethics Commission a person found by the commission, after an investigation and hearings, to have violated the provisions of KRS Chapter 11A, may be prosecuted for a Class D felony.    See: Penalties for violation of Executive Branch Code of Ethics

  This complaint against Dan Druen filed by the Executive Branch Ethics Commission appears to be in direct conflict with the Governor’s power under Section 77 of the Kentucky Constitution to pardon persons charged with crimes.  See:   Pardon Powers of the Governor

Section 77- Ky. Constitution: “He shall have power to remit fines and forfeitures, commute sentences, grant reprieves and pardons…?

   The Kentucky Supreme Court in Fletcher v. Graham, 2005-SC-1009-MR (Ky. 5/18/2006) (Ky., 2006) recently discussed issues which would clearly appear to apply to restrict the ability of the Executive Branch Ethics Commission from further attempts to prosecute and punish him for acts for which he was pardoned by the Governor. Fletcher v. Graham, supra held:

“The language of Section 77 is clear, and its meaning unambiguous. The Governor is given authority to grant pardons. Aside from cases of impeachment, absolutely no restriction is placed on this delegation of authority. Nothing in the language of Section 77 infers that general pardons are prohibited, nor is there any indication that a governor may not pardon a class of persons.

 We are not at liberty to insert meaning where the language of the provision is clear. Instead, the language of Section 77 leads to only one reasonable interpretation: that the framers intended to give the Governor broad and unrestricted discretion to issue pardons to whomever.?

…  The parties agree that a pardon serves to relieve the pardonee of criminal prosecution. “A ‘pardon’ is ‘[t]he actor an instance of officially nullifying punishment or other legal consequences of a crime.”37 It operates to eviscerate prosecution of the pardoned offense, because the pardonee is regarded as innocent: “The pardoned man is relieved from all the consequences which the law has annexed to the commission of the public offense of which he has been pardoned, and attains new credit and capacity, as if he had never committed that public offense.”

“…The law is clear and well-established: “the pardon is itself an absolute exemption from any further legal proceedings….”  There is no room for equivocation on this point. When a pardon has been issued, the court is without jurisdiction or constitutional authority to continue legal proceedings against the pardonee: “[w]hen a pardon… is brought to the attention of the court, it is the duty of the court to discharge the defendant and dismiss the proceedings against him….”

“…Moreover, any person falling within the class specified by the Governor’s pardon now holds a right, by virtue of the constitutional force of the pardon, to be free of any further legal proceedings. “In their proceedings the grand jurors cannot deprive a citizen of any substantial right assured by the constitution.”

“…A gubernatorial pardon operates to cease any further legal proceeding concerning the pardoned conduct, including indictments. When a grand jury is investigating alleged criminal conduct that is subsequently pardoned, it is the duty of the supervising court to instruct the grand jury of the legal effect of that pardon, as such information is relevant and material to the business of the grand jury.?

   Critics have opined that Druen is being harassed because he cooperated with the Attorney General’s investigation, and he has testified, and is quoted in numerous newspapers as having said that all he did was to follow Governor Fletcher’s orders in making up a hit list of Merit System employees to discharge in violation of the Merit System laws.

  Newspaper articles quoted as early as May, stated that others had come forward to state that Governor Fletcher was personally involved.  The testimony of Druen and others with personal knowledge would appear to provide the Commission with sufficient probable cause to institute an ethics investigation of Governor Fletcher.  Governor Fletcher has never been pardoned. Therefore, there is no legal impediment to the Executive Branch Ethics Commission investigating and prosecuting Governor Fletcher for potential violations of KRS Chapter 11A.  At least until the Governor pardons himself.

    It is troubling that the Ethics Commission has singled out Dan Druen for an ethics complaint, and then failed to treat all the other Fletcher administration employees involved, in the same manner.  Where are the Ethics Commission complaints against Transportation official Nighbert, Jim Adams, deputy transportation secretary, Richard “Dick” Murgatroyd,  deputy chief of staff for Fletcher, Cory Meadows,  state transportation program coordinator, Basil Turbyfill, director of office of personnel and efficiency, Bob Wilson, Deputy personnel secretary?

