Tuesday, August 30, 2005
Corruption in Kentucky: Republican Governor decides he knows more than a Grand Jury: Then refuses to tell them what he knows, and Pardons 9.
By Mark Pitsch and Tom Loftus
FRANKFORT, Ky. -- Gov. Ernie Fletcher used the power of his office yesterday to pardon nine current or former members of his administration who were indicted in an investigation of alleged illegal hiring.
Fletcher also said he would not pardon himself or testify today during his appearance before the grand jury, which is investigating whether state jobs were filled on the basis of politics, not merit.
"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," he said.
The pardon Fletcher signed covers officials indicted so far and "any and all persons who have committed, or may be accused of committing, any offense up to and including the date hereof, relating in any way to the current merit system investigation."
In his remarks, Fletcher compared the severity of misdemeanor and felony charges to illegal fishing, dismissing the investigation as "a political tool of Greg Stumbo."
Speaking during an address before about 150 supporters at the Capitol, Fletcher said "at no time was there a cynical scheme to displace thousands of hard-working state employees."
"Even though I am very disappointed at the abuse of our justice system throughout this entire affair, I am ready to stand up to this misguided display of prosecutorial misconduct," Fletcher said.
While he said he would appear before the grand jury, he said he "shall not, however, speak before this body." He did not say if he would invoke his Fifth Amendment right against self-incrimination.
"For nearly two years now I have worked hard every day to do the best job I can as your governor. And I have never -- let me repeat, never -- knowingly violated any laws while doing so," Fletcher said. "My conscience is clear."
Stumbo later issued a statement saying the evidence of wrongdoing gathered in the investigation is "overwhelming."
"His administration cannot afford to allow the evidence to come out in court," Stumbo said. "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."
Stumbo said at a news conference after Fletcher's announcement that he may challenge whether the governor can pardon people who are not yet charged.
Stumbo also said he has been in touch with the FBI and that the grand jury may have evidence that federal crimes may have been committed.
The pardon would not cover any federal charges.
During Fletcher's address, he was accompanied by his wife, Glenna Fletcher, and his cabinet secretaries, including Acting Transportation Secretary Bill Nighbert, who was facing three misdemeanor counts.Fletcher compared the indictments to "noodling," the sport of catching fish by hand, without a hook and bait.
"Some of the indictments are the equivalent of conspiring to commit noodling out of season. And the one person charged with felony indictments is accused of the legal equivalent of covering up noodling out of season," he said.
Douglas W. Doerting, the former transportation agency worker whose complaint triggered the investigation, said in an interview that Fletcher inaccurately portrayed the severity of the crimes.
"It has been widely acknowledged that the administration's hiring practices have had an adverse impact on minorities and veterans as well as other candidates for state employment," he said.
"Unfortunately, the governor failed to offer even a hint of an apology for the scandal or those adversely affected by the administration's political hiring practices.
"Pleading the Fifth Amendment to avoid self-incrimination will undoubtedly leave many Kentuckians wondering about the governor's role in the scandal. If, in fact, the governor has done nothing wrong, what harm could result from going before the grand jury and providing the unvarnished truth?" Doerting asked.
The announcement last night added drama and political intrigue to the investigation into allegations that the Fletcher administration illegally hired, fired, transferred, promoted and demoted civil service workers on the basis of their political affiliation.
Stumbo opened the investigation in May after Doerting came forward with e-mails and other evidence, and the special grand jury indicted nine current and former administration officials on a total of 48 misdemeanor and 22 felony charges.
Prosecutors say the administration operated a "corrupt political machine" that illegally placed Fletcher supporters in civil service jobs.
In his remarks yesterday, Fletcher again acknowledged that his administration made personnel mistakes.
"Some of our senior executives made management mistakes, including inadequate oversight of young managers," he said. "Some of our overeager young managers made mistakes in judgment that in the age of e-mails is evident for all to see."
"For those mistakes, the buck stops here, no matter the political consequences," Fletcher said.
He said his administration won't escape accountability if abuses of the merit system are found by other bodies conducting investigation -- the state Personnel Board and the Executive Branch Ethics Commission.
And he said he wants Kentucky voters to have the final say on his fate.
