LawReader : OUR MAIN - LAW DIGEST INDEX : STEVE HORNER COLUMN - GOVERNMENT ISSUES IN KY. : JUDGE HORNERS ROUNDUP FOR WEEK OF APRIL 12, 2008

The process used by former Gov. Ernie Fletcher’s Transportation Cabinet to award some state highway contracts is the subject of a FBI inquiry, according to Apr. 9 stories by The Courier-Journal’s Tom Loftus, The Herald-Leader’s Ryan Alessi, and The Associated Press’ Joe Biesk. “The FBI has sought certain information and indicated that they are investigating the previous administration and asked for our cooperation; and we have given it,” said Gov. Steve Beshear’s Transportation Cabinet Secretary, Joe Prather, according to Loftus’s story. “I am willing to acknowledge that the investigation is ongoing, but beyond that we cannot appropriately comment.” Beshear unseated Fletcher last November in a 108,000 landslide.

FBI Special Agent Clay Mason, who runs the bureau’s Frankfort office, told Alessi that he could “neither confirm nor deny any ongoing investigation.” The probe seems to be centered on whether the cabinet’s confidential cost estimates for state highway projects were leaked to certain bidders before their bids were submitted. “They were asking if I gave it to somebody. And I didn’t have it. I didn’t,” said Marcelyn Mathews, a top engineer in the Department of Highways under the administrations of both Fletcher and Beshear, according to Loftus’s story. Mathews said that she was interviewed by the FBI about a month ago.

Loftus reported that he was unable to reach Fletcher’s cabinet secretary, Bill Nighbert, who currently is on state Senate Pres. David Williams’ (R-Burkesville) legislative staff. Alessi reported that Nighbert’s lawyer, Howard Mann, said that the FBI had not contacted Nighbert concerning this inquiry. Loftus also reported that Fletcher’s state Highway Commissioner, Marc Williams, would not confirm or deny whether the FBI had contacted him.

Nighbert was indicted in 2005 along with other Fletcher officials for violating the state merit system law by terminating, demoting, or transferring certain state employees covered by the merit system law to make way for the illegal hiring of Fletcher loyalists. Fletcher pardoned on Aug. 29, 2005 the entire group and anyone else who would be indicted in connection with that probe for illegal activities as of that date, but he did not pardon himself. He was finally indicted on May 11, 2006 on similar crimes, but his indictment was dismissed by then-state Atty.-Gen. Greg Stumbo after the trial court ruled that Fletcher’s trial would have to wait until after he went out of office. Stumbo reasoned that the trial would never be held because Fletcher would just pardon himself before he left office – like he did all the others.

Fletcher’s chief defender and cheerleader throughout the merit probe – Lexington lawyer Larry Forgy – immediately criticized the Beshear administration’s acknowledgement of the FBI’s highway contract investigation. “It’s unusual that the state government would be announcing an FBI investigation that no one on the record is talking about,” Forgy said, according to Biesk’s story posted by The Herald-Leader on Apr. 9 at its Kentucky.com. “It seems a little strange that they would announce that unless it did have a political tone to it.” In defending Fletcher, Forgy said, “When you get in the habit of stomping on somebody, it becomes a habit and they keep stomping.”

Even more “projects” (a/k/a pork) are on the way from state lawmakers – this as teacher layoffs are possible (see segment below) and as UK announced on Apr. 8 a 9% increase in tuition. A flat-lined K-12 (“SEEK formula”) state-supported public school appropriation and a 3% cut in higher education funding were mandated in the biennial state budget passed on Apr. 2 that will become effective July 1. The higher education cut was on top of a 3% cut in state university spending for the remainder of this fiscal year that Beshear ordered in December after he learned of a severe downward projection in state revenue for this fiscal year. Thus altogether, state university expenditures will begin July 1 at 6% beneath what they started at on July 1, 2007.