Why was Dan Druen the only indicted official singled out by the Ethics Commission for an ethics code complaint?

The actions of the Executive Branch Ethics Commission appear to be in direct conflict with the decision of the Ky. Supreme Court in Fletcher v. Graham.

  The procedures of the Ethics Commission are preliminary steps to criminal prosecution. Until we see different legal authorities otherwise, we can only reach the conclusion that Governor Fletcher’s pardon benefits all the persons pardoned.  If the Commission has the jurisdiction to prosecute Druen, and if it’s members are truly impartial and have fidelity to the law, then all the other pardoned officials should be very concerned.  Since the Governor has never been pardoned, he should be very concerned about potential investigation and prosecution by the Commission.

                                                 *****************

The Commission attempts to prevent the Attorney General from seeking higher office.

    The Executive Branch Ethic’s Commission relies on KRS 11A.005 to conclude that the Attorney General who has investigated and prosecuted the governor can not run for the office of Governor if the person he prosecuted is also running for that office.

One may argue that Section 72 of the Kentucky constitution sets the qualifications for the office of Governor. The advisory opinion of the Executive Branch Ethics Commission would add additional qualifications for candidacy to the office of Governor.

The constitution does not create an additional requirement of candidacy to prevent an attorney general who exercised the powers of his office from being eligible to run for the office of Governor.  No such additional qualification was ever written by the legislature.

Neverthless, the Executive Branch Ethics Commission by the adoption of Ethics Opinion 06-16 dated June 16, 2006, has de facto added such a clause to Sections 71 and 72 by holding that an Attorney General who performs his constitutional and statutory duties is ineligible to become a candidate for the office of governor.

We would suggest that Sections 71 and 72 set the only qualifications for the office of Governor, and neither the legislature or the Executive Branch Ethics Commission may add additional requirements. Once a candidate meets the requirements of Section 72, it is up to the voters of this Commonwealth to determine if they wish to elect or defeat a candidate.
                               Kentucky Constitution  -Section 72
                            ________________________________________
                 Qualifications of Governor and Lieutenant Governor — Duties of Lieutenant Governor.
                                  ________________________________________

 The Governor and the Lieutenant Governor shall be at least thirty years of age, and have been citizens and residents of Kentucky for at least six years next preceding their election. The duties of the Lieutenant Governor shall be prescribed by law, and he shall have such other duties as delegated by the Governor.
Text as Ratified on: November 3, 1992. History: 1992 amendment was proposed by 1992 Ky. Acts ch. 168, sec. 3; original version ratified August 3, 1891, and revised September 28, 1891.

   The Commission supports it’s conclusion that if Attorney General Greg Stumbo becomes a candidate for the office of Governor, after having prosecuted the sitting Governor, and that his candidacy will be a violation of the Executive Branch Code of Ethics pursuant to KRS 11A.005 (1) (c) which states that:

       “ A public servant not use public office to obtain private benefits;?

  Chapter 11A does not provide a definition for the terms “public? and “private? as cited by the Commission.  It is a standard legal rule that when a statute does not define a term that the term shall be given its plain and simple meaning.  In such instances the courts often turn to a dictionary to determine what the plain and simple meaning of a word might be.

 See: LWD Equipment, Inc. v. Revenue Cabinet, Commonwealth, 136 S.W.3d 472 (Ky. 06/17/2004)

Also see: KRS 446.080 which provides…:
(4) All words and phrases shall be construed according to the common and approved usage of language, but technical words and phrases, and such others as may have acquired a peculiar and appropriate meaning in the law, shall be construed according to such meaning.
  When we review the widely accepted Merriam-Webster Dictionary we find the following definitions for these terms.

