JUDGE HORNER’S ROUNDUP FOR WEEK OF MAY 3, 2008
Williams Claims Beshear’s Veto of Highway Bill Was Late
Another dust-up between the titular heads of the two major political parties in Frankfort results from Democratic Gov. Steve Beshear’s Apr. 28 veto of a road funding bill passed by the General Assembly late on Apr. 15, but not delivered to Beshear for his consideration until Apr. 16. State Senate Pres. David Williams (R-Burkesville) contends that Beshear should have exercised his veto by Apr. 26, that the veto is ineffective, and that a court challenge may be the next step, according to an Apr. 29 story by The Herald-Leader’s Jack Brammer.
The issue is the interpretation of the state constitutional provision on gubernatorial vetoes. Section 88 reads in part as follows: “…If any bill shall not be returned by the Governor within ten days (Sundays excepted) after it shall have been presented to him, it shall be a law in like manner as if he had signed it, unless the General Assembly, by their adjournment, prevent its return, in which case it shall be a law, unless disapproved by him within ten days after the adjournment, in which case his veto message shall be spread upon the register kept by the Secretary of State….” (italicization added by columnist)
Beshear relies on the first italicized clause above that he received the bill on Apr. 16 and had 10 days (excluding Sundays) to act on it – up to and including Apr. 28. Williams relies on the second italicized clause above and contends that the trigger date was Apr. 15 – the day that the bill was passed – and that Beshear only had until Apr. 26 to exercise his veto. Williams claims that the second clause trumps the first clause because the constitution fixes the date of adjournment at Apr. 15.
Assuming the veto stands, Williams also adds this contention to the mix – that Beshear cannot spend any money on roads under the rationale that the funding has not been appropriated by the General Assembly. Williams said that he is in talks now to decide who should file the litigation contesting Beshear’s veto. “There’s no doubt that someone will challenge this unconstitutional act that the Governor has taken,” Williams said, according to an Apr. 29 story by The Courier-Journal’s Marcus Green and Stephanie Steitzer.
One of the bitter harvests of the extremely contentious legislative session that ended last month was the passage of a highway appropriation bill at the last minute on Apr. 15 – not when the regular state budget bill was passed on Apr. 2. The neglect of lawmakers to pass the road bill earlier now precludes them from an opportunity to over-ride Beshear’s veto.
Cowgill Opts to Withdraw as CPE President
Amid a firestorm of criticism by Beshear and major newspaper editorial pages, Brad Cowgill announced on Apr. 29 that he was giving up his effort to become the permanent president of the Council for Postsecondary Education (“CPE”). Cowgill said in a press release that, if he stayed on, “It would unduly harm Kentucky’s postsecondary education reform efforts, and the positive momentum that has been achieved to this point.” Cowgill was former Gov. Ernie Fletcher’s state budget director when he was appointed CPE’s interim president on Sep. 1. Ten of the 12 CPE members voted on Apr. 14 to make Cowgill its permanent president while two abstained. – this without a statutorily-mandated national search.
Beshear, who derailed Fletcher’s re-election bid in November, immediately attacked the decision by saying that a national search in compliance with law should be conducted, that Cowgill should not be considered for the position, and that no actual contract should be executed with Cowgill. CPE chairman John Turner agreed to hold off on signing a contract with Cowgill until legal issues were resolved. The new permanent president will be paid $351,000, according to an Apr. 28 story by The Herald-Leader’s Art Jester.
Before taking over as interim president on Sep. 1, Cowgill’s only professional experience in education was as a contract lawyer for the Fayette County Board of Education and as an advisory committee member for the Lexington Community College. The “father” of the landmark 1997 higher education reform act, former Gov. Paul Patton, weighed in on the controversy. Patton said that the “obvious intent of the law” is for the council president to be “one of the most highly respected positions in higher education in the nation.” Patton, who was Governor from 1995 to 2003, said that Cowgill does not have the background life experiences for the position, according to Jester’s story. “Under the circumstances, Mr. Cowgill does not fit what is intended or needed,” Patton said. “He doesn’t have a background in education administration and does not have the knowledge of how universities really operate.”