Alessi reported on Apr. 10 that state Senate Minority Leader Ed Worley (D-Richmond) confirmed that at least $25 million more would be in a second pork bill in addition to the supplemental (projects) budget bill passed by legislators on Apr. 2 as an inducement then for certain EKY lawmakers to vote for the main state budget with the cuts. Worley said that the revenue source for an additional $25 million would be coal severance taxes and tobacco settlement funds – both are which are statutorily required to be spent only for “economic development.” Williams and state House Speaker Jody Richards (D-Bowling Green) have defended the pork spending, saying that it is unrelated to regular “general fund” spending that is addressed in the main state budget. Lawmakers return to Frankfort on Apr. 14 and adjourn sine die the next day. They can override any Beshear vetoes of legislation that they have already passed or pass new legislation.

An education advocacy organization composed of most of the local school superintendents across the state is forecasting teacher lay-offs under the austere state budget passed by lawmakers. Such was a comment by group’s leader, Marion County Superintendent Roger Marcum, according to an Apr. 8 story by The Herald-Leader’s Raviya H. Ismail. “When we start cutting staff that means you are cutting services to kids,” Marcum said.

“Our leaders failed to deliver what children need and that’s very disappointing,” said Bob Sexton, executive director of the Prichard Committee for Academic Excellence, according to Ismail’s story. “It’s just racing in the wrong direction for Kentucky. We’re headed backwards fast.”

The state’s spending on K-12 education will decline by $2.1 million to $4.14 billion during fiscal year 2009 before rising from there by $86 million during the next year. However, with inflation forecasted at 4.1% during that period, inflation-adjusted education funding declines by $172 million next year and $171 million the next year, according to Marcum’s group.

State Education Commissioner Jon Draud bitterly complained about the legislature’s education appropriation saying it will be a “giant step backwards” for the state, according to Ismail’s story. Draud released an Apr. 10 analysis of the education cuts that was covered by Biesk in a story posted by The Cincinnati Enquirer on Apr. 10 at its nky.com. “This is not so much about financial support as it is about a philosophy that children are important and that their education should be our primary concern,” said Draud, a former GOP House member.

Brad Hughes, speaking for the Kentucky School Boards Association, said, “There are a lot of ugly decisions that will have to be made in the next 60 days,” according to Art Jester’s Apr. 11 story in The Herald-Leader. “I predict there will be more significant budget changes this year in May that will have a direct impact on classroom learning than at any time in recent history.”

The slight decline in funding during the next fiscal year results from the elimination or reduction of funding of programs such as professional development, extended school services, and safe schools, but basically public school education funding does not change over the next two years. Draud explained in Jester’s story that “safe schools” money has been used in many districts for alternative schools for students with behavioral, disciplinary or criminal problems that require them to be removed from the normal classrooms. Moreover, “the elephant in the room” is the current skyrocketing cost of fuel for school transportation, and lawmakers did not appropriate any additional funding for that contingency.

A major breach within the five-member state House Democratic leadership team doomed the legislative effort to authorize a casino gambling initiative, according to an Apr. 5 front-page story by The Courier-Journal’s Joseph Gerth. The two factions split up on major features of the bill itself and on a strategy to pass the version that was finally voted out of committee. Richards and his allies – Majority Leader Rocky Adkins (D-Sandy Hook) and Caucus Chm. Charlie Hoffman (D-Georgetown) – even replaced one committee member who voted in committee for the version that they didn’t want.

A casino bill version backed by Speaker Pro-Tem Larry Clark (D-Louisville) and Whip Rob Wilkey (D-Scottsville) would have guaranteed that some racetracks would have received casino licenses, but that feature was stripped out by the Richards faction before the bill was voted out of committee. But the modified bill was never called for House floor action because it was obvious that this bill could not get the necessary 60 votes for House passage, because that majority is necessary to vote out a proposed state constitutional amendment subject to a state-wide voter referendum.

Wilkey told Gerth that the leadership split revolves around “the obsession that people (in the House) have with next year’s leadership races…I begged people, when we started this session, to leave next year’s leadership races till after the session because I knew they would become a distraction and an impediment to working together to get things done. And they have.” In January, all five two-year House leadership terms will expire, and there will be elections among members to fill the positions. The same leadership election process will occur in the Senate among their members.

Wilkey said that most of the blame is on Richards because of his “paranoia” that Wilkey will again challenge Richards for re-election as Speaker. Wilkey almost unseated Richards in January 2005 with some reports saying Richards was re-elected Speaker over Wilkey by only one vote in the House Democratic Caucus.