                         Merriam-Webster Dictionary Definition of PUBLIC:

2 a : of, relating to, or affecting all the people or the whole area of a nation or state

b : of or relating to a government c : of, relating to, or being in the service of the community or nation
7 : supported by public funds… 

                      Merriam-Webster Dictionary Definition of PRIVATE:

2 a (1) : not holding public office or employment (2) : not related to one’s official position

See complete:  Definitions: Merriam-Webster Dictionary  –  public vs. private

   Under the Commission’s reasoning running for the office of Governor is a private benefit as opposed to being a public benefit.  However, the Merriam Webster Dictionary defines “private? as “not related to one’s official position?.

If would appear that the office of Attorney General, and the office of Governor are both “official positions?, and not private positions.  We would suggest that the Commission has built their theory on overly broad definitions of the words “public? and “private?.

   The Commission also contends that even if the Governor, who was investigated by the Attorney General, withdraws from a run for future office, that the Attorney General would still be ethically prohibited from himself becoming a candidate for Governor.    The Commission opines that this would create “the perception that a conflict of interest existed all along.?

 They apply this prohibition even if the Attorney General’s investigation has been completed prior to his run for Governor.

 If a court were to write new legislation, there are many who would deride such a court for being “activist? and for exceeding the authority granted them by the legislature.  Yet the Ethics Commission has arrogated unto themselves the power to amend Sections 71 and  72 of the constitution to write new qualifications for the office of Governor, and to adopt definitions that were never adopted by the legislature when they wrote KRS Chapter 11A.005(1)(c).

   Section 71 of the Constitution spells out a condition which precludes candidacy for the office of Governor.  That condition prevents a person from serving more than two consecutive terms.  If the authors of the Constitution had chosen to add additional conditions precluding candidacy for that office, they would surely have added that qualification either in Section 71 or Section 72.  They chose not to do so. Nevertheless the Fletcher appointed Ethics Commission has chosen to write language into the Constitution that the original authors never intended.

  When an public officer or citizen declares his candidacy against a sitting governor, there is always “the perception that a conflict of interest existed all along.? Again we suggest that such a perception is not written in Sections 71or Section 72 of the Kentucky constitution as being a bar to ones candidacy.

The Kentucky Supreme Court in Fletcher v. Graham, 2005-SC-1009-MR (Ky. 5/18/2006) (Ky., 2006) held:

“When interpreting constitutional provisions, our focus rests on the express language of the provision, and words must be given their plain and usual meaning.

 This Court is “not at liberty to construe… plain and definite language of the Constitution in such a manner as to thwart the deliberate purpose and intent of the framers of that instrument.”

 In fact, our predecessor Court recognized as a “cardinal rule” of constitutional interpretation the principle that rules of construction may not be employed where the language of the provision is clear and unambiguous. ”

It is to be presumed that in framing the constitution great care was exercised in the language used to convey its meaning and as little as possible left to implication….”

The findings of the Executive Branch Ethics Commission appear on review to be in excess of their jurisdiction, and in violation of the mandates of the Constitution.

  The Commission has issued three opinions concerning prosecutors and the application of the Executive Branch Code of Ethics. It is in these opinions that the Commission seeks to bar the current Attorney General from running for the office of Governor.

To see their reasoning go to:

Advisory Opinion 06-16, June 16, 2006

Advisory Opinion 06-3, April 10, 2006
Advisory Opinion  03-5, February 13, 2003
                                          
                                         AUTHORITIES
Makeup of the Commission

   KRS 11A.060 prescribes the make up of the Executive Branch Ethics Commission. This law was adopted in l992, and has never before been interpreted by the courts to enable the Commission to write conditions for candidacy to public office.

The current five member board is made up of four persons appointed by Governor Fletcher and one person appointed by Governor Paul Patton.

