By John Schaaf, Executive Director, Kentucky Legislative Ethics Commission
(Permission is granted for KPA member newspapers to use this op-ed with proper credit to John Schaaf and the Kentucky Legislative Ethics Commission.)
The Kentucky Legislative Ethics Commission (KLEC) recently addressed a case in which it recognized the constitutional authority of the General Assembly in election contests for legislative races. Here’s background information on the Commission, and discussion of its decision in the case:
KLEC is the only ethics commission of its kind in the United States: a bi-partisan, citizen-run commission with jurisdiction over an ethics code that applies to legislators, lobbyists, and all businesses and organizations that employ lobbyists. In every other state, legislators are members of the ethics panels that deal with complaints against their colleagues.
KLEC’s independence and its bi-partisan membership guarantee that the public has a higher level of confidence in the group’s ethics decisions, as they are guided by the law, and not by political connections or legislative collegiality.
It’s noteworthy that in the 26 years since Kentucky adopted the ethics law and created the independent KLEC, not one legislator has been indicted or convicted in state or federal court for misusing his or her legislative office. This stands in remarkable contrast to many other states, where legislators are regularly resigning or going to prison in the wake of serious corruption.
In the recent KLEC case of Glenn v. Osborne, the law was clear, and on two separate occasions (in January and again in April), KLEC Democrats and Republicans agreed, without a dissenting vote, that no violation of the ethics law occurred.
The case involved an attorney for a legislator-elect (Glenn) alleging that the House Speaker (Osborne) used legislative staff to prepare an election contest case against the legislator-elect. The attorney said such staff work was a use of public resources for partisan political campaign activity.
However, the Kentucky Constitution, statutes, and case law are crystal clear on these key points:
Election campaigns end on election day, and in the case of legislative elections in which the results are contested, each House of the General Assembly has the sole authority to determine who will be seated in that chamber; and
Therefore, any work done by legislative staff on post-election contests and recounts in the House or Senate – a constitutional responsibility specifically assigned to the House or Senate – does not violate the ethics law, as that work is done in pursuance of those constitutional responsibilities, and as authorized by state statutes.
At its January meeting, KLEC dismissed Glenn’s complaint because each House of the General Assembly, and the legislators and staff working on its behalf, has exclusive and complete power over the resolution of election recounts and contests, pursuant to Section 38 of Kentucky’s Constitution. In April, KLEC denied a motion to reconsider the earlier decision.
This case is similar to ethics complaints that were brought against two previous House Speakers (Greg Stumbo in 2014 and Jody Richards in 2008). In each of those cases, a complaint alleged the Speaker violated the ethics law in handling impeachment petitions filed by citizens. In those cases, as in the recent case, the complainants offered no substantive evidence beyond speculation to support their allegations.
As in the Osborne case, KLEC determined that Stumbo and Richards were exercising constitutional authority, so the actions of all three Speakers were “authorized by law”, and were not violations of the legislative ethics law.
Interestingly, there have been a fair number of legislative election contests filed in the House and Senate since the 1891 adoption of Kentucky’s Constitution.
Over the years, Kentucky courts have drawn a bright line between pre-election activities, which are “campaign activities”, and actions after the election.
An election contest has been described as any action taken after an election to challenge the election’s results, as courts have held that “An election contest obviously is a post-election procedure, involving an election that has been held, as distinguished from a pre-election suit to determine whether a person may be voted on as a candidate.” Fletcher v. Wilson, 495 S.W.2d 787, 791 (Ky. 1973).
Thus, Kentucky law makes a distinction between the election, during which campaign activity occurs, and the post-election period in which an election contest or recount may be held.
In the days before the General Assembly employed many lawyers, the House and Senate approved the use of public funds for both the contestant’s and contestee’s legal fees, upon request of the parties, and the courts acknowledged that this is a proper use of public funds. Mercer v. Coleman, 14 S.W.2d 144 (Ky. 1929).
In Hallam v. Coulter, the court stated that “according to parliamentary custom”, General Assembly appropriations could be used to pay any expenses borne by the parties to a legislative contest action, either by a successful or unsuccessful party, in a legislative contest case before the House. 73 S.W. 772, 774 (Ky. 1903).
In this case, any activities in which House leaders are alleged to have engaged involving a recanvass or other pre-contest or recount processes, or actions in a recount or contest, were done pursuant to Constitutional and statutory authority, so they are “authorized by law”, as allowed by the ethics code.
The actions complained of were not for “private gain” or “partisan political campaign activity”, as prohibited by the ethics law. Rather, they are specifically provided for in the Kentucky Constitution and statutes for the post-general election decision of who is to be considered a properly seated member of the House.
The citizen-run, bi-partisan Legislative Ethics Commission unanimously agreed, and that makes it a bright day for ethics and the law in Kentucky.