Richards and Adkins denied that next year’s leadership races were involved in the current legislative session, and said that the divisions among the five leaders relate to issues and not to personalities. “It’s on various issues. It’s nothing personal. These are my friends,” Richards said. “I haven’t seen evidence of any of that stuff,” Adkins said.

Worley characterized the House leadership team as “dysfunctional.” Worley said, “That leadership is so divided and so split that there is a yearning in state government for somebody that can put it together and make it work.”

One of the most glaring illustrations of the “dysfunction” was the Apr. 2 vote against the conference committee’s budget bill by House Appropriations and Revenue Chm. Harry Moberly (D-Richmond), even though Moberly was one of the bill’s chief architects in the conference. Moberly objected to a deal cooked by former Majority Leader Greg Stumbo (D-Prestonsburg) and Williams that became a supplemental bill which appropriated funds for various projects in EKY lawmakers’ counties in exchange for their favorable votes on the budget. Moberly attacked the Stumbo-Williams hatchling as a “diabolical deal with the devil” during a House floor speech, and said lawmakers were sacrificing K-12 education for their own re-election campaigns while state educational funding was hemorrhaging.

US Sen. Hillary Clinton (D-NY) is maintaining her wide lead in Kentucky over US Sen. Barack Obama (D-IL), according to a Preston-Osborne poll released on Apr. 8. Clinton led 56-25 among 600 frequent voters in a poll with a 4% margin for error. Preston-Osborne is a leading state public relations and marketing firm based in Lexington. SurveyUSA’s state poll released on Mar. 31 with a 4% margin for error indicated Clinton ahead by 58-29. Obama supporters say that they aren’t worried because their candidate has usually been down in the polls in most states until he started campaigning there, according to a story by Alessi posted on Apr. 8 at The Herald-Leader’s polwatchers.typepad.com. The Kentucky primary will be held on May 20.

Another indication – of just how close the Democratic Presidential race really is – was revealed in Gerth’s weekly column on Apr. 7 who quoted nationally quoted Dr. Larry Sabato’s recent piece on “Who would be leading the Democratic presidential primary if the Democrats awarded convention delegates on a winner-take-all basis like the GOP?” Sabato calculated that Clinton would be leading 1,427-1,260 over Obama. She is currently behind by about 125 delegates. A count by one source will vary with another source apparently because there is so much fluidity among super-delegates who are not pledged to vote in accordance with their state caucus or primary voting results.

The quote above is how WHAS-TV’s Mark Hebert’s Apr. 1 story at his blog at whas11.com characterized the results of SurveyUSA.com’s first poll in this year’s Democratic US Senate race that indicates that multi-millionaire Louisville businessman Bruce Lunsford is way ahead with 42% in a crowded seven-candidate field. The poll included interviews with the 572 Democrats who responded, and has a 4.1% margin for error. Two of the six other Senate candidates are making high-profile efforts with paid staffs – millionaire Louisville businessman Greg Fischer and Prospect pain specialist Dr. Michael Cassaro. David Williams of Glasgow – a perennial candidate with the same name of the GOP state Senate President – has more support (11%) at this point than either Fischer (6%) or Cassaro (4%).

SurveyUSA’s web site editor posted the following comments about this race: “In a Democratic Primary in Kentucky today, 03/31/08, 7 weeks till the votes are counted, businessman Bruce Lunsford has more support than his nearest 6 challengers combined, according to a SurveyUSA poll conducted exclusively for WHAS-TV Louisville and

WCPO-TV Cincinnati. Today, it’s Lunsford 42%, frequent candidate David Williams 11%, and 5 others in single digits. Lunsford receives no less than 39% of the Democratic vote in every region of the state. The winner of the 05/20/08 closed Democratic Primary advances to face Mitch McConnell, the Republican leader of the U.S. Senate, who is running for his 5th term.”

Louisville lawyer and withdrawn US Senate candidate Andrew Horne endorsed Lunsford’s candidacy on Apr. 3 at a Frankfort press conference. “It’s so important to beat Mitch McConnell and he’s the only (candidate) who is serious enough about it to do it,” Horne said, according to Gerth’s Apr. 4 story.