KRS 11A.060 Executive Branch Ethics Commission — Membership — Officers –
Compensation — Removal — Meetings.
(1) The Executive Branch Ethics Commission is hereby established.
(2) The commission shall be composed of five (5) members appointed by the Governor.
(3) Members of the commission shall serve staggered terms of four (4) years. Of the
initial members appointed as provided in this section, one (1) member shall serve a
term of one (1) year, one (1) member shall serve a term of two (2) years, one (1)
member shall serve a term of three (3) years, and two (2) members shall be
appointed for terms of four (4) years. Thereafter, all appointments shall be for four
(4) years.
(4) The commission shall elect from its membership a chairman and vice chairman. In
the absence of the chairman or in the event of a vacancy in that position, the vice
chairman shall serve as chairman.
(5) A member of the commission shall receive one hundred dollars ($100) per day for
attending meetings and shall be reimbursed for actual and necessary expenses
incurred in the performance of duties.
(6) All members shall be registered voters of the state.

     Four of the five current members of the Executive Branch Ethics Commission were appointed by Governor Ernie Fletcher.  One member, Cynthia Stone was appointed by Governor Paul Patton.

JOHN A. WEBB, CHAIR
Governor Ernie Fletcher appointed Mr. Webb on October 20, 2004 to the seat vacated by K. Gail Russell. Mr. Webb’s term will expire on July 14, 2008.
An attorney in Ashland, Kentucky, Mr. Webb is a partner in the firm of McKenzie, Woolery & Webb. He earned a degree in political science at Georgetown College and his law degree at the University of Louisville.

CYNTHIA C. STONE, J.D., VICE CHAIR
Governor Paul E. Patton appointed Ms. Stone, July 23, 1996, to a four-year term of office expiring July 14, 2000. Ms. Stone was elected Vice Chair of the Commission by its membership on August 31, 1999. Governor Patton subsequently reappointed Commissioner Stone to a second four-year term ending July 14, 2004. She was elected Chair of the Commission August 10, 2001. Ms. Stone resigned her position January 28, 2003. Ms. Stone was appointed on November 19, 2003 to a new four-year term ending July 24, 2007 and was elected Vice Chair on September 30, 2004.
Formerly a partner in the law firm of Stone, Pregliasco, Haynes, Buba in Louisville, Kentucky, Ms. Stone is now busy in real estate ventures. She received her undergraduate and graduate degrees from the University of Louisville.

RAY H. ALTMAN
Governor Ernie Fletcher appointed Mr. Altman on August 16, 2004 to a four-year term expiring July 14, 2008.
A former Kentucky State Representative from the 51st District, Mr. Altman is currently a licensed, independent insurance agent in Campbellsville, Kentucky. He attended Campbellsville College. Mr. Altman formerly worked in the health care industry as a Registered X-Ray Technician and as a Hospital Administrator.

THOMAS V. HANDY
Governor Ernie Fletcher appointed Mr. Handy on June 2, 2005 to the unexpired term of Dr. Melissa Dennison who resigned. Mr. Handy’s term will expire July 14, 2006.
Note: The Commission’s web site lists Mr. Handy as a current member of the commission although his original appointment expired in July of 2006. 
Mr. Handy graduated Centre College and earned his law degree at the University of Kentucky. A former Commonwealth’s Attorney for the 27th Judicial District, Mr. Handy is currently a member of the Kentucky Racing Commission. He makes his home in London, Kentucky.

J. QUENTIN WESLEY
Governor Ernie Fletcher appointed Mr. Wesley on August 22, 2005 to a four-year term that will expire July 14, 2009.
A resident of Morganfield, Mr.Wesley is a self-employed attorney and former State Representative. He earned his undergraduate and law degrees from the University of Kentucky.

Commission Staff

Staff Members
Executive Director: Jill LeMaster
General Counsel: John R. Steffen
Executive Assistant:Daphne Criscillis
Executive Secretary:Jenny May
Investigator:Jeff Jett

Ethics Officers

To give the Commission additional assurance that state employees are knowledgeable of the provisions of the Executive Branch Code of Ethics, the Commission requests that each executive branch agency appoint an “ethics officer” to represent their respective agency. Ethics Officers act as liaisons between their staffs and the Commission. The ethics officers are furnished all advisory opinions and publications of the Commission, and they are responsible for disseminating such information to their staffs. Ethics officers also serve as the appointing authority for the approval of outside employment by employees within their agency.