At Beshear’s request, Atty.-Gen. Jack Conway issued an Apr. 24 legal opinion stating that the CPE had not conducted a legally required national search and that its action to permanently hire Cowgill was invalid and in violation of law. Conway, then an aide to Patton, helped to write the 1997 higher education reform act before it was passed during a special session that year of the General Assembly. The act defined precise roles for UK, UofL, and all the regional universities so that they would not have expensive, overlapping research programs and similar specialized degree programs. The measure also stripped the community colleges and technical schools away from UK – a very controversial issue – to more fully define and perfect their focus. The statute sets up the CPE to be the coordinating overseer to insure that the institutions achieve their goals and to preclude the institutions’ deviation from their assigned roles.
Beshear hinted at possible options if Cowgill had not left or if the CPE had not rescinded its action to hire him as its permanent president. Such options included Beshear’s request for all CPE members to resign, or, in a “worst case scenario,” the actual abolition of the CPE and the re-creation of a substitute body by his own executive authority.
The CPE voted on Apr. 30 to conduct a national search to hire a permanent president. Cowgill also said that he will leave his post as interim president effective immediately, according to Jester’s May 1 story. It is unclear who will take over as interim president during the national search.
A Republican member of the state Personnel Board originally appointed by Fletcher and re-appointed by Beshear, was not re-confirmed by the Republican-controlled state Senate in the legislative session recently concluded. Louisville lawyer Jackson Andrews said that he had “no earthly idea” why he was unanimously confirmed on his first appointment by Fletcher and not re-confirmed on his re-appointment by Beshear. However, Steitzer seems to “add up 2 and 2 and get 4” to explain why in her story published on Apr. 25.
Andrews made two key votes last year diametrically opposed to the views of Bill Nighbert – one of Williams’ key legislative assistants. Andrews’ first vote was against investigating the original circumstances surrounding the hiring of Transportation Cabinet inspector Mike Duncan. This move to probe how Duncan was hired was initiated by the Fletcher administration as a defensive tactic after Duncan – who was fired by then-cabinet Sec. Nighbert on May 13, 2005 – filed an appeal with the Board and later filed a lawsuit to protest Nighbert’s action. Eventually the board found that Duncan was legally hired.
Andrews’ second vote was to reinstate Duncan to his job after the board found that Nighbert had illegally fired him. The final settlement of both the administrative and court actions resulted in a $369,000 award to Duncan. When asked by Steitzer whether his votes on the Duncan matter could have produced the Senate’s failure to re-confirm him, Andrews said, “I think you would have to ask David Williams that question. I’m not going to speculate about that.”
Williams issued a press release saying that Andrews “did not have the support to be confirmed.” Beshear spokeswoman Vicki Glass said that the Governor “has no way of knowing if it was political or not.”
Duncan’s name was on a “hit list” that included the names of merit system employees who were accused of having supported Fletcher’s 2003 Democratic opponent, then-state Atty.-Gen. Ben Chandler. Dan Druen, a cabinet official in 2005, testified that the “hit list” document was shown to Fletcher at a meeting in Fletcher’s office in April 2005 and that Fletcher ordered the firings, demotions, and transfers called for in the document to be executed against the specified employees. Druen said that Nighbert and Basil Turbyfill, then an aide to Fletcher, also attended the meeting and were witnesses to Fletcher’s action.