"Some political experts have said that this action could very well ruin my political career. I'll leave that in the hands of you, the Kentucky voters," Fletcher said.
Nighbert couldn't be reached for comment last night.
Basil Turbyfill, Fletcher's personnel adviser who was facing a single misdemeanor count of criminal conspiracy, declined to comment.
Dick Murgatroyd, the former deputy transportation secretary who is now Fletcher's deputy chief of staff, said he wasn't making a statement.
Cory Meadows, a transportation executive director who was facing six misdemeanors, also declined to comment on the pardons.
Jim Adams, transportation deputy secretary, also declined to comment when reached at home.
Darrell Brock, the state GOP chairman, praised Fletcher's "bold leadership."
Dan Druen, the former transportation administration services commissioner; Tim Hazlette, the current transportation administrative services commissioner; and Bob Wilson, deputy personnel secretary, could not be reached for comment.
Mike Duncan, former deputy inspector general for the Transportation Cabinet who indictments allege was fired because he had supported Ben Chandler, Fletcher's Democratic opponent for governor in 2003, said he was more upset by Fletcher's comments than the fact of the pardons.
"I think it was terrible that the governor compared this to noodling. People have lost their jobs and been demoted. To make light of that is horrible. These charges are serious," Duncan said.
Scotty Fugate, a former transportation manager in Breathitt County who was transferred illegally to force his retirement according to the indictment of Murgatroyd, said, "I'm not upset I guess because I expected this. I think the governor was concerned about how much more would come out if the investigation continued. I don't believe he could stand that politically."
Scope of the pardons
Fletcher spokeswoman Carla Blanton said anyone indicted in the future by the grand jury won't have to apply for a new pardon.
"The governor has not seen anything that would lead him to believe that anyone willfully violated the law, and unless and until that changes, the documents filed today speak for themselves," Blanton said.
Asked if Fletcher would uphold the blanket pardon if evidence showed a willful violation of the state hiring law, Blanton called the question "a crazy hypothetical."
Legal experts said Fletcher was on solid legal ground, even if his action is unusual.
Daniel T. Kobil, a professor of law at Capital University Law School in Columbus, Ohio, said granting pardons to those indicted and those who may be indicted in the probe is "highly unusual for a governor. I can't think of anything like it in recent memory."
Don Cetrulo, a Lexington lawyer who is the former director of the Administrative Office of the Courts and of the Legislative Research Commission, said the governor does have the authority to pardon a "class" of individuals even though the identity of such persons may not yet be known.
Some experts said anyone pardoned would be prevented from invoking his or her Fifth Amendment right against self-incrimination if they are called before the grand jury again.
"If an individual is pardoned, he could not be tried for that crime again and could not claim Fifth Amendment right," said Bill Johnson, a Frankfort defense lawyer.
Paul Salamanca, an associate professor of Law at the University of Kentucky College of Law said, "In general, a person in such a circumstance would be compelled to testify."
Editor's Note: The reaction.
Republican Larry Forgy said : "I predicted that he would do this because Skipper knows so much on him that he either had to pardon him or drown him. You don't pardon innocent men. It proves the rule of law doesn't apply to a Democrat in the governor's race." Of course the ever honorable Larry Forgy said this when Paul Patton pardoned 4 aids in 2003.
Forgy has now changed his tune: This time he said Fletcher's move frees administration officials who have been "pinned down by hostile fire," allowing them to focus on issues besides the investigation.
"The people of this state are spending millions and millions of dollars in this state to improve their lives, and they don't want to see the government bogged down in a circular leg-gnawing,"
Elaine Daniels, a former engineering technician who inspected transportation projects, said the sight of indicted officials going free would incite more fear among state employees.
"It makes me feel very angry because, I mean, we are human beings just like anybody else," said Daniels, who retired Aug. 1 after 28 years in state government. She said she left because she no longer wanted to fight with superiors over a discrimination complaint she filed.
Louisville resident Ernest McKissic is another former transportation worker who also recently quit with a discrimination complaint pending. He said average people don't get away with other misdemeanors such as smoking marijuana.
"Since (Fletcher) thinks a misdemeanor is something you're allowed to do, he ought to go down to the jails," McKissic said. "He needs to look at all the black people in the jail and think about pardoning them."