Probable Cause

Henry County, Kentucky.  Are you interested in free speech? By which I mean free political speech, and not the right to publish or broadcast obscenities. Are you a lawyer, perchance, and jealous of your right to criticize political decisions by other members of the bar?

Then you might be interested in this Kentucky case, in which attorney and former state senator John M. Berry Jr. is defending his reputation after criticizing a decision made by Kentucky’s Legislative Ethics Commission (LEC).

What is now a federal lawsuit over Mr. Berry’s free speech rights began as a complaint against the current President of the Kentucky Senate, David L. Williams. Sen. Williams is a Republican from Burkesville, and is the likely Republican candidate for governor this fall.

In May 2007 he signed a letter inviting a group that included numerous lobbyists to a fundraiser planning luncheon. He spoke at that meeting, and his aides gave out a Commitment Form asking those attending to check off the various amounts (up to $50,000) they were willing to help raise for upcoming Kentucky Senate campaigns. Ten lobbyists signed the form promising fundraising help.

However, lobbyists cannot legally give money to Kentucky legislative campaigns, or solicit donations for legislators at a legislator’s direction.

Yet this was no intern’s mistake: The aides asking for donations were Mr. Williams’ chief of staff Becky Harilson and his policy advisor Brad Metcalf. As noted above Mr. Williams was also present at the planning lunch, and his name and title were prominently used on all materials.

Nonetheless, after Richard Beliles of Common Cause of Kentucky complained to the Legislative Ethics Commission, the LEC found no fault had been commited by either the senator or his staff. No money had actually been sent, and according to reports (the hearing was closed), the senator and his staff appear to have denied knowingly or intentionally breaking the law. The commission accepted these denials, found that it was the staff and not the senator who had erred, and said further that the staff had erred “innocently.”

Chairman George Troutman did tell reporter Ronnie Ellis of CNH1 that the matter was “sloppily handled” and “some very bad things could have happened.” But he also said (in the reporter’s phrasing) that “there was no evidence of any intent to violate the law and the statute clearly requires intent.” 

Mr. Berry, a Democrat who was a state senator from 1974-1981, disagreed with the LEC’s decision, and on October 5, 2007 he wrote a letter to the commission in response. “It is very unlikely that a legislator would ever come before the Commission and confess guilt,” he wrote. “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.”

John Berry also did not like the fact that he and his brother, Wendell Berry, Mr. Beliles and the media had been barred from the hearing when Sen. Williams was not.

“The exclusion of the pub[l]ic and the media [from the LEC's hearing] was enough to arouse suspicion,” he wrote, “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.”  

These criticisms did not sit well with Paul Gudgel, a member of the Commission and a retired Court of Appeals chief judge, who turned the tables on Mr. Berry by making his own complaint, this time to the Kentucky Bar Association.

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