Ethics Officers Richard Carroll, Catherine Bell, Nicole Liberto, Craig Maffet, Steve Humphries, Rex Cecil, Carolyn Starbuck, Janet McWilliams, and Karen Greenwell all were appointed during 2004 after Governor Fletcher assumed office.  Corey Bellamy was appointed in January 2006.

Kentucky Administrative Regulations concerning the Executive Branch Ethics Commission

Go to:  KAR

Kentucky Revised Statutes  concerning the Executive Branch Ethics Commission

Go to: Kentucky Revised Statutes Chapter 11A 11A.001-11A.990

Penalties for violation of Executive Branch Code of Ethics

KRS 11A.990 Penalties — Time limitation on prosecution for violation of KRS 11A.040.
(1) Any person who violates KRS 11A.040 shall be guilty of a Class D felony. In
addition:
(a) The judgment of conviction for a violation of KRS 11A.040(2) shall recite
that the offender is disqualified to hold office thereafter; and
(b) Any person who violates KRS 11A.040(1) to (5) shall be judged to have
forfeited any employment, or constitutional or statutory office he holds,
provisions of KRS Chapter 18A to the contrary notwithstanding.
Governor Issues Pardons for “noodling? August 29, 2006 – Pardon includes Dan Druen.

Editor: It was speculated at the time that the apparent cooperation of Dan Druen with prosecutors in the merit system investigation provided the impetus for the Gov. to issue blanket pardons on August 29th.

Judge Steve Horner’s Roundup on Ky. Gov.

   Saying the merit system hiring practices investigation was a “political tool? of state Atty.-Gen. Greg Stumbo, Gov. Ernie Fletcher pardoned all nine indictees thus far charged by the special Franklin County Grand Jury.

 The language in Fletcher’s pardon would also seem to exonerate any future persons who would be indicted in connection with the inquiry which is probing whether merit system jobs were illegally filled on the basis of politics. 

During a Capitol rotunda speech at 6pm on Aug. 29 attended by about 150 non-merit employees whom he had appointed to jobs, Fletcher said, “I cannot allow state government to continue to be consumed by this game of political ‘gotcha’ paralyzing our ability to serve you, the people of Kentucky…Some of the indictments are the equivalent of conspiring to commit noodling out of season.?  (Noodling is a form of fishing, and his denigration of the charges to that level has drawn heavy criticism.)

Fletcher indicated in his executive order on pardoning that it also included any future indictees except himself.   

Judge Steve Horner’s Roundup on Ky. Gov.
 
Former Transportation Cabinet administrative services commissioner Dan Druen – who was fired by Fletcher in July – told prosecutors that in April Fletcher was handed a copy of the “hit list? that he prepared and that he believed that Fletcher knew of the illegal scheme to remove registered Democrats in cabinet merit system positions  to make way for Republicans to replace them. This summary of Druen’s statement is from a transcript of a Fri., Aug. 26 interview by Druen to Assistant Atty.-Gen. Scott Crawford-Sutherland filed in court on Sep. 14 a few hours before Fletcher’s firing speech. 

Druen was the only one of the nine indictees who was charged with felony counts, and his arraignment was initially scheduled on Aug. 26.  However, it was postponed that morning leading to rampant speculation over the weekend that Druen already had or was about to plea-bargain with prosecutors.  On Mon., Aug. 29 Fletcher issued his rotunda pardons of all nine indicted, including Druen.