Horne announced on Feb. 11 via a web posting on pageonekentucky.com that he was quitting his candidacy, but he filed his withdrawal certification too late to have his name removed from the May 20 Democratic Primary ballot. Horne was the first major candidate to declare for the Democratic nomination on Dec. 13 before being later joined by Fischer, Cassaro, and later by Lunsford who got in the race on the Jan. 29 filing deadline.

Horne, a veteran of both the 1991 Persian Gulf War and the current Iraqi conflict, lost a bid for the 2006 Democratic nomination to oppose then-US Rep. Anne Northup (R-KY3). Although filing first also in that race, Horne lost to a much better known and better funded opponent – US Rep. John Yarmuth (D-KY3) who first defeated Horne by 22% in the primary and later upset Northup in the November election by 2.4% (about 5,900 votes).

Fischer campaign manager A. J. Carrillo downplayed Horne’s endorsement via a press release: “Horne’s criticisms of Lunsford as recently as February speak for themselves; as does the fact that national groups and local grass-roots clubs that backed Horne, now are with Greg.” Gerth reported that he was unable to reach Cassaro’s campaign for a statement.

Lunsford’s first TV ad began to run in most Kentucky TV markets on Apr. 4, according to an Apr. 5 story by Alessi. Lunsford charges that “Washington just argues” and “Washington’s not listening.” Alessi reported in an Apr. 10 polwatchers story that Lunsford aired his second ad on Apr. 10 with Lunsford asserting that “Washington has changed” McConnell, and “After 24 years, it’s time for a change.”

Alessi reported that Fischer previously said that his campaign would start TV ad’s “probably about a month or so before the election…People will see a clear contrast between me and Bruce Lunsford.” Cassaro spokesman Dr. Ted Shlechter said that Cassaro’s TV would go up in May.

Campaign finance reports are due by April 15. For his most recent Dec. 31 quarterly filing, McConnell reported that since his 2002 re-election he had raised $10.89 million, and had over $7.3 million on hand in banks. Lunsford spent almost $14 million of his own funds in failed races for the Democratic nomination for Governor in 2003 and 2007. A “millionaire’s amendment” in US campaign finance law allows contributors to non-millionaire candidates to triple (from $2,300 to $6,900) their maximum contributions if the millionaire opponent self-funds beyond $559,000 what the non-millionaire has given his own campaign, according to Alessi’s Apr. 11 story at polwatchers. Thus, McConnell – who will not give much if anything to his campaign – is thought to have the ability to go back to his wealthy contributors who have given the maximum amount so far, and ask for much more money if Lunsford wins the Democratic primary and goes into his own personal pocket to finance most of his campaign.

On the third day following Lunsford’s TV launch, McConnell began running an ad in the Lexington and Louisville markets touting his attention to the health concerns of Paducah nuclear gaseous diffusion plant workers. McConnell claims that he pushed for “compensation for sick workers” and for free health-related costs such as cancer screenings, according to Alessi’s story posted on Apr. 7 at polwatchers. McConnell ran ads continuously across the state from soon after the Nov. 6 election until the end of 2007, but hadn’t been up so far this year until Apr. 7 with the new Paducah ad.

The Mar. 20 retirement announcement by US Rep. Tom Reynolds (R-NY) is the most recent in a long string of US House Republicans who have decided to pass on re-election this year – a situation that keeps depressing their party’s hopes of recapturing control of the chamber that until 2006 they had held since 1994. US Rep. Ron Lewis (R-KY2) is among this group. Reynolds is actually the 27^th Republican member to make plans to say good-bye if you count former House Speaker Dennis Hastert (R-IL) who resigned last December and whose seat was turned over in a shocking upset to Democrat Bill Foster. Foster won a special election in the long-time GOP-held district in suburban Chicago.

Foster’s election now gives Democrats a 233-198 majority with four seats currently vacant. Non-partisan analysts suggest a Democratic pick-up on Nov. 4 of between 10 to 20 seats, according to a story by The Associated Press’ Charles Babington that was published on Mar. 21 by The Courier-Journal. Babington reported that at this time only seven US House Democrats have announced that they are quitting.

