Politics in Kentucky - Week 16 Attorney General Stumbo's Investigation of Governor Fletcher's Cabinet
by Steve Horner
Posted at www.LawReader.com
Click here for link to entire article and prior articles. Here is an extract and topics:
Fletcher Defiantly Issues Pardons and “Takes the Fifth”
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 6p 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.)
An Aug. 30 story by Ryan Alessi and Jack Brammer in The Herald-Leader said, “The crowd, crammed into the Capitol rotunda…cheered on Fletcher throughout his 15-minute address, giving the event the feel of a campaign speech.” Assistant Atty.-Gen. Scott Crawford-Sutherland told Brammer and Alessi for an Aug. 31 story, “It’s a sad day in Kentucky when individuals will congregate and cheer the pardoning of persons charged with serious crimes.”
Stumbo later issued a statement saying that he had “overwhelming” evidence of wrongdoing. He said that Fletcher’s “administration cannot afford to allow the evidence to come out in court. In pardoning these criminal defendants, the Governor has slammed the door on the public’s right to know what wrongs his administration has committed. He has ensured that the people of Kentucky will never know the truth.” Late on Aug. 29, Stumbo held a press conference and said, “Gov. Fletcher broke his promise to the people of Kentucky to cooperate fully with the investigation.” At this press conference, Stumbo said that his office was “considering now whether to bring a challenge in court” to the pardons. Additionally, Stumbo said that he had been in “preliminary conversations with the FBI” which he said was investigating Chicago Mayor Richard Daley for “exactly the same thing” as the Fletcher administration had done.
An Aug. 30 story by John Cheves, Alessi, and Brammer said that U.S. Attorney Greg Van Tatenhove of Lexington on Aug. 29 declined The Herald-Leader’s request for a comment about any charges that Van Tatenhove could bring against Fletcher administration officials for political discrimination – a criminal offense under U.S. law. A separate Aug. 30 story by Cheves said that U.S. Attorney David Huber in Louisville told Cheves that he has discussed this case with Stumbo. (Huber leads U.S. prosecutors in Kentucky’s Western District and Van Tatenhove heads those in the Eastern District.) Most state government cabinets receive federal funds and the Transportation Cabinet (“cabinet”) receives a vast amount each year. Any state officials involved with federal funds must abide by all federal laws – even those regarding hiring. Gubernatorial pardons are irrelevant to a U.S. grand jury indictment.
Fletcher announced during his rotunda speech that he would appear on the next day before the grand jury, as subpoenaed, but would not “speak before this body.” Indeed, Fletcher did appear on Aug. 30 and asserted his Fifth Amendment privilege not to testify. Although most legal experts think that he has the power to do so, Fletcher told the rotunda crowd that he would not pardon himself.
Stumbo now is expected to call witnesses – including some or all of those pardoned – to investigate whether Fletcher, himself, was involved in the promotion of Billy Montgomery and the $14,111 salary increase for Jim Maggard – both merit system employees in the cabinet. Two e-mails suggested that Fletcher could have promised a promotion to Maggard – one from former cabinet commissioner of administrative services Dan Druen and one from Fletcher’s deputy chief of staff Dick Murgatroyd when he, on Aug. 6, 2004, was cabinet deputy Secretary. Murgatroyd gave the promotion to Montgomery and the raise to Maggard. Both Druen and Murgatroyd were indicted, are now pardoned, and cannot now invoke their Fifth Amendment privilege not to testify as they did previously at their grand jury subpoenaed appearances unless they become targets of a federal investigation into the scandal. In a newspaper interview, Maggard said that he asked Fletcher for help on the promotion that Maggard wanted but that Fletcher never agreed to help him.
Stumbo told Brammer and Alessi for a Sep. 1 story that he believed Fletcher issued the pardons “because he was in an untenable position, and he was afraid that people might come forward and cooperate.”
On May 13 Stumbo began a probe into Fletcher’s hiring practices after state government whistleblower Douglas Doerting dropped a 276-page complaint into Stumbo’s lap around May 10. Doerting was the cabinet’s assistant personnel director at the time, and his complaint alleged non-compliance with merit system procedures within the cabinet’s hiring and promotion practices. Doerting retired on May 31. The merit system law requires that rank-and-file employees must be hired, fired, promoted, or transferred on the basis of qualifications and not on the basis of politics.
Fletcher, a Republican, has continually countered that Stumbo’s inquiry was politically motivated because Stumbo, a Democrat, wanted to use it as a weapon against Fletcher when Stumbo would run against Fletcher’s re-election bid in 2007. Stumbo has repeatedly denied any such intention to run for governor.
(Comment: Fact 1: The lead story in The Herald-Leader on Sun., Aug. 28 by Alessi quoted Druen as saying that he had asked his attorney “to explore all options.” This continued speculation – that swirled immediately after Druen’s scheduled Aug. 26 arraignment was postponed – that Druen had decided to make a “deal” with prosecutors. Druen would not comment further regarding this point, and the interview with Alessi did not reveal any major new information. Druen was fired by Fletcher on July 19 and was indicted on 22 felony counts and 13 misdemeanor counts. The other eight indictees each faced one or more misdemeanor charges and no felony charges.
(Question 1: Was The Herald-Leader’s Druen story on Aug. 28 the trigger for Fletcher’s hastily arranged rotunda pardoning speech on Aug. 29? Were Fletcher and his officials afraid of dire consequences if Druen cracked and plea-bargained an agreement in exchange for his possibly damaging testimony?
(Fact 2: Lt. Gov. Steve Pence was notably absent from Fletcher’s rotunda speech, has been silent for weeks after attacking Stumbo in May and June for alleged “political motivations” for the investigation, and refused public comment about Fletcher’s pardons. Before running for Lieutenant Governor with Fletcher in 2003, Pence was the U.S. Attorney for the U.S. District Court for western Kentucky and was the lead prosecutor in the BOPTROT scandal in the early 1990’s – when Joe Whittle was U.S. Attorney – that led to numerous bribery convictions against Kentucky legislators.
(Question 2: How long has Pence known about Stumbo’s alleged “preliminary conversations with the U.S. Attorney and the FBI?” Is this why he has obviously distanced himself publicly from Fletcher?
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Grand Jury Appearances
17% Would Vote for Fletcher’s Re-election – 73% Oppose Pardons
Stumbo Resigns From Merit System Task Force
McConnell and Pence Decline Comment on Fletcher
Fletcher Won’t Fund EBEC and Personnel Board Investigations
Fletcher Issues “Talking Points” to Local Officials
Nighbert Reverses, Requests Pardons
Six Democratic Legislators Discuss Impeachment
Contract Lawyers Investigating Doerting
Doerting Voted for Fletcher
Newspaper Editorial Comments