 In his Aug. 26 interview, Druen said that the “Governor’s Personnel Initiative? (“initiative?) was rolled out in January because of frustration in the Governor’s office regarding the slow pace in the cabinet of placing Fletcher Republicans into merit system positions.  Druen said that in April Nighbert asked him to put together a list of merit and non-merit cabinet employees who needed to be fired.  (This list has been referred to by prosecutors as the “hit list.?)  Druen said that later that month he witnessed Nighbert hand over to Fletcher a copy of the “hit list? and that Nighbert described it as the personnel moves that needed to be done at the cabinet.  Druen said that Fletcher said, “Great,? and handed the list to Turbyfill. 

 Druen also accused Commerce Cabinet Sec. Jim Host of offering to help remove three non-merit Transportation Cabinet officials who were thought to be blocking implementation of the initiative.  Host made this offer to Druen for this alleged purpose after the launch of the initiative in January.  Druen gave Host the names of these former cabinet officials:  personnel director Otis Reed, general counsel Frank Miller, and administrative services commissioner Charles Hollan.  Reed and Hollan were later fired by Nighbert, and Miller transferred to the Office of Charitable Gaming and served as its executive director for about a month before resigning on July 18. (It is unknown whether Miller was asked to resign.)  Druen took over Hollan’s job when Hollan was fired.

 Host admitted in an interview with Alessi and Jack Brammer for their Sep. 16 story that he helped Druen rid the Transportation Cabinet of the three above-named officials.  But Host said it was because they were “not effectively helping? the cabinet – not because they were interfering with the initiative, as Druen asserted.

May 20th.  Court upholds blanket pardons.  Judge Steve Horner’s Roundup on Ky. Gov.

 The Kentucky Supreme Court issued a May 18 decision saying that Gov. Ernie Fletcher’s Aug. 29 general pardon was good for any merit system-related offenses alleged to have been committed as of the date of the pardon, and would cover any sealed indictments that the special Franklin County Grand Jury has issued if they fall into that specific date  pattern.  However, the high court said that any indictments alleging merit system crimes since Aug. 29 can still be prosecuted.  This means prosecutions against Transportation Cabinet Sec. Bill Nighbert and former cabinet official Sam Beverage may proceed even though Fletcher attempted to pardon everyone who had already committed or would commit merit system crimes.  Of course, because Fletcher didn’t pardon himself, the 4-2 court ruling has no applicability to the prosecution against him
 
Lexington lawyer Scott White made a key point in a May 15 story by Sarah Vos in The Herald-Leader.  White, a prosecutor during former Atty.-Gen. Ben Chandler’s (now a US Representative) administration from 1995-2003, noted that former or current Fletcher administration officials pardoned by Fletcher can no longer claim 5th Amendment immunity from testifying.  “Since the governor pardoned them, they have to testify,? White said.  “That’s going to be problematic.?  A number of the pardoned officials wrote e-mails that attributed certain decisions, directives, or comments to Fletcher himself.
                   
                          Definitions: Merriam-Webster Dictionary  –  public vs. private

Main Entry: 1pub•lic 
Pronunciation: ‘p&-blik
Function: adjective
Etymology: Middle English publique, from Anglo-French, from Latin publicus; akin to Latin populus people
1 a : exposed to general view : OPEN b : WELL-KNOWN, PROMINENT c : PERCEPTIBLE, MATERIAL
2 a : of, relating to, or affecting all the people or the whole area of a nation or state

b : of or relating to a government c : of, relating to, or being in the service of the community or nation
3 a : of or relating to people in general : UNIVERSAL b : GENERAL, POPULAR
4 : of or relating to business or community interests as opposed to private affairs : SOCIAL
5 : devoted to the general or national welfare : HUMANITARIAN
6 a : accessible to or shared by all members of the community b : capitalized in shares that can be freely traded on the open market — often used with go
7 : supported by public funds and private contributions rather than by income from commercials

Main Entry: 1pri•vate 
Pronunciation: ‘prI-v&t
Function: adjective
Etymology: Middle English privat, from Anglo-French, from Latin privatus, from past participle of privare to deprive, release, from privus private, individual; probably akin to Latin pro for, in front of — more at FOR
1 a : intended for or restricted to the use of a particular person, group, or class b : belonging to or concerning an individual person, company, or interest c (1) : restricted to the individual or arising independently of others 