Democrats are also rejoicing about their new-found success in fund-raising for their Democratic Congressional Campaign Committee. The committee’s most recent report indicated that they had about $34 million on hand – far ahead of its GOP counterpart, the National Republican Congressional Committee, that reported about $4 million on hand. Back when the Republicans had the majority in the chamber, they, too, far out-paced the Democrats in fund-raising.

“A budget that essentially tells Kentuckians that cheap cigarettes are more valuable than affordable tuition and that we should cheer when the cost of going to college rises by less than a double-digit percent…

“Still, lawmakers should be held accountable for shortchanging Kentucky’s needs and shifting their taxing duties onto everyone from college students to the nurses and pharmacists who’ll have to pay higher fees to make up for the legislature’s money grab….”

“…this is such a nasty, pain-inflicting spending plan that it might have been voted down in the House had it not been for a separate package of projects cobbled together with a big assist from Senate President David Williams, who knows how to exploit the projects addiction that is as strong as a crack habit for many House members.

“But the emergence of a projects package in a year when an austere budget stomps all over education and human services with old-fashioned metal golf spikes led to a weird, even bizarre, set of circumstances on the House floor….”

“…It almost always comes down to the budget. That’s usually the last big matter settled. The budget is every year’s big deal – lawmakers’ true ‘moral document,’ as Rep. Joni Jenkins (D-Shively) said in a speech Wednesday night.

As Jenkins put it, lawmakers can make speeches about God and the importance of religion – which they routinely do – but in the end it’s the budget that spells out their values. ‘This is what our priorities are,’ she said….”

“Probably. What is certain is dysfunction among Democrats. Their wailing vented frustration over the fact that the legislature’s top Republican is the single most influential person on the budget – the state’s ‘value document,’ as Democratic Rep. Kathy Stein of Lexington called it in an unusually instructive floor debate.

“With the help of former and perhaps future House Democratic leader Greg Stumbo, Republican Senate President David Williams got House Democrats to sell their party principles for a mess of pottage and pass a budget that will set the state back – and allow Republicans to preserve for this year’s elections one of their few political advantages these days: the anti-tax banner.

“That’s an easy banner to wave, given Kentuckians’ allergy to taxes. Waving the banner that says ‘Taxes are the price we pay for civilization,’ as Justice Oliver Wendell Holmes put it, is more difficult. It takes political strength and savvy to make that longer, heavier banner fly, and Kentucky Democrats have neither – except when it comes to their individual, self-serving skills that abandon the public interest….”

“Republicans in the Kentucky General Assembly have conflated the concept of conservatism with opposition to any and all tax increases. This is unfortunate and incorrect. Properly understood, conservatism is an attitude of realistic prudence toward politics and society, not a rigid position on any single issue.

“The most recent manifestation of this Republican misunderstanding is in the apparent opposition of every GOP representative and senator to an altogether sensible, and indeed much too modest, increase in the cigarette tax. Sen. Gerald Neal (D-Louisville) was right in saying that no legislator has articulated a good reason for this resistance…

“Kentucky formerly featured more philosophical diversity among its Republican politicians. Many will argue that is the very reason why the GOP was so long in the minority. Perhaps aggressively pairing an inflexible anti-tax stance with fundamentalist Christian positions on social issues is the key to a renaissance of Republican political success.

“But nothing in the conservative intellectual tradition requires any such linkage. And little, if anything, in Kentucky’s quality of life or future prospects proves that the commonwealth is better off because of it.

“This stagnant state is in desperate need of a new ‘third way’ alternative to its current partisan political gridlock. Pragmatic Republicans with the courage to reclaim real conservatism from the misguided ideology that has consumed it can point the way.”

“Critics of the projects package that purchased a sufficient number of votes to win House passage of an ugly budget last week might be tempted to bring the P-word into play, as in that staple of American politics known as pork. They should resist this temptation, at least in regard to the projects we've seen so far.

“True, several of the single-county coal severance projects authorized by House Bill 410, the part of the package that has already won legislative approval, bear the distinctive flavor of the other white meat. But for the most part, they fall short of a hearty helping of pork.

“Viewed in that fashion, the pork taste gets stronger. But viewed as individual projects, they’re still bacon bits: $1,475 here, $1,577 there, $1,679 over yonder. Lots of appropriations for $2,000, $2,500, $3,000….”