State Rep. Greg Stumbo (D-Prestonsburg), then the state Attorney-General, commenced an inquiry on May 13, 2005 – the same day of Duncan’s firing – on whether Fletcher and his officials were illegally interfering with the statutory rights of state merit workers who have a sort of civil service protection. Fletcher and 14 of his administration’s officials were indicted by a special Franklin County Grand Jury for political interference into the state merit system during the scandal. They were all accused of allowing politics to influence the termination, demotion, or transfer of existing state merit employees, and to hire Fletcher loyalists to the merit system jobs to be opened up. Fletcher pardoned the 14 shortly after they were charged in the scandal, but never pardoned himself. He, too, was finally indicted during the 16-month criminal probe, but the charges against him were finally dismissed on Aug. 24, 2006 after the trial court decided that Fletcher’s criminal trial would have to wait until he left the Governor’s office. Stumbo, whose office led the prosecution, reasoned that it was pointless to continue the prosecution because Stumbo expected that Fletcher would just pardon himself if he were defeated for re-election or, if he were re-elected, at the end of his second term.
The scandal became the under-lying reason for Fletcher’s over-whelming rejection by the state’s voters last November as he became the first Governor in the state’s history to seek re-election and to fail.
Beshear Approval Falls to 38%
SurveyUSA.com reported on Apr. 24 that Beshear’s approval rating has declined to 38% – completing drops of 8% from Mar. 17 and 24% from Jan. 7. The poll indicates that 54% of Kentuckians disapprove of the job that the Governor has done so far and that 8% have no opinion. The poll – co-sponsored by Cincinnati’s WCPO-TV and Louisville’s WHAS-TV – covered responses by 600 Kentuckians from Apr. 11-13 and carries a 4.1% margin for error.
All the news for Beshear since he was sworn in on Dec. 11 has been bad. First, he found the state treasury in serious condition and ordered higher educational institutions and virtually all state agencies to reduce spending by 3% through June 30. Next, he invested a huge amount of political capital into a failed effort to retain a southeastern state Senate seat in the Democratic column after it was vacated by the elevation of its former occupant, Dr. Daniel Mongiardo, to the Lieutenant Governor’s office. Then, he unveiled a proposed biennial state budget that called for 12% cuts in higher education and state agencies. However, at that time he did not support a higher budget proposal with a cigarette tax increase for additional revenue. Later, Beshear’s proposed 70-cents-per-pack increase was roundly rejected.
On Feb. 14 Beshear finally rolled out his proposal for casino gambling in Kentucky – the centerpiece of his gubernatorial campaign last year. However, the language in a proposed state constitutional amendment was complex and cumbersome, called for 12 casinos, and the proposal in that form went nowhere in the General Assembly. All the while House Democratic leaders in the background were splitting over the details of a casino proposal – a fiasco that finally bubbled up to the surface and involved the removal of a House Democrat from a committee because she didn’t support the casino version favored by one faction of House Democratic leadership.
Lawmakers of both parties blamed Beshear for not being more “engaged” in the legislative process. Beshear has countered that he wanted legislators to feel independent to make their own decisions free from the heavy hand of the Governor.
Clinton Maintains 36% Lead
No change in US Sen. Hillary Clinton’s (D-NY) 36% lead over US Sen. Barack Obama (D-IL) was reported in SurveyUSA.com’s latest Kentucky poll released on Apr. 29. The state poll carries a 4.1% margin for error. The following are comments by the organization’s editor about this poll:
“No Change in Democratic Presidential Contest in Kentucky – Clinton Still 2:1 Atop Obama: In a Democratic Primary in Kentucky today, 04/29/08, three weeks until votes are counted, Hillary Clinton decisively defeats Barack Obama, 63% to 27%. In three SurveyUSA tracking polls over the past 30 days, there is no movement in the contest. Obama gains a little bit of ground in Greater Louisville, but loses an equivalent amount in other portions of the state.”
Clinton was in Louisville and southern Indiana on May 1. While in Louisville, she met with members of The Courier-Journal’s editorial board and stopped by her Louisville headquarters on Bardstown Road in the Highlands to thank volunteers.
Chandler Endorses Obama, Almost Concedes KY Defeat
Chandler – now US Representative in CD-6 – became the second state Democratic super-delegate to announce support for Obama’s presidential candidacy. US Rep. John Yarmuth (D-KY3) was the first. Chandler chose Yarmuth’s district instead of his own Lexington-centered district to make his Apr. 29 announcement saying that he was trying to help Obama’s effort in the May 6 Indiana Democratic primary.