(2) : carried on by the individual independently of the usual institutions
; also : being educated by independent study or a tutor or in a private school 

d : not general in effect e : of, relating to, or receiving hospital service in which the patient has more privileges than a semiprivate or ward patient
2 a (1) : not holding public office or employment (2) : not related to one’s official position : PERSONAL 

b : being a private
3 a : withdrawn from company or observation : SEQUESTERED b : not known or intended to be known publicly : SECRET c : preferring to keep personal affairs to oneself : valuing privacy highly d : unsuitable for public use or display
4 : not having shares that can be freely traded on the open market
- pri•vate•ly adverb
- pri•vate•ness noun 

ADVISORY OPINION 06-16, Executive Branch Ethics Commission, June 16, 2006

Re: Does a conflict exist for the Attorney General if the Office of the Attorney General is involved in the investigation or prosecution of the Governor?

Decision: No, unless the Attorney General becomes a candidate for the office of governor.

“…the Commission believes that due to the Office of the Attorney General’s involvement to date in the investigation and prosecution of merit hiring violations involving the current Governor, a potential conflict of interest will present itself should the Attorney General at any time file as a candidate in the 2007 gubernatorial election, regardless of whether the investigation and prosecution have been completed, or whether the current Governor remains a candidate in that election. 

One cannot erase a possible conflict of interest by merely completing the action that would have made the matter a conflict in the first place.  Nor would the possible conflict disappear if the action, once completed, was then used for the purpose of furthering one’s own personal or private interest over one’s duties in the public interest.

 Should the Governor withdraw as a candidate in the 2007 gubernatorial election as the result of his investigation and prosecution by the Office of the Attorney General, the Attorney General should continue to take care not to take any action that will make it appear that he used his public office to obtain private benefits.

Becoming a candidate for governor after the sitting Governor withdrew as a candidate due to actions taken by the Office of the Attorney General could lead, at the very least, to the perception that a conflict of interest existed all along.?

ADVISORY OPINION 06-3, Executive Branch Ethics Commission, April 10, 2006 

Re:  Are Commonwealth’s attorneys subject to the provisions of KRS Chapter 11A?

Decision: Yes, except when covered by KRS Chapter 15.733.  

“County attorneys “are not, in most of their duties, “accountable to the executive branch of state government.?

The Commonwealth’s attorney program is made up of 57 elected Commonwealth’s attorneys and their staffs.  Commonwealth’s attorneys and their staffs are employees of the Unified Prosecutorial System (“UPS?), as are county attorneys and their staffs. 

Pursuant to KRS 15.700, which established the UPS in order to “maintain uniform and efficient enforcement of the criminal law and the administration of criminal justice throughout the Commonwealth,? the Attorney General is the chief prosecutor of the Commonwealth.  The Prosecutors Advisory Council (“PAC?) was established in KRS 15.705 to administer the UPS and is administratively attached to the Office of the Attorney General (“OAG?). 

The Attorney General, by statute, is chairman of the PAC, which is responsible for, but not limited to, the preparation of the budget of the UPS as well as its continuing legal education and program development.  Within the OAG is the Prosecutors Advisory Council Services Division, which performs staff services for the PAC and UPS. 

The compensation of each Commonwealth’s attorney and his staff is paid out of  the State Treasury pursuant to KRS 15.755.  Unlike the county attorneys, who act as legal advisers to the county in which they serve as well as criminal prosecutors under the UPS, the Commonwealth’s attorneys serve in their official capacities within their judicial circuits as criminal prosecutors only, so they have no duties outside of those that fall within the mission of the UPS.