“I’ve listened to the man. I have met with him and, like many of you, I am excited by his message of change for the future,” Chandler told about 40 Obama supporters in downtown Louisville, according to a story by The Herald-Leader’s Ryan Alessi posted on Apr. 29 at the newspaper’s polwatchers.typepad.com. Chandler virtually wrote off Obama’s chances in Kentucky as he trails Clinton by 36%. “He understands it’s uphill,” Chandler said of the candidate. “It’s going to be a difficult slog for him here in Kentucky.”
Three of the state’s quota of nine super-delegates to the Democratic National Convention have already committed to Clinton: national committeeman Terry McBrayer, and national committeewomen JoEtta Wickliffe and Moretta Bosley. Beshear, KY Democratic Party chairwoman Jennifer Moore and vice-chairman Nathan Smith are undecided. A ninth “at-large” super-delegate will be chosen at the state Democratic convention on June 7. There are about 794 super-delegates along with about 3,260 pledged delegates who altogether will decide the Democratic presidential nominee at the Denver convention beginning on Aug. 25.
This column previously covered the fact that millionaire Louisville businessman Greg Fischer is the only one of seven Democrats running for the US Senate who has not signed a pledge requested by Moore to not run a negative campaign. As expected, Fischer began an attack ad on Apr. 25 faulting opponent and multi-millionaire Louisville businessman Bruce Lunsford for allegedly ejecting seniors from nursing homes owned and operated by Vencor Inc. that Lunsford headed in the 1990’s.
Lunsford campaign spokeswoman Allison Haley denied the ad’s claims, according to a story by The Associated Press’ Bruce Schreiner that was postedon Apr. 25 by The Cincinnati Enquirer at its nky.com. Haley said that the few isolated incidents in which patients were ejected were contrary to company policy and Lunsford’s own personal views, and that, when Lunsford found out about them, he immediately intervened to invite the patients back. At one time Vencor was a Fortune 500 company, but suffered major losses in the late 1990’s as massive Medicare reimbursement cuts were ordered in connection with the 1997 US balanced budget act. Vencor entered Chapter 11 bankruptcy in 1999, reorganized, and emerged from bankruptcy in 2001 as the newly-named Kindred Healthcare – now again a successful company.
In answer to questions, Fischer state campaign manager Kim Geveden admitted to Schreiner that the elderly woman who appears in the ad was never a Vencor patient, and Geveden told Schreiner that the woman was not paid to speak on camera. The woman does not claim in the ad to be a relative of a patient but says in the ad that Lunsford is “the last person” whom she would want in the US Senate. She also talks about Vencor patients who were ejected from company facilities.
Brammer’s Apr. 27 story described the woman as a “paid actress” – contrary to Geveden’s claim – but Brammer did not state the source for that report in his story. The woman is characterized as an “elderly actress” in an Apr. 26 story by The Courier-Journal’s Joseph Gerth. Lunsford campaign official Achim Bergmann told Gerth that the fact that Fischer used an actress in the ad is “unbelievable…I’ve been doing political campaigns for 16 years and I’ve never seen anything like it before.”
Fischer has also put up a web site describing the “baggage” that Lunsford brings to the race, according to a story by WHAS-TV’s Mark Hebert posted on Apr. 28 at whas11.com. Hebert reported that he received an envelope with a “cutesy” luggage tag to promote the web site. The tag read, “The Lunsford Collection offers a well-known brand of baggage. After years of hefty advertising investment, customers have come to know The Lunsford Collection name, but it’s time they knew the features. It’s heavy, it’s dirty. And, Bruce wants Kentucky Democrats to carry it for him.”
Lunsford has aired three ad’s so far that point out the failed partisanship in Congress and imply that US Senate Minority Leader Mitch McConnell (R-KY), who is seeking a fifth term, is largely responsible. Lunsford also has put up an ad rebutting Fischer’s Vencor claims. One other Democrat – Dr. Michael Cassaro of Prospect – has indicated that he will run ad’s in May. The other four Democrats are running very limited campaigns and only figure to impact the race by helping to divide the anti-Lunsford vote.
Lunsford is heavily favored to win the Democratic nomination. SurveyUSA.com’s latest Apr. 29 poll showed Lunsford at 43% with a dominating 25% lead over Fischer at 18% while Cassaro and the others trail Fischer. A total of 18% said that they are undecided or would prefer candidates other than the ones who are running. The poll included responses from 555 Democrats who are likely to vote and has a 4.2% margin for error.
With Lunsford now having virtually moved into “presumptive Democratic nominee” territory, The Courier-Journal’s R. G. Dunlop wrote a front-page story about Lunsford that was published on Apr. 27. The story went into depth about Vencor, Lunsford’s two failed races for Governor in 2003 and 2007, that he spent about $14 million of his own money in those two races, and that he endorsed Fletcher in 2003 – a mistake for which Lunsford has on several occasions apologized. Dunlop reported that, according to the Center for Responsive Politics (“CRP”), 35 of 39 US Senate candidates since 2000 who gave their campaigns $500,000 did not get elected to the Senate. The four who did get elected were then holding, or had previously held, other major elective offices. Lunsford has already contributed over $1 million to his Senate campaign. Thus, Lunsford, who has never held political office, will be aiming at a target that no one in recent years has hit.
“The question is, can this challenger make himself viable,” said Bruce Oppenheimer, a professor of public policy and education at Vanderbilt University who has written extensively about Congress, according to Dunlop’s story. “Money can buy name identification, but does that make him viable against a four-term incumbent?”
McConnell, who is opposed in the May 20 primary by “no-name” Republican truck driver Daniel Essek, has brought in over $12 million since he was last re-elected in 2002. Dunlop reported that only one US Senate candidate in the 35 Senate races being contested this year has raised more funds than McConnell, according to CRP data. McConnell said that Republicans have a “pretty slim” chance to achieve control of the US Senate in the November election, according to Schreiner’s story posted on Apr. 26 by The Herald-Leader at its Kentucky.com. The current Senate line-up stands at 49-49 with two independents voting with the Democrats for organizational purposes. McConnell said that Republicans have many more seats to defend than Democrats this year. About one-third of the 100 US Senators’ terms expire every two years.
In an unprecedented move, four top Democratic elected officials rebuked Fischer and urged him to take down the Vencor ad calling it a “character attack” emblematic of why DC politics is wrong and should be changed, according to Alessi’s May 1 story at polwatchers. The group of four who signed the May 1 letter to Fischer are the following: Yarmuth, Mongiardo, Conway, and state Auditor Crit Luallen. None of the four have publicly endorsed Lunsford.
The group, calling themselves “concerned Kentuckians” in the letter, insists that Fischer “remove your personal attack ad from the air immediately, take the high road, and spend the final weeks of the primary running a campaign focused on why you are right for the job, not divisive character attacks that are part of the reason Washington needs to change.” Elsewhere the letter says, “Your campaign has launched a personal attack against a fellow Democrat’s character. By doing so, your campaign is playing right into Senator McConnell’s hands and is endangering the opportunity for change this November.”
Fischer called a press conference to respond to the letter and flatly rejected the plea to take down the ad. “The fact that we’re airing them has clearly struck a raw nerve,” Fischer said. He said that voters should have information “to be able to compare the past performance and the record of each of the candidates.” He added, “My record is an open book.”
“It’s a shame that Greg Fischer continues to do Mitch McConnell’s dirty work. Every day we’re hearing from Democrats all over the state who are unhappy about his tactics,” Haley said, according to Schreiner’s May 1 story at nky.com.