While KRS 18A.115(1)(v) excepts Commonwealth’s attorneys and their respective appointees from the classified service, this fact is irrelevant in determining whether Commonwealth’s attorneys are subject to the Code.  Numerous individuals and positions excepted from the classified service by KRS 18A.115(1) are public servants as defined in KRS 11A.010(9) and therefore subject to the Code, including, for example, the Governor, cabinet secretaries, and division directors.  Furthermore, since KRS 18A.115(1) states in its opening paragraph that:  “The classified service . . . shall comprise all positions in the state service now existing or hereafter established, except the following. . .?, it is clear that all the positions listed therein, including the Commonwealth’s attorneys, while not within the merit system, are still considered to be in state service.?
 
ADVISORY OPINION 03-5, Executive Branch Ethics Commission, February 13, 2003

RE: Does investigation of political opponent create an actual conflict of interest for Attorney General?

Decision: Yes, and the Attorney General must remove himself from any involvement regarding the investigation.

This opinion is in response to your January 23, 2003, request for an opinion from the Executive Branch Ethics Commission (the “Commission”). This matter was reviewed at the February 13, 2003, meeting of the Commission and the following opinion is issued.

You state the relevant facts as follows. The Attorney General has filed as a candidate for governor. Another individual who has filed as a candidate for governor was previously the Chief Executive Officer (“CEO”) of a corporation whose successor corporation has been under criminal investigation by the Attorney General’s office for two years, and the other candidate is currently the CEO of the corporate landlord of the successor corporation.

You ask:

Must the Attorney General close his office’s investigation and refer the case to another agency, or must the Attorney General resign his position in order to prevent conflicts of interest during the campaign under KRS 11A.020(1) which provides in part:

(1) No public servant, by himself or through others, shall knowingly:
(a) Use or attempt to use his influence in any matter which involves a substantial conflict between his personal or private interest and his duties in the public interest;
You also ask if it makes any difference if no other single agency, federal or state, has jurisdiction to complete and prosecute the criminal actions under investigation.
As a public servant, the Attorney General must abide by the provisions of the Executive Branch Code of Ethics (the “Ethics Code”) set forth at KRS 11A. The conflict of interest provision cited above states clearly that no public servant can use his influence in a matter that involves a substantial conflict between his private interest (in this case, the Attorney General’s candidacy for political office) and his duties in the public interest (in this case, the Attorney General’s mandate to enforce the law in Kentucky).
It does appear that a potential conflict of interest exists in this matter, and the Attorney General must take steps to ensure that he has no part in the ongoing investigation, and that he receives no communications from employees conducting the investigation. The Commission believes if the Office of the Attorney General continues to investigate this matter, unspoken or implied pressure may exist or appear to exist for the employees conducting the investigation.
In order for the Attorney General to remove himself from being in a position that would allow him to misuse his influence, or give an appearance that he might be misusing his influence or that his influence may be creating implied pressure, the Commission believes that the Office of the Attorney General should remove itself from the investigation until after the primary election, or refer the case to another law enforcement agency, not under the authority of the Office of the Attorney General, that could appropriately investigate and prosecute the case. If no agency has jurisdiction to prosecute the case, the Commission believes that the case could be returned to the Office of the Attorney General once the election is over.

                               Pardon Powers of the Governor

Kentucky Constitution – Section 77
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Power of Governor to remit fines and forfeitures, grant reprieves and pardons — No power to remit fees.
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  He shall have power to remit fines and forfeitures, commute sentences, grant reprieves and pardons, except in case of impeachment, and he shall file with each application therefor a statement of the reasons for his decision thereon, which application and statement shall always be open to public inspection.
 In cases of treason, he shall have power to grant reprieves until the end of the next session of the General Assembly, in which the power of pardoning shall be vested; but he shall have no power to remit the fees of the Clerk, Sheriff or Commonwealth’s Attorney in penal or criminal cases.
Text as Ratified on: August 3, 1891

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Comments

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  3. [...] Executive Branch Ethics Commission appears to have exceeded their jurisdiction in proceeding against Dan Druen, and attempting to block Stumbo out of race for Governor. [...]