Louisville lawyer Andrew Horne, who was the first to file for the Democratic nomination but who withdrew in February, also criticized Fischer for running the Vencor ad. Horne, who has endorsed Lunsford, sent an Apr. 30 e-mail in part stating as follows: “…I understand the personal competitiveness that can influence decision making in a political campaign and it can make the advice of others seem more attractive than it would in other circumstances. Still, the buck stops with Greg. I call on him to do the right and honorable thing and discontinue the scandalous attacks on Democrat Bruce Lunsford….” Horne ran unsuccessfully against Yarmuth in the 2006 primary. Horne, a retired Marine Lieutenant Colonel, is a veteran of both the current Iraq War and the 1991 Persian Gulf War.
Since upsetting former US Rep. Anne Northup (R-KY3) in 2006,Yarmuth has raised more than $1.093 million and has about $811,000 currently on hand. Northup, who last year unsuccessfully tried to deny Fletcher his party’s gubernatorial re-nomination, is making her bid to re-capture her old seat actually her third race in three years. So far Northup has collected over $461,000 and has about $428,000 in banks, according to a story by The Courier-Journal’s James R. Carroll posted by the newspaper on Apr. 15 at its political blog at courier-journal.com.
Yarmuth is among 24 Democrats that the Republican Congressional Campaign Committee has targeted for extinction, according to the Southern Political Report as covered in an Apr. 9 story in The Kentucky Gazette. Most are freshman lawmakers like Yarmuth who is running unopposed in the Democratic primary. Northup has Republican primary opposition from party maverick and real estate developer Chris Thieneman, long-time GOP warhorse Corley Everett, and unknown Bob Devore Jr.
State Sen. Brett Guthrie (R-Bowling Green) almost doubled the combined fund-raising efforts of both Democratic candidates as the three contend for the seat to be vacated by US Rep. Ron Lewis (R-KY2) on Dec. 31. Guthrie is running unopposed in the GOP primary and brought in about $402,000 by Mar. 31. Guthrie’s efforts were high-lighted by a guest appearance at one of his Lexington fund-raisers by Vice-Pres. Dick Cheney last month. The two Democrats include Daviess County Judge Reid Haire who collected about $203,000 during the period and state Sen. David Boswell (D-Owensboro) who reported raising only about $34,000.
Boswell said that, because he has been concentrating on the just concluded legislative session, his fund-raising has started slowly. “At the end of the day, we’ll have more than ample money to get through this primary,” Boswell said, according to a story by Schreiner that was posted on Apr. 16 at nky.com. Boswell thinks that his name ID outside Daviess County will be worth a lot compared to Haire’s. Before becoming a senator in 1990, Boswell served four terms in the state House and one term as the state-wide Commissioner of Agriculture.
Apr. 27 – The Cincinnati Enquirer’s Patrick Crowley at nky.com: “Frankfort flounders, sputters”
“Frankfort is broke, and not just when it comes to money; but broke as in broken.
“Major pieces of legislation fail without even going to a vote. Republicans and Democrats fight against each other and with each other. Weeks are wasted and then attempts are made to slam legislation through at literally the last minute of the 60-day session.
“Even longer; this year, lawmakers actually stopped clocks to pass some bills, raising all sorts of constitutional questions about bills passed after the April 15 midnight deadline.
“Special interests like unions and anti-tax groups have more clout than Kentucky citizens. There’s more backbone in the jellyfish tank at the Newport Aquarium than in the House and Senate chambers.
“Give people a chance to vote on casino gambling? No chance; it dies without even going to a vote in the House or Senate.
“Raise cigarette taxes to bring in some badly needed revenue for teachers’ raises, infrastructure projects and human services while reducing the frighteningly high rates of teen smoking in this state? No way; legislators flat out tell people if they vote for a tax increase they won’t get re-elected. If that doesn’t speak volumes about lawmakers’ motivations, nothing does.
“Reform a public employee pension system that is $26 billion in the hole and set to go broke in 14 years without a fix? Please; lawmakers fought for weeks over the language of the bill and then House Democrats let the teachers’ union muscle them into inaction.
“Never mind that fixing the system was everyone’s priority in Frankfort when the session started and local officials from across the state have been pleading for action. Sorry cities and counties, constituencies had to be greased….”
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Lawreader: